[Draft--8/20/98]
THIS INDENTURE among UNION PACIFIC RESOURCES
GROUP INC., a Utah corporation (hereinafter called
the "Company" and in its capacity as the guarantor
with respect to the Securities (as hereinafter
defined) issued by any of the Subsidiary Issuers (as
hereinafter defined), the "Guarantor") having its
principal office at 000 Xxxxxx Xxxxxx, Xxxx Xxxxx,
Xxxxx 00000, UNION PACIFIC RESOURCES INC., an Alberta
corporation ("UPRI"), having its principal executive
office at 400, 425 First Street, S.W., Calgary,
Alberta, Canada T2P 4V4, UPR CAPITAL COMPANY, a Nova
Scotia unlimited liability company ("UPR Capital"
and, together with UPRI, the "Subsidiary Issuers")
and THE BANK OF NEW YORK, a New York banking
association, trustee (hereinafter called the
"Trustee"), is made and entered into as of this th
day of 199 . The Company and the Subsidiary
Issuers, each in its capacity as an Issuer of
Securities is herein referred to as an "Issuer".
Recitals of the Company
Each of the Issuers and the Guarantor has duly authorized the
execution and delivery of this Indenture to provide for the issuance of
debentures, notes, bonds or other evidences of indebtedness, to be issued in one
or more fully registered series.
All things necessary to make this Indenture a valid agreement
of each of the Issuers and the Guarantor, in accordance with its terms, have
been done.
Agreements of the Parties
To set forth or to provide for the establishment of the terms
and conditions upon which the Securities are and are to be authenticated, issued
and delivered, and in consideration of the premises and the purchase of
Securities by the Holders thereof, it is mutually covenanted and agreed as
follows, for the equal and proportionate benefit of all Holders of the
Securities or of a series thereof, as the case may be:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions. For all purposes of this Indenture
and of any indenture supplemental hereto, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act,
either directly or by reference therein, have the meanings assigned to
them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted in the United
States of America at the date of such computation,
2
(4) all references in this instrument to designated
"Articles", "Sections" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this instrument as
originally executed. 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; and
(5) "including" and words of similar import shall be deemed to
be followed by "without limitation".
(6) all references to the "applicable Issuer" are to the
Issuer of the Securities being described;
(7) all references to the "Guarantee" and the "Guarantor" are
operative only where a Subsidiary Issuer is, was or may become the
Issuer of the relevant series of Securities, and only with respect to
such series of Securities.
Certain terms, used principally in Article Six, are defined in
that Article.
"Act", when used with respect to any Securityholder, has the
meaning specified in Section 104.
"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.
"Authenticating Agent" means any Person authorized by the
Trustee to authenticate Securities under Section 614.
"Board of Directors" when used with reference to any of the
Issuers or the Guarantor means either the board of directors of such Issuer or
the Guarantor, as the case may be, or any duly authorized committee of that
board.
"Board Resolution" when used with reference to any of the
Issuers or the Guarantor means a copy of a resolution certified by the Secretary
or an Assistant Secretary of such Issuer or the Guarantor, as the case may be,
to have been duly adopted by the Board of Directors of such Issuer or the
Guarantor, as the case may be, and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day" means each day which is neither a Saturday,
Sunday or other day on which banking institutions in the pertinent Place or
Places of Payment are authorized or required by law or executive order to be
closed.
"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 under the Trust
Indenture Act, then the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request", "Company Order" and "Company Consent" when
used with reference to any of the Issuers or the Guarantor shall mean,
respectively, a written request, order or consent signed in the name of such
Issuer or the Guarantor, as the case may be, by its Chairman of
3
the Board, President or a Vice President, and by its Treasurer, an Assistant
Treasurer, Controller, an Assistant Controller, Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the
Trustee in New York, New York at which at any particular time its corporate
trust business shall be principally administered, which office at the date
hereof is located at 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New York,
10286, attention: Corporate Trust Administration.
"Debt" means indebtedness for money borrowed.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, unless otherwise specified by the Company
pursuant to either Section 204 or 301, with respect to Securities of any series
issuable or issued as a Global Security, The Depository Trust Company, New York,
New York, or any successor thereto registered as a clearing agency under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation.
"Domestic Subsidiary" means a Subsidiary of the Company which
is incorporated or conducting its principal operations within the United States
of America or any State thereof or off the coast of the United States of America
but within an area over which the United States of America or any State thereof
has jurisdiction.
"Event of Default" has the meaning specified in Article Five.
"Funded Debt" of any Person means all indebtedness for
borrowed money created, incurred, assumed or guaranteed in any manner by such
Person, and all indebtedness, contingent or otherwise incurred or assumed by
such Person in connection with the acquisition of any business, property or
asset, which in each case matures more than one year after, or which by its
terms is renewable or extendible or payable out of the proceeds of similar
indebtedness incurred pursuant to the terms of any revolving credit agreement or
any similar agreement at the option of such Person for a period ending more than
one year after the date as of which Funded Debt is being determined; provided,
however, that Funded Debt shall not include (i) any indebtedness for the
payment, redemption or satisfaction of which money (or evidences or
indebtedness, if permitted under the instrument creating or evidencing such
indebtedness) in the necessary amount shall have been irrevocably deposited in
trust with a trustee or proper depository either on or before the maturity or
redemption date thereof or (ii) any indebtedness of such Person to any of its
Subsidiaries or of any Subsidiary to such Person or any other Subsidiary or
(iii) any indebtedness incurred in connection with the financing of operating,
construction or acquisition projects, provided that the recourse for such
indebtedness is limited to the assets of such projects.
"Global Security" means with respect to any series of
Securities issued hereunder, a Security which is executed by the applicable
Issuer and authenticated and delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction, and which the Guarantor executed, as
applicable, the notation of any Guarantee pursuant to Article Twelve all in
accordance with this Indenture and an indenture supplemental hereto, if any, or
Board Resolution and pursuant to a Company Request, which shall be registered in
the name of the Depositary or its nominee and which shall represent, and shall
be denominated in an amount equal to the aggregate principal amount of, all of
the Outstanding Securities of such series or any portion thereof, in either case
having the same terms including, without limitation, the same original issue
date, date or dates on which principal is due, and interest rate or method of
determining interest.
"Guarantee" means the irrevocable and unconditional guarantee
by the Guarantor of any Security of any series of any Subsidiary Issuer
authenticated and delivered (i) as contemplated by Section 301 and endorsed on
such Security, if specified in a Board Resolution of the Guarantor, or (ii)
otherwise pursuant to Article Twelve.
4
"Guarantor" means the Person named as the "Guarantor" in the
first paragraph of this instrument until any successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean any such successor Person.
"Holder", when used with respect to any Security, means a
Securityholder.
"Indenture" or "this Indenture" means this instrument as
originally executed or as it may from time to time be supplemented or amended by
one or more indentures supplemental hereto entered into pursuant to the
applicable provisions hereof and shall include the terms of particular series of
Securities established as contemplated by Section 301.
"Independent", when used with respect to any specified Person,
means such a Person who (i) is in fact independent, (2) does not have any direct
financial interest or any material indirect financial interest in the applicable
Issuer or the Guarantor or in any other obligor upon the Securities or in any
Affiliate of the applicable Issuer or the Guarantor or of such other obligor,
and (3) is not connected with the applicable Issuer or the Guarantor or such
other obligor or any Affiliate of the applicable Issuer or the Guarantor or of
such other obligor, as an officer, employee, promoter, underwriter, trustee,
partner, director or person performing similar functions. Whenever it is herein
provided that any Independent Person's opinion or certificate shall be furnished
to the Trustee, such Person shall be appointed by a Company Order and approved
by the Trustee, and such opinion or certificate shall state that the signer has
read this definition and that the signer is Independent within the meaning
hereof.
"Interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, means
interest payable after Maturity.
"Interest Payment Date", when used with respect to any series
of Securities, means the Stated Maturity of any installment of interest on those
Securities.
"Issuer" means (i) any of the Persons named as an "Issuer" in
the first paragraph of this instrument until any successor Person shall have
become such pursuant to the applicable provisions of this Indenture in respect
of any such Person, and thereafter "Issuer", in respect of such Person shall
mean any such successor Person, and (ii) when used with respect to Securities,
shall mean the Issuer of Securities of the relevant series.
"Maturity", when used with respect to any Securities, means
the date on which the principal of any such Security becomes due and payable as
therein or herein provided, whether on a Repayment Date, at the Stated Maturity,
or by declaration of acceleration, call for redemption or otherwise.
"Mortgage" means any mortgage, pledge, lien, encumbrance,
charge or security interest of any kind.
"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 Controller, an Assistant Controller, the Secretary
or an Assistant Secretary of the Company, and delivered to the Trustee. Wherever
this Indenture requires that an Officers' Certificate be signed also by an
engineer or an accountant or other expert, such engineer, accountant or other
expert (except as otherwise expressly provided in this Indenture) may be in the
employ of the applicable Issuer or the Guarantor, and shall be acceptable to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may (except as otherwise expressly provided in this Indenture) be an employee of
or of counsel to the applicable Issuer or the Guarantor. Such counsel shall be
acceptable to the Trustee, whose acceptance shall not be unreasonably withheld.
5
"Original Issue Discount Security" means (i) any Security
which provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity thereof, and (ii)
any other Security deemed an Original Issue Discount Security for United States
Federal income tax purposes.
"Outstanding", when used with respect to Securities or
Securities of any series, means, as of the date of determination, all such
Securities theretofore authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancelation,
(ii) such Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent in trust for the Holders of such Securities; provided
that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made; and
(iii) such Securities in exchange for or in lieu of which
other Securities have been authenticated and delivered pursuant to this
Indenture, or which shall have been paid pursuant to the terms of
Section 306 (except with respect to any such Security as to which proof
satisfactory to the Trustee is presented that such Security is held by
a person in whose hands such Security is a legal, valid and binding
obligation of the Company).
In determining whether the Holders of the requisite principal amount of such
Securities Outstanding have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, (i) the principal amount of any Original
Issue Discount Security that shall be deemed to be Outstanding shall be the
amount of the principal thereof that would be due and payable as of the date of
the taking of such action upon a declaration of acceleration of the Maturity
thereof and (ii) Securities owned by the applicable Issuer, the Guarantor or any
other obligor upon the Securities or any Affiliate of the applicable Issuer, the
Guarantor or of such other obligor shall be disregarded and deemed not to be
Outstanding. 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 assigned to the corporate
trust department of the Trustee knows to be owned by the applicable Issuer, the
Guarantor or any other obligor upon the Securities or any Affiliate of the
applicable Issuer, the Guarantor or such other obligor 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 to act as owner with respect to such Securities and that the
pledgee is not the applicable Issuer, the Guarantor or any other obligor upon
the Securities or any Affiliate of the applicable Issuer, the Guarantor or such
other obligor.
"Paying Agent" means any Person authorized by any Issuer to
pay the principal of (and premium, if any) or interest on any Securities on
behalf of such Issuer.
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment" means with respect to any series of
Securities issued hereunder the city or political subdivision so designated with
respect to the series of Securities in question in accordance with the
provisions of Section 301.
"Predecessor Securities" 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 306 in lieu of a lost,
destroyed or stolen Security shall be deemed to evidence the same debt as the
lost, destroyed or stolen Security.
6
"Principal Property" means (i) any property owned or leased by
the applicable Issuer, the Guarantor or any Subsidiary of the applicable Issuer
or the Guarantor, or any interest of the applicable Issuer, the Guarantor or any
Subsidiary of the applicable Issuer or the Guarantor in property, located within
the United States of America or any State thereof (including property located
off the coast of the United States of America held pursuant to lease from any
Federal, State or other governmental body) which is considered by the applicable
Issuer or the Guarantor to be capable of producing oil or gas or minerals in
commercial quantities and (ii) any refinery, smelter or processing or
manufacturing plant owned or leased by the applicable Issuer, the Guarantor or
any Subsidiary of the applicable Issuer or the Guarantor and located within the
United States of America or any State thereof, except (a) facilities related
thereto employed in transportation, distribution or marketing or (b) any
refinery, smelter or processing or manufacturing plant, or portion thereof,
which the Board of Directors declares is not material to the business of the
applicable Issuer or the Guarantor and their respective subsidiaries taken as a
whole.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price specified in the Security at which it is to be
redeemed pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Security
on any Interest Payment Date means the date specified in such Security as the
Regular Record Date.
"Repayment Date", when used with respect to any Security to be
repaid, means the date fixed for such repayment pursuant to such Security.
"Repayment Price", when used with respect to any Security to
be repaid, means the price at which it is to be repaid pursuant to such
Security.
"Responsible Officer", when used with respect to the Trustee,
means the chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer, trust officer, or assistant trust officer, the controller
and any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary of the Company
which owns or leases (as lessor or lessee) a Principal Property but does not
include the Subsidiary Issuers or any Subsidiary of the Company the principal
business of which is leasing machinery, equipment, vehicles or other properties
none of which is a Principal Property or financing accounts receivable, or
engaging in ownership and development of any real property which is not a
Principal Property.
"Security" or "Securities" means any note or notes, bond or
bonds, debenture or debentures, or any other evidences of indebtedness. as the
case may be, of any series authenticated and delivered from time to time under
this Indenture.
"Security Register" shall have the meaning specified in
Section 305.
"Security Registrar" means the Person who keeps the Security
Register specified in Section 305.
"Securityholder" means a Person in whose name a Security is
registered in the Security Register.
7
"Special Record Date" for the payment of any Defaulted
Interest (as defined in Section 307) means a date fixed by the Trustee pursuant
to Section 307.
"Stated Maturity" when used with respect to any Security or
any installment of principal thereof or interest thereon means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" of any specified Person means any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by the specified Person or by one or more of its
Subsidiaries, or both.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939, as amended by the Trust Indenture Reform Act of 1990, as in force at
the date as of which this instrument was executed except as provided in Section
905 and except to the extent that any subsequent amendment thereto shall
retroactively apply to this Indenture.
"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 and include each Person who is then a Trustee hereunder. If
at any time there is more than one such Person, "Trustee" as used with respect
to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Unrestricted Subsidiary" means any Subsidiary which is not a
Restricted Subsidiary.
"Vice President" when used with respect to the applicable
Issuer, the Guarantor 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", including, without limitation, an assistant vice president.
"Voting Stock", as applied to the stock of any corporation,
means stock of any class or classes (however designated) having by the terms
thereof ordinary voting power to elect a majority of the members of the board of
directors (or other governmental body) of such corporation other than stock
having such power only by reason of the happening of a contingency.
Section 102. Compliance Certificates and Opinions. Upon any
application or request by the applicable Issuer or the Guarantor to the Trustee
to take any action under any provision of this Indenture, such Issuer and the
Guarantor 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 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 (except for the written
statement required by Section 1004) shall include
(1) a statement that each individual signing such certificate
or opinion has read and understands 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 that he believes is
necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been compiled with; and
8
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. 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 the other matters, and any such Person may certify, or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of an Issuer or the
Guarantor 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 such
Issuer or the Guarantor stating that the information with respect to such
factual matters is in the possession of such Issuer or the Guarantor 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 104. Acts of Securityholders. (a) Any request, demand,
authorization, direction, notice, consent. waiver or other action provided by
this Indenture to be given or taken by Securityholders or Securityholders of any
series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders 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
applicable Issuer and the Guarantor. If any Securities are denominated in coin
or currency other than that of the United States, then for the purposes of
determining whether the Holders of the requisite principal amount of Securities
have taken any action as herein described, the principal amount of such
Securities shall be deemed to be that amount of United States dollars that could
be obtained for such principal amount on the basis of the spot rate of exchange
into United States dollars for the currency in which such Securities are
denominated (as evidenced to the Trustee by an Officers' Certificate) as of the
date the taking of such action by the Holders of such requisite principal amount
is evidenced to the Trustee as provided in the immediately preceding sentence.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders
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 601 ) conclusive in favor of
the Trustee and the applicable Issuer and the Guarantor, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness to such
execution or by the certificate of any notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by an officer of a corporation or a member of a partnership, on
behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
9
(d) If the applicable Issuer or the Guarantor shall solicit
from the Holders any request, demand, authorization, direction, notice. consent,
waiver or other action, such Issuer or the Guarantor may, at its option, by
Board Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other action, but such Issuer or the Guarantor shall have no
obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Securities
Outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that
purpose the Securities Outstanding shall be computed as of the record date;
provided that no such authorization, agreement or consent by the Holders on the
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the record
date.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Security shall bind the
Holder of every Security issued upon the transfer thereof or in exchange
therefor or in lieu thereof, in respect of anything done 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 105. Notices, etc., to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Securityholders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Securityholder or by the Company shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
at 000 Xxxxxxx Xxxxxx, Xxxxx 21 West, New York, New York, 10286,
attention: Corporate Trust Administration, or at any other address
previously furnished in writing by the Trustee, or
(2) an Issuer or the Guarantor by the Trustee or by any
Securityholder shall be sufficient for every purpose hereunder (except
as provided in Section 501(4) or, in the case of a request for
repayment, as specified in the Security carrying the right to
repayment) if in writing and mailed, first-class postage prepaid, to
such Issuer or the Guarantor addressed to it at the address of its
principal office specified in the first paragraph of this instrument or
at any other address previously furnished in writing to the Trustee by
the Company.
Section 106. Notices to Securityholders; Waiver. Where this
Indenture or any Security provides for notice to Securityholders of any event,
such notice shall be sufficiently given (unless otherwise herein or in such
Security expressly provided) if in writing and mailed, first-class postage
prepaid, to each Securityholder affected by such event, at his address as it
appears in the Security 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 Securityholders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Securityholder shall affect the sufficiency of such notice with respect to other
Securityholders. Where this Indenture or any Security provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Securityholders 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
as a result of a strike, work stoppage or otherwise, it shall be impractical to
mail notice of any event to any Securityholder when such notice is required to
be given pursuant to any provision of this Indenture, then any method of
notification as shall be satisfactory to the Trustee, the applicable Issuer and
the Guarantor shall be deemed to be a sufficient giving of such notice.
10
Section 107. Conflict with Trust Indenture Act. If any
provision hereof limits, qualifies or conflicts with the duties imposed by any
of Sections 310 to 317, inclusive, of the Trust Indenture Act through the
operation of Section 318(c)thereof, or with the duties imposed by any of
Sections 77 to 88, inclusive, of the Business Corporation Act (Alberta) such
imposed duties shall control.
Section 108. 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 109. Successors and Assigns. All covenants and
agreements in this Indenture by any Issuer or the Guarantor shall bind its
successors and assigns, whether so expressed or not.
Section 110. 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 111. Benefits of Indenture. Nothing in this Indenture
or in any Securities, express or implied, shall give to any Person, other than
the parties hereto and their successors hereunder, any Authenticating Agent or
Paying Agent, the Security Registrar and the Holders of Securities (or such of
them as may be affected thereby), any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 112. Governing Law. This Indenture shall be
construed in accordance with and governed by the laws of the State of New York.
Section 113. Counterparts. This instrument may be executed
in any number of counterparts, each of which so executed shall be deemed to be
an original, but all such counterparts shall together constitute but one and the
same instrument.
Section 114. Judgment Currency. Each of the Issuers and the
Guarantor agrees, to the fullest extent that it may effectively do so under
applicable law, that (a) if for the purpose of obtaining judgment in any court
it is necessary to convert the sum due in respect of the principal of, or
premium or interest, if any, on the Securities of any series (the "Required
Currency") into a currency in which judgment will be rendered (the "Judgment
Currency"), the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in the City of New
York the Required Currency with the Judgment Currency on the New York Banking
Day (as defined below) preceding that on which final unappealable judgment is
given and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, or any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alterative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, "New York Banking Day" means any
day except a Saturday, Sunday or a legal holiday in the City of New York or a
day on which banking institutions in the City of New York are authorized or
required by law or executive order to close.
11
ARTICLE TWO
Security Forms
Section 201. Forms Generally. The Securities shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon,
as may be required to comply with applicable laws or regulations or with the
rules of any securities exchange, or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. Any portion of the text of any Security may be set
forth on the reverse thereof, with an appropriate reference thereto on the face
of the Security.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities, subject, with respect to the Securities of any series, to the rules
of any securities exchange on which such Securities are listed.
Section 202. Forms of Securities. Each Security shall be in
one of the forms approved from time to time by or pursuant to a Board
Resolution, or established in one or more indentures supplemental hereto. Prior
to the delivery of a Security to the Trustee for authentication in any form
approved by or pursuant to a Board Resolution, the applicable Issuer shall
deliver to the Trustee the Board Resolution by or pursuant to which such form of
Security has been approved, which Board Resolution shall have attached thereto a
true and correct copy of the form of Security which has been approved thereby
or, if a Board Resolution authorizes a specific officer or officers to approve a
form of Security, a certificate of such officer or officers approving the form
of Security attached thereto. Any form of Security approved by or pursuant to a
Board Resolution must be acceptable as to form to the Trustee, such acceptance
to be evidenced by the Trustee's authentication of Securities in that form or a
certificate signed by a Responsible Officer of the Trustee and delivered to the
applicable Issuer.
Section 203. Form of Trustee's Certificate of Authentication.
The form of Trustee's Certificate of Authentication for any Security issued
pursuant to this Indenture shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within mentioned Indenture.
________________________________________
as Trustee,
By: _____________________________
Authorized Signatory
Dated: _______________________
12
Section 204. Securities Issuable in the Form of a Global
Security. (a) If the applicable Issuer shall establish pursuant to Sections 202
and 301 that the Securities of a particular series are to be issued in whole or
in part in the form of one or more Global Securities, then the applicable Issuer
and the Guarantor shall execute and the Trustee or its agent shall, in
accordance with Section 303 and the Company Request delivered to the Trustee or
its agent thereunder, authenticate and deliver, such Global Security or
Securities, which (i) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, the Outstanding Securities of such
series to be represented by such Global Security or Securities, or such portion
thereof as the applicable Issuer shall specify in a Company Request, (ii) shall
be registered in the name of the Depositary for such Global Security or
Securities or its nominee, (iii) shall be delivered by the Trustee or its agent
to the Depositary or pursuant to the Depositary's instruction and (iv) shall
bear a legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for the individual Securities represented hereby,
this Global Security may not be transferred except as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary."
(b) Notwithstanding any other provisions of this Section 204
or of Section 305, and subject to the provisions of paragraph (c) below, unless
the terms of a Global Security expressly permit such Global Security to be
exchanged in whole or in part for individual Securities, a Global Security may
be transferred, in whole but not in part and in the manner provided in Section
305, only to a nominee of the Depositary for such Global Security, or to the
Depositary, or a successor Depositary for such Global Security selected or
approved by the Company, or to a nominee of such successor Depositary.
(c) (i) If any time the Depositary for a Global Security
notifies the applicable Issuer that it is unwilling or unable to continue as
Depositary for such Global Security or if at any time the Depositary for the
Securities for such series ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, or other applicable statute or
regulation, the applicable Issuer shall appoint a successor Depositary with
respect to such Global Security. If a successor Depositary for such Global
Security is not appointed by the applicable Issuer within 90 days after the
applicable Issuer receives such notice or becomes aware of such ineligibility,
the applicable Issuer and the Guarantor will execute, and the Trustee or its
agent, upon receipt of a Company Request for the authentication and delivery of
individual Securities of such series in exchange for such Global Security, will
authenticate and deliver, individual Securities of such series of like tenor and
terms in an aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security.
(ii) The applicable Issuer may at any time and in its sole
discretion determine that the Securities of any series or portion thereof issued
or issuable in the form of one or more Global Securities shall no longer be
represented by such Global Security or Securities. Furthermore, if there shall
have occurred and be continuing an Event of Default or an event which, with the
giving of notice or lapse of time, or both, would constitute an Event of Default
with respect to any series of Securities, the Trustee may determine that the
Securities of such series shall no longer be represented by a Global Security or
Securities. In such event the applicable Issuer and the Guarantor will execute,
and the Trustee, upon receipt of a Company Request for the authentication and
delivery of individual Securities of such series in exchange in whole or in part
for such Global Security, will authenticate and deliver individual Securities of
such series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of such Global Security or Securities
representing such series or portion thereof in exchange for such Global Security
or Securities.
(iii) If specified by the applicable Issuer pursuant to
Sections 202 and 301 with respect to Securities issued or issuable in the form
of a Global Security, the Depositary for such Global Security may surrender such
Global Security in exchange in whole or in part for individual Securities of
such series of like tenor and terms in definitive form on such terms as are
acceptable to the applicable Issuer and such Depositary. Thereupon the
applicable Issuer and the Guarantor shall execute, and the Trustee or its agent
shall authenticate and deliver, without service charge, (1) to each
13
Person specified by such Depositary a new Security or Securities of the same
series of like tenor and terms and of any authorized denomination as requested
by such Person in aggregate principal amount equal to and in exchange for such
Person's beneficial interest in the Global Security; and (2) to such Depositary
a new Global Security of like tenor and terms and in an authorized denomination
equal to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities delivered to
the Holders thereof.
(iv) In any exchange provided for in any of the preceding
three paragraphs, the applicable Issuer and the Guarantor will execute and the
Trustee or its agent will authenticate and deliver individual Securities in
definitive registered form in authorized denominations. Upon the exchange of the
entire principal amount of a Global Security for individual Securities, such
Global Security, shall be canceled by the Trustee or its agent. Except as
provided in the preceding paragraph, Securities issued in exchange for a Global
Security pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or the Security Registrar. The Trustee or the Security
Registrar shall deliver such Securities to the Persons in whose names such
Securities are so registered.
Section 205. Form of Notation of Guarantees. UNION PACIFIC
RESOURCES GROUP INC., a Utah corporation (the "Guarantor", which term includes
any successor thereto under the Indenture (the "Indenture") referred to in the
Security on which this notation is endorsed) has unconditionally guaranteed,
pursuant to the terms of the Guarantees contained in Article Twelve of the
Indenture, the due and punctual payment of the principal of and any premium and
interest on this Security, when and as the same shall become due and payable,
whether at the Stated Maturity, by declaration of acceleration, call for
redemption, early repayment or otherwise, in accordance with the terms of this
Security and the Indenture.
The obligations of the Guarantor to the Holders of the
Securities and to the trustee pursuant to the Guarantees and the Indenture are
expressly set forth in Article Twelve of the Indenture, and reference is hereby
made to such Article and Indenture for the precise terms of the Guarantees.
The Guarantees shall not be valid or obligatory for any
purpose until the certificate of authentication on the Security upon which this
notation of the Guarantees is endorsed shall have been executed by the Trustee
under the Indenture by the manual signature of one of its authorized
signatories.
ARTICLE THREE
The Securities
Section 301. General Title; General Limitations; Issuable in
Series; Terms of Particular Series. The aggregate principal amount of Securities
which may be authenticated and delivered and Outstanding under this Indenture is
not limited.
The Securities may be issued in one or more series up to an
aggregate principal amount of Securities as from time to time may be authorized
by the Board of Directors of the applicable Issuer and the Guarantor. All
Securities of each series under this Indenture shall in all respects be equally
and ratably entitled to the benefits hereof with respect to such series without
preference, priority or distinction on account of the actual time of the
authentication and delivery or Stated Maturity of the Securities of such series.
Each series of Securities shall be created either by or
pursuant to a Board Resolution of the applicable Issuer and the Guarantor or by
or pursuant to an indenture supplemental hereto. The Securities of each such
series may bear such date or dates, be payable at such place or places, have
such Stated Maturity or Maturities, be issuable at such premium over or discount
from their face
14
value, bear interest at such rate or rates (which may be fixed or floating),
from such date or dates, payable in such installments and on such dates and at
such place or places to the Holders of Securities registered as such on such
Regular Record Dates, or may bear no interest, and may be redeemable or
repayable at such Redemption Price or Prices or Repayment Price or Prices, as
the case may be, whether at the option of the Holder or otherwise, and upon such
terms, all as shall be provided for in or pursuant to the Board Resolution of
the applicable Issuer and the Guarantor or in or pursuant to the supplemental
indenture creating that series. There may also be established in or pursuant to
a Board Resolution or in or pursuant to a supplemental indenture prior to the
issuance of Securities of each such series, provision for:
(1) the exchange or conversion of the Securities of that
series, at the option of the Holders thereof, for or into new
Securities of a different series or other securities or other property,
including shares of capital stock of the applicable Issuer or the
Guarantor or any subsidiary of such Issuer or the Guarantor or
securities directly or indirectly convertible into or exchangeable for
any such shares;
(2) a sinking or purchase fund or other analogous obligation;
(3) if other than U.S. dollars, the currency or currencies or
units based on or related to currencies (including European Currency
Units) in which the Securities of such series shall be denominated and
in which payments of principal of, and any premium and interest on,
such Securities shall or may be payable;
(4) if the principal of (and premium, if any) or interest, if
any, on the Securities of such series are to be payable, at the
election of the applicable Issuer or a holder thereof, in a currency or
currencies or units based on or related to currencies (including
European Currency Units) other than that in which the Securities are
stated to be payable, the period or periods within which, and the terms
and conditions upon which, such election may be made;
(5) if the amount of payments of principal of (and premium, if
any) or interest, if any, on the Securities of such series may be
determined with reference to an index based on (i) a currency or
currencies or units based on or related to currencies (including
European Currency Units) other than that in which the Securities are
stated to be payable, (ii) changes in the price of one or more other
securities or groups or indexes of securities or (iii) changes in the
prices of one or more commodities or groups or indexes of commodities,
or any combination of the foregoing, the manner in which such amounts
shall be determined;
(6) if the aggregate principal amount of the Securities of
that series is to be limited, such limitations;
(7) the exchange of Securities of that series, at the option
of the Holders thereof, for other Securities of the same series of the
same aggregate principal amount of a different authorized kind or
different authorized denomination or denominations, or both;
(8) the appointment by the Trustee of an Authenticating Agent
in one or more places other than the location of the office of the
Trustee with power to act on behalf of the Trustee and subject to its
direction in the authentication and delivery of the Securities of any
one or more series in connection with such transactions as shall be
specified in the provisions of this Indenture or in or pursuant to the
Board Resolution or the supplemental indenture creating such series;
(9) the portion of the principal amount of Securities of the
series, if other than the total principal amount thereof, which shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or provable in bankruptcy pursuant to Section
504;
15
(10) any Event of Default with respect to the Securities of
such series, if not set forth herein and any additions, deletions or
other changes to the Events of Default set forth herein that shall be
applicable to the Securities of such series (including a provision
making any Event of Default set forth herein inapplicable to the
Securities of that series);
(11) any covenant solely for the benefit of the Securities of
such series and any additions, deletions or other changes to the
provisions of Article Ten or any definitions relating to such Article
that shall be applicable to the Securities of such series (including a
provision making any Section of such Article inapplicable to the
Securities of such series);
(12) the applicability of Section 403 of this Indenture to the
Securities of such series;
(13) if the Securities of the series shall be issued in whole
or in part in the form of a Global Security or Global Securities, the
terms and conditions, if any, upon which such Global Security or Global
Securities may be exchanged in whole or in part for other individual
Securities; and the Depositary for such Global Security or Global
Securities (if other than the Depositary specified in Section 101
hereof);
(14) the subordination of the Securities of such series to any
other indebtedness of the Company, including without limitation, the
Securities of any other series; and
(15) any other terms of the series, which shall not be
inconsistent with the provisions of this Indenture,
all upon such terms as may be determined in or pursuant to a Board Resolution or
in or pursuant to a supplemental indenture with respect to such series. All
Securities of the same series shall be substantially identical in tenor and
effect, except as to denomination.
The form of the Securities of each series shall be established
pursuant to the provisions of this Indenture in or pursuant to the Board
Resolution or in or pursuant to the supplemental indenture creating such series.
The Securities of each series shall be distinguished from the Securities of each
other series in such manner, reasonably satisfactory to the Trustee, as the
Board of Directors of the applicable Issuer may determine.
Unless otherwise provided with respect to Securities of a
particular series, the Securities of any series may only be issuable in
registered form, without coupons.
Any terms or provisions in respect of the Securities of any
series issued under this Indenture may be determined pursuant to this Section by
providing in a Board Resolution or supplemental indenture for the method by
which such terms or provisions shall be determined.
Section 302. Denominations. The Securities of each series
shall be issuable in such denominations and currency as shall be provided in the
provisions of this Indenture or in or pursuant to the Board Resolution or the
supplemental indenture creating such series. In the absence of any such
provisions with respect to the Securities of any series, the Securities of that
series shall be issuable only in fully registered form in denominations of
$1,000 and any integral multiple thereof.
Section 303. Execution, Authentication and Delivery and
Dating. The Securities shall be executed on behalf of each of the applicable
Issuer and any Guarantees to be endorsed in the Securities shall be executed on
behalf of the Guarantor by its Chairman of the Board, its President, one of its
Vice Presidents or its Treasurer. The signature of any of these officers on the
Securities and the Guarantees, as the case may be, may be manual or facsimile.
The notation any Guarantees endorsed on the Securities shall be executed as
provided in Section 205.
Securities or Guarantees, as the case may be, bearing the
manual or facsimile signatures of individuals who were at any time the proper
officers of the applicable Issuer or the Guarantor shall bind such Issuer or
Guarantor, as the case may be, notwithstanding that such
16
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or Guarantees or did not hold
such offices at the date of such Securities or Guarantees.
At any time and from time to time after the execution and
delivery of this Indenture, the applicable Issuer may deliver Securities
executed by it bearing the notation of any Guarantees endorsed thereon, as
applicable, in each case executed by the Guarantor to the Trustee for
authentication; and the Trustee shall, upon Company Order, authenticate and
deliver such Securities as in this Indenture provided and not otherwise.
Prior to any such authentication and delivery, the Trustee
shall be entitled to receive, in addition to any Officers' Certificate and
Opinion of Counsel required to be furnished to the Trustee pursuant to Section
102, and the Board Resolution and any certificate relating to the issuance of
the series of Securities required to be furnished pursuant to Section 202, an
Opinion of Counsel stating that:
(1) all instruments furnished to the Trustee conform to the
requirements of the Indenture and constitute sufficient authority
hereunder for the Trustee to authenticate and deliver such Securities;
(2) the form and terms (or in connection with the issuance of
medium-term Securities under Section 311, the manner of determining the
terms) of such Securities have been established in conformity with the
provisions of this Indenture;
(3) all laws and requirements with respect to the execution
and delivery by the applicable Issuer and, if applicable, the Guarantor
of such Securities and Guarantees, if applicable, have been complied
with, each of the applicable Issuer and the Guarantor, if applicable,
has the corporate power to issue such Securities and Guarantees, if
applicable, and such Securities and Guarantees, if applicable, have
been duly authorized and delivered by the applicable Issuer and, if
applicable, the Guarantor and, assuming due authentication and delivery
by the Trustee, constitute legal, valid and binding obligations of the
applicable Issuer and, if applicable, the Guarantor, respectively,
enforceable in accordance with their terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other laws and legal principles affecting creditors'
rights generally from time to time in effect and to general equitable
principles, whether applied in an action at law or in equity) and
entitled to the benefits of this Indenture, equally and ratably with
all other Securities and Guarantees, if applicable, of such series
Outstanding;
(4) the Indenture is qualified under the Trust Indenture Act;
and
(5) such other matters as the Trustee may reasonably request;
and, if the authentication and delivery relates to a new series of Securities
created by an indenture supplemental hereto, also stating that all laws and
requirements with respect to the form and execution by the applicable Issuer
and, if applicable, the Guarantor of the supplemental indenture with respect to
that series of Securities have been complied with, each of the applicable Issuer
and, if applicable, the Guarantor has corporate power to execute and deliver any
such supplemental indenture and has taken all necessary corporate action for
those purposes and any such supplemental indenture has been executed and
delivered and constitutes the legal, valid and binding obligation of the
applicable Issuer and, if applicable, the Guarantor enforceable in accordance
with its terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws and legal
principles affecting creditors' rights generally from time to time in effect and
to general equitable principles, whether applied in an action at law or in
equity.
The Trustee shall not be required to authenticate such
Securities if the issue thereof will adversely affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture.
17
Unless otherwise provided in the form of Security for any
series, all Securities shall be dated the date of their 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 of an authorized signatory,
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 304. Temporary Securities. Pending the preparation of
definitive Securities of any series, the applicable Issuer may execute, and the
Guarantor may execute, as applicable, the notation of any Guarantees pursuant to
Article Twelve or any Guarantees endorsed on and, upon receipt of the documents
required by Section 303, together with a Company Order, the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities or Guarantees or
notations of Guarantees may determine, as evidenced by their execution of such
Securities or Guarantees or notations, as the case may be.
If temporary Securities of any series are issued, the
applicable Issuer will cause definitive Securities of such series to be prepared
without unreasonable delay. After the preparation of definitive Securities, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the applicable Issuer in a Place of Payment,
without charge to the Holder; and upon surrender for cancelation of any one or
more temporary Securities the applicable Issuer shall execute and the Guarantor
shall execute, as applicable, the notation of any Guarantees pursuant to Article
Twelve or the Guarantees endorsed on and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
such series of authorized denominations and of like tenor and terms. Until so
exchanged the temporary Securities of such series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
Section 305. Registration, Transfer and Exchange. Each of the
Issuers shall keep or cause to be kept a register (herein sometimes referred to
as the "Security Register") in which, subject to such reasonable regulations as
it may prescribe, such Issuer shall provide for the registration of Securities,
or of Securities of a particular series, and for transfers of Securities or of
Securities of such series. Any such register shall be in written form or in any
other form capable of being converted into written form within a reasonable
time. At all reasonable times the information contained in such register or
registers shall be available for inspection by the Trustee at the office or
agency to be maintained by the applicable Issuer as provided in Section 1002.
Subject to Section 204, upon surrender for transfer of any
Security of any series at the office or agency of the applicable Issuer in a
Place of Payment, the applicable Issuer shall execute, and the Guarantor shall
execute, as applicable, the notation of any Guarantees pursuant to Article
Twelve or the Guarantees endorsed on and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities and the notation of Guarantees pursuant to Article Twelve or the
Guarantees endorsed thereon of such series of any authorized denominations, of a
like aggregate principal amount and Stated Maturity and of like tenor and terms.
Subject to Section 204, at the option of the Holder,
Securities of any series may be exchanged for other Securities of such series of
any authorized denominations, of a like aggregate principal amount and Stated
Maturity and of like tenor and terms, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, the applicable Issuer shall execute, and the Guarantor shall
execute, as applicable, the notation of any Guarantees pursuant to Article
Twelve or the Guarantees endorsed on and the Trustee shall authenticate and
deliver, the Securities and the notation of Guarantees pursuant to Article
Twelve or the Guarantees endorsed thereon which the Securityholder making the
exchange is entitled to receive.
18
All Securities issued upon any transfer or exchange of
Securities shall be the valid obligations of the applicable Issuer and, if
applicable, the Guarantor, evidencing the same debt, and entitled to the same
benefits under the Indenture, as the Securities surrendered upon such transfer
or exchange.
Every Security presented or surrendered for transfer or
exchange shall (if so required by the applicable Issuer or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the applicable Issuer and the Security Registrar duly executed,
by the Holder thereof or his attorney duly authorized in writing.
Unless otherwise provided in the Security to be transferred or
exchanged, no service charge shall be made on any Securityholder for any
transfer or exchange of Securities, but the applicable Issuer may (unless
otherwise provided in such Security) require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Securities, other than exchanges pursuant to
Section 304 or 906 not involving any transfer.
The applicable Issuer shall not be required (i) to issue,
transfer or exchange any Security of any series during a period beginning at the
opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of such series selected for redemption under Section
1103 and ending at the close of business on the date of such mailing, or (ii) to
transfer or exchange any Security so selected for redemption in whole or in
part, except for the portion of such Security not so selected for redemption.
None of the applicable Issuer, the Guarantor, the Trustee, any
agent of the Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a Global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
The applicable Issuer initially appoints the Trustee to act as
Security Registrar for the Securities on its behalf. The applicable Issuer may
at any time and from time to time authorize any Person to act as Security
Registrar in place of the Trustee with respect to any series of Securities
issued under this Indenture.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security is surrendered to the Trustee, or if the
applicable Issuer, the Guarantor and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Security, and (ii) there
is delivered to the applicable Issuer, the Guarantor and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the applicable Issuer or the Trustee that such
Security has been acquired by a bona fide purchaser, the applicable Issuer shall
execute and the Guarantor shall execute, as applicable, the notation of any
Guarantees pursuant to Article Twelve or the Guarantees endorsed thereon and
upon its request the Trustee shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Security, a new
Security of like tenor, series, Stated Maturity and principal amount, 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 applicable Issuer or the
Guarantor, each in its discretion may, instead of issuing a new Security, pay
such Security.
Upon the issuance of any new Security under this Section, the
applicable Issuer or the Guarantor, as the case may be, 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.
19
Every new Security issued pursuant to this Section in lieu of
any destroyed, lost or stolen Security and any Guarantees thereof shall
constitute an original additional contractual obligation of the applicable
Issuer and the Guarantor, 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 of the same series duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other nights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided with respect to such Security pursuant to Section 301,
interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of his having
been such Holder, and, except as hereinafter provided, such Defaulted Interest
may be paid by the applicable Issuer or the Guarantor, at its election in each
case, as provided in Clause (1) or Clause (2) below:
(1) The applicable Issuer or the Guarantor may elect to make
payment of any Defaulted Interest to the Persons in whose names any
such Securities (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest which shall be fixed in the
following manner. The applicable Issuer or the Guarantor shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each such Security and the date of the proposed payment, and
at the same time such Issuer or the Guarantor 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 nor less than 10 days prior to the date of the proposed payment and
not less than 10 days after the receipt by the Trustee of the notice of
the proposed payment. The Trustee shall promptly notify the applicable
Issuer or the Guarantor of such Special Record Date and, in the name
and at the expense of such Issuer or the Guarantor, 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 the
Holder of each such Security at his address as it appears in the
Security Register, not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names such
Securities (or their respective Predecessor Securities) are registered
on such Special Record Date and shall no longer be payable pursuant to
the following Clause (2).
(2) The applicable Issuer or the Guarantor may make payment of
any Defaulted Interest 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 such Issuer or the Guarantor
to the Trustee of the proposed payment pursuant to this Clause, such
manner of payment shall be deemed practicable by the Trustee.
If any installment of interest the Stated Maturity of which is
on or prior to the Redemption Date for any Security called for redemption
pursuant to Article Eleven is not paid or duly
20
provided for on or prior to the Redemption Date in accordance with the foregoing
provisions of this Section, such interest shall be payable as part of the
Redemption Price of such Securities.
Subject to the foregoing provisions of this Section, 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 308. Persons Deemed Owners. The applicable Issuer, the
Guarantor, the Trustee and any agent of such Issuer, the Guarantor, or the
Trustee may treat the Person in whose name any Security is registered in the
Security Register as the owner of such Security for the purpose of receiving
payment of principal of (and premium, if any), and (subject to Section 307)
interest on, such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither such Issuer, the Guarantor, the Trustee
nor any agent of the such Issuer, the Guarantor or the Trustee shall be affected
by notice to the contrary.
Section 309. Cancelation. All Securities surrendered for
payment, redemption, transfer, conversion or exchange or credit against a
sinking fund shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and, if not already canceled, shall be promptly
canceled by it. Any Issuer or the Guarantor may at any time deliver to the
Trustee for cancelation any Securities previously authenticated and delivered
hereunder which such Issuer or the Guarantor may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Security shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. The Trustee shall dispose of all canceled Securities in
accordance with its customary procedures and shall deliver a certificate of such
disposition to the applicable Issuer or the Guarantor.
Section 310. Computation of Interest. Unless otherwise
provided as contemplated in Section 301, interest on the Securities shall be
calculated on the basis of a 360-day year of twelve 30-day months.
Solely for purposes of the Interest Act (Canada), the yearly
rate of interest to which interest calculated for a period of less than one year
on the basis of a year of 360 days consisting of 12 30-day periods is equivalent
is such rate of interest multiplied by a fraction of which (i) the numerator is
the product of (A) the actual number of days in the year commencing on the first
day of such period, multiplied by (B) the sum of (y) the product of 30
multiplied by the number of complete months elapsed in such period and (z) the
actual number of days elapsed in any incomplete month in such period; and (ii)
the denominator is the product of (a) 360 multiplied by (b) the actual number of
days in such period. The theory of "deemed reinvestment" shall not apply to the
computation of interest and no allowance, reduction or deduction shall be made
for the deemed reinvestment of interest in respect of any payments. Calculation
of interest shall be made using the nominal rate method, and not the effective
rate method, of calculation.
Section 311. Medium-term Securities. Notwithstanding any
contrary provision herein, if all Securities of a series are not to be
originally issued at one time, it shall not be necessary for the applicable
Issuer or the Guarantor to deliver to the Trustee an Officers' Certificate,
Board Resolution, supplemental indenture, Opinion of Counsel or Company Request
otherwise required pursuant to Sections 202, 301 and 303 at or prior to the time
of authentication of each Security of such series if such documents are
delivered to the Trustee or its agent at or prior to the authentication upon
original issuance of the first Security of such series to be issued; provided
that any subsequent request by such Issuer or the Guarantor to the Trustee to
authenticate Securities of such series upon original issuance shall constitute a
representation and warranty by the applicable Issuer or the Guarantor that as of
the date of such request, the statements made in the Officers' Certificate
delivered pursuant to Section 102 shall be true and correct as if made on such
date.
An Officers' Certificate, supplemental indenture or Board
Resolution delivered by the applicable Issuer or the Guarantor to the Trustee in
the circumstances set forth in the preceding paragraph may provide that
Securities which are the subject thereof will be authenticated and
21
delivered by the Trustee or its agent on original issue from time to time upon
the telephonic or written order of persons designated in such Officers'
Certificate, Board Resolution or supplemental indenture (any such telephonic
instructions to be confirmed promptly in writing by such persons) and that such
persons are authorized to determine, consistent with such Officers' Certificate,
supplemental indenture or Board Resolution, such terms and conditions of said
Securities as are specified in such Officers' Certificate, supplemental
indenture or Board Resolution.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect with respect to any series of
Securities (except as to any surviving rights of conversion, transfer or
exchange of Securities of such series expressly provided for herein or in the
form of Security for such series and the rights, obligations and immunities of
the Trustee), and the Trustee, on demand of and at the expense of the applicable
Issuer or the Guarantor, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series, when
(1) either
(A) all Securities of that series theretofore
authenticated and delivered (other than (i) Securities of such
series which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 306, and
(ii) Securities of such series for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the applicable Issuer or the Guarantor and thereafter
repaid to such Issuer or the Guarantor or discharged from such
trust, as provided in Section 1003) have been delivered to the
Trustee canceled or for cancelation; or
(B) all such Securities of that series not
theretofore delivered to the Trustee canceled or for
cancelation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the
applicable Issuer or the Guarantor,
and the applicable Issuer or the Guarantor, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount sufficient without reinvestment thereof to
pay and discharge the entire indebtedness on such Securities not theretofore
delivered to the Trustee canceled or for cancelation, for principal (and
premium, if any) and interest to the date of such deposit (in the case of
Securities which have become due and payable), or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the applicable Issuer or the Guarantor has paid or caused
to be paid all other sums payable hereunder by such Issuer or the
Guarantor with respect to the Securities of such series;
(3) No Event of Default under Sections 501(5) or (6) shall
have occurred or be continuing on the date of such deposit and no
default or Event of Default under Sections 501(5) or (6) shall occur on
or before the 123rd day after the date of such deposit; and
22
(4) the applicable Issuer or the Guarantor has delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel each
stating that all conditions precedent herein provided for relating to
the satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to
any series of Securities, the obligations of the applicable Issuer and the
Guarantor to the Trustee with respect to that series under Section 607 shall
survive and the obligations of the Trustee under Sections 402 and 1003 shall
survive.
Section 402. Application of Trust Money. All money and
obligations deposited with the Trustee pursuant to Section 401 or Section 403
and all money received by the Trustee in respect of such obligations shall be
held in trust and applied by it, in accordance with the provisions of the series
of Securities in respect of which it was deposited and this Indenture, to the
payment, either directly or through any Paying Agent (including the applicable
Issuer or the Guarantor acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money and obligations have been
deposited with or received by the Trustee; but such money and obligations need
not be segregated from other funds except to the extent required by law.
Section 403. Satisfaction, Discharge and Defeasance of
Securities of any Series. If this Section 403 is specified, as contemplated by
Section 301, to be applicable to Securities of any series, the applicable Issuer
and the Guarantor shall be deemed to have paid and discharged the entire
indebtedness on all the Securities of any such series at the time outstanding,
and the Trustee, at the expense of such Issuer and the Guarantor, shall execute
proper instruments acknowledging satisfaction, discharge and defeasance of such
indebtedness, when
(1) either
(A) with respect to all Securities of such series at
the time outstanding,
(i) the applicable Issuer or the Guarantor
has deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an
amount sufficient, together with any obligations
deposited pursuant to clause (ii) below, without
reinvestment thereof, to pay and discharge the entire
indebtedness on all such Securities for principal
(and premium, if any) and interest, on the days on
which such principal (and premium, if any) or
interest, as the case may be, is due and payable in
accordance with the terms of this Indenture and such
Securities, to the date of maturity or date of
redemption thereof as contemplated by the penultimate
paragraph of this Section 403, as the case may be; or
(ii) the applicable Issuer or the Guarantor
has deposited or caused to be deposited with the
Trustee as obligations in trust for such purpose such
amount of direct obligations of, or obligations the
principal of and interest on which are fully
guaranteed by, the government which issued the
currency in which such Securities are denominated
(other than such obligations as are redeemable at the
option of the issuer thereof) as will, together with
the income to accrue thereon without consideration of
any reinvestment thereof, be sufficient, in the
written opinion of a firm of nationally recognized
independent public accountants delivered to the
Trustee, together with any funds deposited pursuant
to clause (i) above, to pay and discharge the entire
indebtedness on all such Securities for principal
(and premium, if any) and interest, on the days on
which such principal (and premium, if any) or
interest, as the case may be, is due and payable in
accordance with the terms of this Indenture and such
Securities, to the date of maturity or date of
23
redemption thereof as contemplated by the penultimate
paragraph of this Section 403, as the case may be; or
(B) the applicable Issuer or the Guarantor has
properly fulfilled such other means of satisfaction and
discharge as is specified, as contemplated by Section 301, to
be applicable to the Securities of such series;
(2) the applicable Issuer or the Guarantor has paid or caused
to be paid all other sums payable with respect to the Securities of
such series at the time Outstanding;
(3) 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 applicable Issuer or the Guarantor is a party
or by which it is bound;
(4) no Event of Default or event which, after notice or lapse
of time or both, would become an Event of Default shall have occurred
and be continuing on the date of such deposit;
(5) each of the applicable Issuer and the Guarantor has
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for
relating to the satisfaction, discharge and defeasance of the entire
indebtedness on all Securities of any such series at the time
Outstanding have been complied with;
(6) each of the applicable Issuer and the Guarantor shall have
delivered to the Trustee (A) 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
Issuer's or Guarantor's exercise of its option under this Section 403
and will be subject to Federal income tax on the same amount and in the
same manner and at the same times as would have been the case if such
option had not been exercised, and, in the case of Securities being
discharged, accompanied by a ruling to that effect from the Internal
Revenue Service, unless, as set forth in such Opinion of Counsel, there
has been a change in the applicable federal income tax law since the
date of this Indenture such that a ruling from the Internal Revenue
Service is no longer required and (B) an Opinion of Counsel, subject to
such qualifications, exceptions, assumptions and limitations as are
reasonably deemed necessary by such counsel and are reasonably
satisfactory to counsel for the Trustee, to the effect that the trust
resulting from the deposit referred to in paragraph (1) above does not
violate the Investment Company Act of 1940; and
(7) each of the applicable Issuer and the Guarantor shall have
delivered to the Trustee an Officers' Certificate stating that the
deposit referred to in paragraph (1) above was not made by such Issuer
or Guarantor, as applicable, with the intent of preferring the Holders
over other creditors of such Issuer or Guarantor, as applicable, or
with the intent of defeating, hindering, delaying or defrauding
creditors of such Issuer, Guarantor or others.
Any deposits with the Trustee referred to in Section 403(l)(A)
above shall be irrevocable. If any Securities of such series at the time
outstanding are to be redeemed prior to their Stated Maturity, whether pursuant
to any optional redemption provisions or in accordance with any mandatory
sinking fund requirement, the applicable Issuer and the Guarantor shall make
such arrangements as are satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this
Section 403 with respect to all the Securities of any series at the time
Outstanding, the terms and conditions of such series, including the terms and
conditions with respect thereto set forth in this Indenture (except as to any
surviving rights of conversion, transfer or exchange of Securities of such
series expressly provided for herein or in the form of Security for such series
and the rights, obligations and immunities of the
24
Trustee), shall no longer be binding upon, or applicable to, the applicable
Issuer and the Guarantor, provided that neither such Issuer nor the Guarantor
shall be discharged from any payment obligations in respect of Securities of
such series which are deemed not to be Outstanding under clause (iii) of the
definition thereof if such obligations continue to be valid obligations of such
Issuer or the Guarantor under applicable law.
Notwithstanding the satisfaction of the conditions set forth
in this Section 403 with respect to all Securities of any series at the time
Outstanding, the obligations of the applicable Issuer and the Guarantor to the
Trustee with respect to that series under Section 607 and the obligations of the
Trustee with respect to that series under Section 5402 and 1003 shall survive.
If the Trustee or any Paying Agent is unable to apply in
accordance with this Section 403 any deposit by reason of such deposit being
deemed to be a preference or an asset of a bankruptcy estate of the applicable
Issuer or the Guarantor under the Federal Bankruptcy Code in connection with a
default or an Event of Default under Sections 501(5) or(6), such Issuer's and
the Guarantor's obligations under this Indenture and the Securities shall be
revived and reinstated as though no deposit had occurred pursuant to Section 403
until such time, if any, as the Trustee or such Paying Agent is permitted to
apply such deposit in accordance with this Section 403; provided, however, that
if such Issuer or the Guarantor has made any payment of interest on or principal
of any of the Securities because of the reinstatement of its obligations, such
Issuer or the Guarantor shall be subrogated to the Securityholders to receive
such payment from any deposit held by the Trustee or such Paying Agent.
ARTICLE FIVE
Remedies
Section 501. Events of Default. "Event of Default", wherever
used herein, means with respect to any series of Securities any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body), unless such event is either
inapplicable to a particular series or it is specifically deleted or modified in
the supplemental indenture creating such series of Securities or in the form of
Security for such series:
(1) default in the payment of any interest upon any Security
of that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the payment of any sinking or purchase fund or
analogous obligation when the same becomes due by the terms of the
Securities of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the applicable Issuer or the Guarantor in this Indenture 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 the
performance of which or the breach of which is elsewhere in this
Section specifically dealt with), all of such covenants and warranties
in the Indenture which are not expressly stated to be for the benefit
of a particular series of Securities being deemed in respect of the
Securities of all series for this purpose, and continuance of such
default or breach for a period of 90 days after there has been given,
by registered or certified mail, to such Issuer or the Guarantor 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 such series, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default"
hereunder; or
25
(5) the entry of an order for relief against the applicable
Issuer or the Guarantor under the Federal Bankruptcy Code by a court
having jurisdiction in the premises or a decree or order by a court
having jurisdiction in the premises adjudging such Issuer or the
Guarantor a bankrupt or insolvent under any other applicable Federal or
State law, or the equivalent legislation in the jurisdiction of
incorporation or formation of such Issuer if not the United States or
the entry of a decree or order approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of such Issuer or the Guarantor under the Federal Bankruptcy
Code or any other applicable Federal or State law, or the equivalent
legislation in the jurisdiction of incorporation or formation of such
Issuer if not the United States or appointing a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of such
Issuer or the Guarantor 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 60 consecutive days, or
(6) the consent by the applicable Issuer or the Guarantor 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 the Federal Bankruptcy Code or any other
applicable Federal or State law or the equivalent legislation in the
jurisdiction of incorporation for formation of such Issuer if not then
United States, or the consent by it to the filing of any such petition
or to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of such Issuer or the
Guarantor or of any substantial part of its property, or the making by
it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by such Issuer or the
Guarantor in furtherance of any such action; or
(7) any other Event of Default provided in the supplemental
indenture under which such series of Securities is issued or in the
form of Security for such series.
Section 502. Acceleration of Maturity; Rescission and
Annulment. If an Event of Default described in paragraph ( 1), (2), (3), (4), or
(7) (if the Event of Default under paragraph (4) or (7) is with respect to less
than all series of Securities then Outstanding) of Section 501 occurs and is
continuing with respect to any series, then and in each and every such case,
unless the principal of all the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of such series then Outstanding
hereunder (each such series acting as a separate class), by notice in writing to
the applicable Issuer and the Guarantor (and to the Trustee if given by
Holders), may declare the principal amount (or, if the Securities of such series
are Original Issue Discount Securities, such portion of the principal amount as
may be specified in the terms of that series) of all the Securities of such
series then Outstanding and all accrued interest thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture or in the Securities of
such series contained to the contrary notwithstanding. If an Event of Default
described in paragraph (4) or (7) (if the Event of Default under paragraph (4)
or (7) is with respect to all series of Securities then Outstanding), (5) or (6)
of Section 501 occurs and is continuing, then and in each and every such case,
unless the principal of all the Securities shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of all the Securities then Outstanding hereunder (treated as
one class), by notice in writing to the applicable Issuer and the Guarantor (and
to the Trustee if given by Holders), may declare the principal amount (or, if
any Securities are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms thereof) of all the Securities
then Outstanding and all accrued interest thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture or in the Securities
contained to the contrary notwithstanding.
At any time after such a declaration of acceleration has been
made with respect to the Securities of any series 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
26
amount of the Outstanding Securities of such series, by written notice to the
applicable Issuer, the Guarantor and the Trustee, may rescind and annul such
declaration and its consequences if
(1 ) the applicable Issuer or the Guarantor has paid or
deposited with the Trustee a sum sufficient to pay
(A) all overdue installments of interest on the
Securities of such series,
(B) the principal of (and premium, if any, on) any
Securities of such series which have become due otherwise than
by such declaration of acceleration, and interest thereon at
the rate or rates prescribed therefor by the terms of the
Securities of such series, to the extent that payment of such
interest is lawful,
(C) interest upon overdue installments of interest at
the rate or rates prescribed therefor by the terms of the
Securities of such series to the extent that payment of such
interest is lawful, 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 all other amounts due the Trustee under Section
607;
and
(2) all Events of Default with respect to such series of
Securities, other than the nonpayment of the principal of the
Securities of such series which have become due solely by such
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. Each of the Issuers and the Guarantor covenants that if
(1) default is made in the payment of any installment of
interest on any Security of any series when such interest becomes due
and payable, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof, or
(3) default is made in the payment of any sinking or purchase
fund or analogous obligation when the same becomes due by the terms of
the Securities of any series,
and any such default continues for any period of grace provided with respect to
the Securities of such series, the applicable Issuer or the Guarantor will, upon
demand of the Trustee, pay to it, for the benefit of the Holder of any such
Security (or the Holders of any such series in the case of Clause (3) above),
the whole amount then due and payable on any such Security (or on the Securities
of any such series in the case of Clause (3) above) for principal (and premium,
if any) and interest, with interest, to the extent that payment of such interest
shall be legally enforceable, upon the overdue principal (and premium, if any)
and upon overdue installments of interest, at such rate or rates as may be
prescribed therefor by the terms of any such Security (or of Securities of any
such series in the case of Clause (3) above); 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 and all other amounts due the
Trustee under Section 607.
If the applicable Issuer or the Guarantor 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, and may prosecute such proceeding to judgment or
final decree, and may enforce the same against such Issuer or the Guarantor or
any other
27
obligor upon the Securities of such series and collect the money adjudged or
decreed to be payable in the manner provided by law out of the property of such
Issuer or the Guarantor or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any series of
Securities occurs and is continuing, the Trustee may in its discretion proceed
to protect and enforce its rights and the rights of the Holders of Securities of
such series by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 504. 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 any applicable Issuer or the Guarantor or any other
obligor upon the Securities or the property of the applicable Issuer or the
Guarantor or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities 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 such Issuer or the Guarantor for the
payment of overdue principal or interest) shall be entitled and empowered, by
intervention in such proceedings or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities and to file such other papers or documents as
may be necessary and 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
all other amounts due the Trustee under Section 607 (such compensation,
expenses, disbursements and advances of the Trustee intending to
constitute expenses of administration under the Federal Bankruptcy Code
or the equivalent legislation in the jurisdiction of incorporation or
formation of such Issuer, if not the United States)) and of the
Securityholders allowed in such judicial proceeding, and
(ii) 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 (or other similar
official) in any such judicial proceeding is hereby authorized by each
Securityholder to make such payment to the Trustee and in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607 (such
compensation, expenses, disbursements and advances of the Trustee intending to
constitute expenses of administration under the Federal Bankruptcy Code or the
equivalent legislation in the jurisdiction of incorporation or formation of such
Issuer, if not the United States).
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan or reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities of any series may be prosecuted and enforced by the Trustee without
the possession of any of the Securities of such series 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 agent and
counsel, be for the ratable benefit of the Holders of the Securities of the
series in respect of which such judgment has been recovered.
28
Section 506. Application of Money Collected. Any money
collected by the Trustee with respect to a series of Securities pursuant to this
Article shall be applied in the following order, at the date or dates fixed by
the Trustee and, in case of the distribution of such money on account of
principal (or premium, if any) or interest, upon presentation of the Securities
of such series 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 607.
SECOND: To the payment of the amounts then due and unpaid upon
the Securities of that series for principal (and premium, if any) and interest,
in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal (and premium, if any) and
interest, respectively.
THIRD: To the applicable Issuer.
Section 507. 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
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to Securities of
such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) 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 such
series;
it being understood and intended that no one or more Holders of Securities of
such series shall have any right in any manner whatever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice the
rights of any other Holders of Securities of such series, or to obtain or to
seek to obtain priority or preference over any other such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal and proportionate benefit of all the Holders of all Securities of such
series.
Section 508. Unconditional Right of Securityholders to Receive
Principal, Premium and Interest. Notwithstanding any other provisions 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)
and (subject to Section 307) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repayment, on the Redemption Date or Repayment Date, as the case may be) and to
institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies. If the
Trustee or any Securityholder has instituted any proceeding to enforce any right
or remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, then and in every such case the applicable Issuer, the
Guarantor, the Trustee and the Securityholders shall, subject to any
29
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Securityholders shall continue as though no such proceeding had
been instituted.
Section 510. Rights and Remedies Cumulative. No right or
remedy herein conferred upon or reserved to the Trustee or to the
Securityholders 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 511. 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 Securityholders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Securityholders, as the case
may be.
Section 512. Control by Securityholders. The Holders of a
majority in principal amount of the Outstanding Securities of any series shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to the Securities of such series, provided
that
(1) the Trustee shall have the right to decline to follow any
such direction if the Trustee, being advised by counsel, determines
that the action so directed may not lawfully be taken or would conflict
with this Indenture or if the Trustee in good faith shall, by a
Responsible Officer, determine that the proceedings so directed would
involve it in personal liability or be unjustly prejudicial to the
Holders not taking part in such direction, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default not theretofore cured
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or in the payment of any
sinking or purchase fund or analogous obligation with respect to the
Securities of such series, or
(2) 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.
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 514. 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, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant, but the provisions of this Section shall not apply to any
suit instituted by the Trustee,
30
to any suit instituted by any Securityholder, or group of Securityholders,
holding in the aggregate more than 10% in principal amount of the Outstanding
Securities of any series to which the suit relates, or to any suit instituted by
any Securityholder for the enforcement of the payment of the principal of (or
premium, if any) or interest on any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repayment, on or after the Redemption Date or Repayment Date).
Section 515. Waiver of Stay or Extension Laws. Each of the
Issuers and the Guarantor covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and each of the Issuers and the Guarantor
(to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities. (a) Except
during the continuance of an Event of Default with respect to any series of
Securities,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture with
respect to the Securities of such series, 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,
with respect to Securities of such series, 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.
(b) In case an Event of Default with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise with
respect to the Securities of such series such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(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 Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(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;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any
31
trust or power conferred upon the Trustee, under this Indenture with
respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to
it.
(d) whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
Section 602. Notice of Defaults. Within 90 days after the
occurrence of any default hereunder with respect to Securities of any series,
the Trustee shall transmit by mail to all Securityholders of such series, as
their names and addresses appear in the Security Register, 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 (or premium, if any) or interest on any Security of
such series or in the payment of any sinking or purchase fund installment or
analogous obligation with respect to Securities 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 and/or
Responsible Officers of the Trustee in good faith determine that the withholding
of such notice is in the interests of the Securityholders of such series; and
provided further, that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series no such notice to
Securityholders of such series shall be given until at least 90 days after the
occurrence thereof. For the purpose of this Section, the term "default", with
respect to Securities of any series, 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 603. Certain Rights, of Trustee. Except as otherwise
provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of any Issuer or the Guarantor
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 of its selection 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 Securityholders pursuant to this Indenture, unless such
Securityholders shall have offered to the Trustee 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;
32
(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 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 any Issuer or the Guarantor, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder.
Section 604. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the Securities, except the
certificates of authentication, shall be taken as the statements of the Issuers
and the Guarantor, 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 Issuers or the Guarantor of
Securities or the proceeds thereof.
Section 605. May Hold Securities. The Trustee, any Paying
Agent, the Security Registrar or any other agent of the Issuers or the
Guarantor, in its individual or an other capacity, may become the owner or
pledgee of Securities and, subject to Sections 608 and 613, may otherwise deal
with each of the Issuers and the Guarantor with the same rights it would have if
it were not Trustee, Paying Agent, Security Registrar or such other agent.
Section 606. 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 applicable
Issuer or the Guarantor.
Section 607. Compensation and Reimbursement. Each of the
Issuers and the Guarantor agrees
(1) to pay to the Trustee from time to time such compensation,
as the parties shall agree from time to time, for all services rendered
by it hereunder, including extraordinary services such as default
administration (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an
express trust):
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including, the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense. disbursement or advance
as may be attributable to acts or omissions of the Trustee, if any,
relating to incurring such expenses, disbursements and advances that
are in breach of applicable standard of care imposed upon the Trustee
pursuant to this Indenture; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred unless such loss,
liability or expense was incurred in breach of applicable standard of
care imposed on the Trustee by this Indenture, arising out of or in
connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any claim
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
applicable Issuer and the Guarantor under this Section the Trustee shall have a
lien prior to the Securities upon all property and
33
funds held or collected by the Trustee as such, except funds held in trust for
the payment of principal of (and premium, if any) or interest on particular
Securities.
Section 608. Disqualification; Conflicting Interests. The
Trustee for the Securities of any series issued hereunder shall be subject to
the provisions of Section 310(b) of the Trust Indenture Act during the period of
time provided for therein. In determining whether the Trustee has a conflicting
interest as defined in Section 301(b) of the Trust Indenture Act with respect to
the Securities of any series, there shall be excluded for purposes of the
conflicting interest provisions of such Section 310 (b) the Securities of every
other series issued under this Indenture. Nothing herein shall prevent the
Trustee from filing with the Commission the application referred to in the
second to last paragraph of Section 310(b) of the Trust Indenture Act.
Section 609. Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder with respect to each series of
Securities, which shall be a corporation organized and doing business under the
laws of the United States of America or of any State, authorized under such laws
to exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, and subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee with respect to any series of Securities shall cease to be
eligible in accordance with the provisions of this Section or in accordance with
Section 310(a)(5) of the Trust Indenture Act, it shall resign immediately in the
manner and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of
Successor. (a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign with respect to any series of
Securities at any time by giving written notice thereof to the applicable Issuer
and the Guarantor. 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 any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in principal amount
of the Outstanding Securities of that 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 giving of notice of
such removal, the removed Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fall to comply with Section 310(b) of
the Trust Indenture Act pursuant to Section 608(a) with respect to any
series of Securities after written request therefor by the applicable
Issuer or the Guarantor or by any Securityholder who has been a bona
fide Holder of a Security of that series for at least 6 months, or
(2) the Trustee shall cease to be eligible under Section 609
with respect to any series of Securities and shall fail to resign after
written request therefor by the applicable Issuer or the Guarantor or
by any such Securityholder, or
(3) the Trustee shall become incapable of acting with respect
to any series of Securities, or
(4) the Trustee 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
34
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the applicable Issuer or the Guarantor by a Board
Resolution may remove the Trustee, with respect to the series, or in the case of
Clause (4), with respect to all series, or (ii) subject to Section 514, any
Securityholder who has been a bona fide Holder of a Security of such series for
at least 6 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 with respect to the series, or, in the
case of Clause (4), with respect to all series.
(e) If the Trustee shall resign, be removed or become
incapable of acting with respect to any series of Securities, or if a vacancy
shall occur in the office of the Trustee with respect to any series of
Securities for any cause, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee for that series of Securities. If, within one year
after such resignation, removal or incapacity, or the occurrence of such
vacancy, a successor Trustee with respect to such series of Securities shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the applicable Issuer and the
Guarantor and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
with respect to such series and supersede the successor Trustee appointed by
such Issuer and the Guarantor with respect to such series. If no successor
Trustee with respect to such series shall have been so appointed by such Issuer
and the Guarantor or the Securityholders of such series and accepted appointment
in the manner hereinafter provided, any Securityholder who has been a bona fide
Holder of a Security of that series for at least 6 months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such
series.
(f) The applicable Issuer shall give notice of each
resignation and each removal of the Trustee with respect to any series and each
appointment of a successor Trustee with respect to any series by mailing written
notice of such event by first-class mail, postage prepaid, to the Holders of
Securities of that series as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Trustee and the
address of its principal Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Issuers, the Guarantor and to the predecessor Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
predecessor Trustee shall become effective with respect to any series as to
which it is resigning or being removed as Trustee, and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the predecessor Trustee with respect to any
such series, but, on request of any of the Issuers, the Guarantor or the
successor Trustee, such predecessor Trustee shall, upon payment of its
reasonable charges, if any, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the predecessor
Trustee, and shall duly assign, transfer and deliver to such successor Trustee
all property and money held by such predecessor Trustee hereunder with respect
to all or any such series, subject nevertheless to its lien, if any, provided
for in Section 607. Upon request of any such successor Trustee, each of the
Issuers and the Guarantor shall execute any and all instruments for more fully
and certainly vesting in and confining to such successor Trustee all such
rights, powers and trusts.
In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series of one or
more Issuers, the applicable Issuer, the Guarantor, the predecessor Trustee and
each successor Trustee with respect to the Securities of any applicable series
shall execute and deliver an indenture supplemental hereto which shall contain
such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Trustee with respect to
the Securities of any series as to which the predecessor Trustee is not being
succeeded shall continue to be vested in the predecessor Trustee, and 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
35
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.
No successor Trustee with respect to any series of Securities
shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible with respect to that series
under this Article.
Section 612. 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 of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13. Preferential Collection of Claims Against
Company. (a) Subject to Subsection (b) of this Section, if the Trustee shall be
or shall become a creditor, directly or indirectly, secured or unsecured, of any
Issuer or the Guarantor within 3 months prior to a default, as defined in
Subsection (c) of this Section, or subsequent to such a default, then, unless
and until such default shall be cured, the Trustee shall set apart and hold in a
special account for the benefit of the Trustee individually, the Holders of the
Securities and the holders of other indenture securities (as defined in
Subsection (c) of this Section):
(1) an amount equal to any and all reductions in the amount
due and owing upon any claim as such creditor in respect of principal
or interest, effected after the beginning of such 3-month period and
valid as against the applicable Issuer or the Guarantor and its other
creditors, except any such reduction resulting from the receipt or
disposition of any property described in paragraph (2) of this
Subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been filed
by or against such Issuer or the Guarantor upon the date of such
default; and
(2) all property received by the Trustee in respect of any
claim as such creditor, either as security therefor, or in satisfaction
or composition thereof, or otherwise, after the beginning of such
3-month period, or an amount equal to the proceeds of any such
property, if disposed of, subject, however, to the rights, if any, of
the applicable Issuer or the Guarantor and its other creditors in such
property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee
(A) to retain for its own account (i) payments made on account
of any such claim by any Person (other than such Issuer or the
Guarantor) who is liable thereon, and (ii) the proceeds of the bona
fide sale of any such claim by the Trustee to a third person, and (iii)
distributions made in cash, securities or other property in respect of
claims filed against such Issuer or the Guarantor in bankruptcy or
receivership or in proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law or equivalent
legislation in the jurisdiction of incorporation of such Issuer if not
the United States;
(B) to realize, for its own account, upon any property held by
it as security for any such claim, if such property was so held prior
to the beginning of such 3-month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as
security for any such claim, if such claim was
36
created after the beginning of such 3-month period and such property
was received as security therefor simultaneously with the creation
thereof, and if the Trustee shall sustain the burden of proving that at
the time such property was so received the Trustee had no reasonable
cause to believe that a default as defined in Subsection (c) of this
Section would occur within 3 months; or
(D) to receive payment on any claim referred to in paragraph
(B) or (C), against the release of any property as security for such
claim as provided in paragraph (B) or (C), as the case may be, to the
extent of the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property
substituted after the beginning of such 3-month period for property held as
security at the time of such substitution shall, to the extent of the fair value
of the property released, have the same status as the property released, and, to
the extent that any claim referred to in any of such paragraphs is created in
renewal of or in substitution for or for the purpose of repaving or refunding
any pre-existing claim of the Trustee as such creditor, such claim shall have
the same status as such pre-existing claim.
If the Trustee shall be required to account, the funds and
property held in such special account and the proceeds thereof shall be
apportioned between the Trustee, the Securityholders and the holders of other
indenture securities in such manner that the Trustee, the Securityholders and
the holders of other indenture securities realize, as a result of payments from
such special account and payments of dividends on claims filed against the
applicable Issuer or the Guarantor in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law, the same percentage of their respective claims, figured
before crediting to the claim of the Trustee anything on account of the receipt
by it from such Issuer or the Guarantor of the funds and property in such
special account and before crediting to the respective claims of the Trustee and
the Securityholders and the holders of other indenture securities dividends on
claims filed against such Issuer or the Guarantor in bankruptcy or receivership
or in proceedings for reorganization pursuant to the Federal Bankruptcy Act or
applicable State law or equivalent legislation in the jurisdiction of
Incorporation of such Issuer, if not the United States, but after crediting
thereon receipts on account of the indebtedness represented by their respective
claims from all sources other than from such dividends and from the funds and
property so held in such special account. As used in this paragraph, with
respect to any claim, the term "dividends" shall include any distribution with
respect to such claim, in bankruptcy or receivership or proceedings for
reorganization pursuant to the Federal Bankruptcy Act or applicable State law or
equivalent legislation in the jurisdiction of Incorporation of such Issuer, if
not the United States, whether such distribution is made in cash, securities, or
other property but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending shall have
jurisdiction (i) to apportion between the Trustee and the Securityholders and
the holders of other indenture securities in accordance with the provisions of
this paragraph, the funds and property held in such special account and proceeds
thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to
the provisions of this paragraph due consideration in determining the fairness
of the distributions to be made to the Trustee and the Securityholders and the
holders of other indenture securities with respect to their respective claims,
in which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as security
for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to apply
the provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the
beginning of such 3-month period shall be subject to the provisions of this
Subsection as though such resignation or removal had not occurred. If any
Trustee has resigned or been removed prior to the beginning of such 3-month
37
period. it shall be subject to the provisions of this Subsection if and only if
the following conditions exist:
(i) the receipt of property or reduction of claim.
which would have given rise to the obligation to account, if
such Trustee had continued as Trustee, occurred after the
beginning of such 3-month period; and
(ii) such receipt of property or reduction of claim
occurred within 3 months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection
(a) of this Section a creditor relationship arising from
(1) the ownership or acquisition of securities issued under
any Indenture, or any security or securities having a maturity of one
year or more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court
of competent jurisdiction, or by this Indenture, for the purpose of
preserving any property which shall at any time be subject to the lien
of this Indenture or of discharging tax liens or other prior liens or
encumbrances thereon, if notice of such advances and of the
circumstances surrounding the making thereof is given to the
Securityholders at the time and in the manner provided in this
Indenture;
(3) disbursements made in the ordinary course of business in
the capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered
or premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in Subsection (c) of
this Section;
(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the
Federal Reserve Act, as amended, which is directly or indirectly a
creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of
any drafts, bills of exchange, acceptances or obligations which fall
within the classification of self-liquidating paper as defined in
Subsection (c) of this Section.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make payment in
full of the principal of or interest on any of the Securities or upon
the other indenture securities when and as such principal or interest
becomes due and payable.
(2) The term "other indenture securities" means securities
upon which the Company is an obligor outstanding under any other
indenture (i) under which the Trustee is also trustee, (ii) which
contains provisions substantially similar to the provisions of this
Section and (iii) under which a default exists at the time of the
apportionment of the funds and property held in such special account.
(3) The term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within 7 days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand.
38
(4) The term "self-liquidating paper" means any draft, xxxx of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the applicable Issuer or the Guarantor for the purpose of
financing the purchase, processing, manufacturing, shipment, storage or
sale of goods, wares or merchandise and which is secured by documents
evidencing title to, possession of, or a lien upon, the goods, wares or
merchandise or the receivables or proceeds arising from the sale of the
goods, wares or merchandise previously constituting the security,
provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with such Issuer or the
Guarantor arising from the making, drawing, negotiating or incurring of
the draft, xxxx of exchange, acceptance or obligation.
(5) The terms "Issuer" and "Guarantor" mean any obligor upon
the Securities.
Section 614. Appointment of Authenticating Agent. At any time
when any of the Securities remain Outstanding the Trustee, with the approval of
the each of the applicable Issuers and the Guarantor, may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as an
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and, if other than any of the Issuers or the Guarantor, subject to
supervision or examination by Federal or State authority. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or to
the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and, if other than the applicable Issuer
or the Guarantor, to the applicable Issuer and the Guarantor. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and, if other than the applicable
Issuer or the Guarantor, to the applicable Issuer and the Guarantor. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee, with the approval of the applicable
Issuer and the Guarantor, may appoint a successor Authenticating Agent which
shall be acceptable to such Issuer and the Guarantor and shall mail written
notice of such appointment by first-class mail, postage prepaid, to all Holders
of Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an
39
Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent (other
than an Authenticating Agent appointed at the request of any of the Issuers or
the Guarantor from time to time and acceptable to the Trustee) reasonable
compensation for its services under this Section, and the Trustee shall be
entitled to be reimbursed for such payments, subject to the provisions of
Section 607.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
_________________________________
as Trustee
By: ____________________________
As Authenticating Agent
By: ____________________________
Authorized Signatory
40
ARTICLE SEVEN
Securityholders' Lists and Reports by
Trustee the Issuers and the Guarantor
Section 701. The Issuers and the Guarantor To Furnish Trustee
Names and Addresses of Securityholders. Each of the Issuers and the Guarantor
will furnish or cause to be furnished to the Trustee
(a) semiannually, not more than 15 days after each Regular
Record Date, in each year in such form as the Trustee may reasonably
require, a list of the names and addresses of the Holders of Securities
of such series as of such date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the applicable Issuer or the
Guarantor 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 Security Registrar.
Section 702. Preservation of Information Communications to
Securityholders. (a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of Securities
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of Securities received by the
Trustee in its capacity as Security Registrar. The Trustee may destroy any list
furnished to it as provided in Section 701 upon receipt of a new list so
furnished.
(b) If three or more Holders of Securities of any series
(hereinafter referred to as "applicants") apply in writing to the Trustee, and
furnish to the Trustee reasonable proof that each such applicant has owned a
Security of such series for a period of at least 6 months preceding the date of
such application, and such application states that the applicants desire to
communicate with other Holders of Securities of such series or with the Holders
of all Securities with respect to their rights under this Indenture or under
such Securities and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, at its
election, either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or all Securities, as the case may
be, whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with Section 702(a), and as to
the approximate cost of mailing to such Securityholders the form of
proxy or other communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants
access to such information, the Trustee shall, upon the written request of such
applicants, mail to each Holder of a Security of such series or to all
Securityholders, as the case may be, whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with Section
702(a), a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment, of the
reasonable expenses of mailing, unless, within five days after such tender, the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders of Securities of such series or all Securityholders, as
the case may be, or would be in violation of applicable law. Such written
statement shall specify the basis of such opinion. If the Commission, after
opportunity for a hearing upon the objections specified in the
41
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met and shall enter an order so
declaring, the Trustee shall mail copies of such material to all Securityholders
of such series or all Securityholders, as the case may be, with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the each of the Issuers, the Guarantor and the Trustee that
neither the Company nor the Trustee shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
of Securities in accordance with Section 702(b), 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
Section 702(b).
Section 703. Reports by Trustee. (a) The term "reporting date"
as used in this Section means May 15 of each year. Within 60 days after the
reporting date in each year, beginning in 1999, the Trustee shall transmit by
mail to all Securityholders, as their names and addresses appear in the Security
Register, a brief report dated as of such reporting date with respect to any of
the following events which may have occurred during the 12 months preceding the
date of such report (but if no such event has occurred within such period no
report need be transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the Trust
Indenture Act;
(3) the character and amount of any advances (and if the
Trustee elects so to state, the circumstances surrounding the making
thereof) made by the Trustee (as such) which remain unpaid on the date
of such report, and for the reimbursement of which it claims or may
claim a lien or charge, prior to that of Securities of any series, on
any property or funds held or collected by it as Trustee, except that
the Trustee shall not be required (but may elect) to report such
advances if such advances so remaining unpaid aggregate not more than
1/2 of 1% of the principal amount of the Securities of such series
outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity date
of all other indebtedness owing by the Company (or by any other obligor
on the Securities) to the Trustee in its individual capacity, on the
date of such report, with a brief description of any property held as
collateral security therefor, except an indebtedness based upon a
creditor relationship arising in an manner described in Section
613(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically
in the possession of the Trustee as such on the date of such report;
(6) any additional issue of Securities which the Trustee has
not previously reported;
and
(7) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of
a default, notice of which has been or is to be withheld by the Trustee
in accordance with Section 602.
(b) The Trustee shall transmit by mail to all Securityholders,
as their names and addresses appear in the Security Register, a brief report
with respect to the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof)
42
made by the Trustee (as such) since the date of the last report transmitted
pursuant to Subsection (a) of this Section (or if no such report has yet been so
transmitted, since the date of execution of this instrument) for the
reimbursement of which it claims or may claim a lien or charge, prior to that of
the Securities of any series, on property or funds held or collected by it as
Trustee, and which it has not previously reported pursuant to this Subsection,
except that the Trustee shall not be required (but may elect) to report such
advances if such advances remaining unpaid at any time aggregate 10% or less of
the principal amount of the Securities Outstanding of such series at such time,
such report to be transmitted within 90 days after such time.
(c) A copy of each such report shall, at the time of such
transmission to Securityholders, be filed by the Trustee with each stock
exchange upon which the Securities are listed, and also with the Commission. The
applicable Issuer will notify the Trustee when the Securities are listed on any
stock exchange.
Section 704. Reports by the Issuers and the Guarantor. Each of
the Issuers and the Guarantor will
(1) file with the Trustee, within 15 days after such Issuer
and the Guarantor 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 such Issuer and the Guarantor may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if such Issuer and the Guarantor
is not required to file information, documents or reports pursuant to
either of said Sections, then it will file with the Trustee and the
Commission, in accordance with rules and regulations prescribed from
time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to
Section 13 of the Securities Exchange Act of 1934 in respect of a
security listed and registered on a national securities exchange as may
be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional Information, documents and reports with
respect to compliance by such Issuer and the Guarantor with the
conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit by mail to all Securityholders, as their names
and addresses appear in the Security Register, within 30 days after the
filing thereof with the Trustee, such summaries of any information,
documents and reports required to be filed by such Issuer and the
Guarantor pursuant to paragraphs (1) and (2) of this Section as may be
required by rules and regulations prescribed from time to time by the
Commission.
ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, etc. only on Certain
Terms. The Company shall not consolidate with or merge into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company substantially as an
entirety shall be a corporation organized and existing under the laws
of the United States of America or any State or the District of
Columbia, and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the
43
Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest 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 happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
Section 802. Subsidiary Issuers May Consolidate, etc. only on
Certain Terms. Each of the Subsidiary Issuers shall not consolidate or
amalgamate with or merge into any other corporation or convey or transfer its
properties and assets substantially as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or
amalgamation or into which such Subsidiary Issuer is merged or the
Person which acquires by conveyance or transfer the properties and
assets of such Subsidiary Issuer substantially as an entirety shall be
a corporation organized and existing under the laws of the United
States of America or any State or the District of Columbia or of Canada
or any province or territory thereof, 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 premium, if any) and interest on all the
Securities and the performance of every covenant of this Indenture on
the part of such Subsidiary Issuer 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 happened and be
continuing; and
(3) such Subsidiary Issuer has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, amalgamation, merger, conveyance or transfer and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
Section 803. Successor Corporation Substituted. Upon any
consolidation, amalgamation or merger, or any conveyance or transfer of the
properties and assets of an Issuer or the Guarantor substantially as an entirety
in accordance with Section 801 or Section 802, the successor corporation formed
by such consolidation or amalgamation or into which such Issuer or the Guarantor
is merged or to which such conveyance or transfer is made shall succeed to, and
be substituted for, and may exercise every right and power of, such Issuer or
the Guarantor under this Indenture with the same effect as if such successor
corporation had been named as such Issuer or the Guarantor herein. In the event
of any such conveyance or transfer, such Issuer or the Guarantor as the
predecessor corporation may be dissolved, wound up or liquidated at any time
thereafter.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of
Securityholders. Without the consent of the Holders of any Securities, any
Issuer and the Guarantor, when authorized by a
44
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 such
Issuer or the Guarantor, and the assumption by any such successor of
the covenants of such Issuer or the Guarantor herein and in the
Securities contained; or
(2) to add to the covenants of such Issuer or the Guarantor,
or to surrender any right or power herein conferred upon such Issuer or
the Guarantor, for the benefit of the Holders of the Securities of any
or all series (and if such covenants or the surrender of such right or
power are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included or such
surrenders are expressly being made solely for the benefit of one or
more specified series); or
(3) 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 Indenture; or
(4) to add to this Indenture such provisions as may be
expressly permitted by the TIA, excluding, however, the provisions
referred to in Section 316(a)(2) of the TIA as in effect at the date as
of which this instrument was executed or any corresponding provision
similar federal statute hereafter enacted; or
(5) to establish any form of Security, as provided in Article
Two, and to provide for the issuance of any series of Securities as
provided in Article Three and to set forth the terms thereof, and/or to
add to the rights of the Holders of the Securities of any series; or
(6) to evidence and provide for the acceptance of appointment
by another corporation as a successor Trustee hereunder with respect to
one or more series of Securities 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 Section 611; or
(7) to add any additional Events of Default in respect of the
Securities of any or all series (and if such additional Events of
Default are to be in respect of less than all series of Securities,
stating that such Events of Default are expressly being included solely
for the benefit of one or more specified series); or
(8) to provide for the issuance of Securities in coupon as
well as fully registered form.
No supplemental indenture for the purposes identified in
Clauses (2), (3), (5) or (7) above may be entered into if to do so would
adversely affect the interest of the Holders of Securities of any series.
Section 902. Supplemental Indentures with Consent of
Securityholders. With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture or indentures, by Act of said Holders delivered to the
applicable Issuer, the Guarantor and the Trustee, the applicable Issuer and the
Guarantor, 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 the
Securities of each such series under this Indenture; provided, however, that no
such
45
supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby,
(1) change the Maturity of the principal of, or the Stated
Maturity of any premium on, or any installment of interest on, any
Security, or reduce the principal amount thereof or the interest or any
premium thereon, or change the method of computing the amount of
principal thereof or interest thereon on any date or change any Place
of Payment where, or the coin or currency in which, any Security or any
premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Maturity or the Stated Maturity, as the case may be, thereof (or, in
the case of redemption or repayment, on or after the Redemption Date or
the Repayment Date, as the case may be); or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver of 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, Section 513
or Section 1008, 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 which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 903. Execution of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 601) 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 (except to the
extent required in the case of a supplemental indenture entered into under
Section 901(4) or 901(6) in which case such supplemental indenture shall not
adversely affect the Trustee's own rights, duties or immunities without the
consent of the Trustee) 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 904. Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes, and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby to the extent provided therein.
Section 905. Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the TIA as then in effect.
Section 906. Reference in Securities to Supplemental
Indentures. Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the applicable Issuer and the
Guarantor shall
46
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 such Issuer and the Guarantor and authenticated and
delivered by the Trustee in exchange for Outstanding Securities.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest. With
respect to each series of Securities, each of the Issuers will duly and
punctually pay the principal of (and premium, if any) and interest on such
Securities in accordance with their terms and this Indenture, and will duly
comply with all the other terms, agreements and conditions contained in, or made
in the Indenture for the benefit of, the Securities of such series.
Section 1002. Maintenance of Office or Agency. Each of the
Issuers will maintain an office or agency in each Place of Payment where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for transfer or exchange and where notices and demands to or upon
such Issuer in respect of the Securities and this Indenture may be served. Each
applicable Issuer will give prompt written notice to the Trustee of the
location, and of any change in the location, of such office or agency. If at any
time any Issuer shall fail to maintain such 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 principal Corporate Trust
Office of the Trustee, and each of the Issuers hereby appoints the Trustee its
agent to receive all such presentations, surrenders, notices and demands.
The Guarantor will maintain an office or agency in each Place
of Payment where Securities to which the Guarantees apply where such Securities
may be presented or surrendered for payment pursuant to the Guarantees and where
notice and demands to or upon the Guarantor in respect of the Guarantees and
this Indenture may be served. The Guarantor 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 Guarantor shall fail to maintain any such office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders and demands may be made or served at the Principal
Corporate Trust Office of the Trustee, and the Guarantor hereby appoints the
Trustee as its agent to receive all such presentations, surrenders and demands.
Section 1003. Money for Security Payments to be Held in Trust.
If any of the Issuers or the Guarantor shall at any time act as its own Paying
Agent for any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on, any of the Securities of such
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
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 to act.
Whenever the Issuers or the Guarantor shall have one or more
Paying Agents for any series of Securities, it will, on or prior to each due
date of the principal of (and premium, if any) or interest on, any Securities of
such series, deposit with a Paying Agent a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due, such sum to be held in trust
for the benefit of the Persons entitled to such principal (and premium, if any)
or interest, and (unless such Paying Agent is the Trustee) the applicable Issuer
will promptly notify the Trustee of its action or failure so to act.
47
The applicable Issuer will cause each Paying Agent other than
the Trustee for any series of Securities to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject
to the provisions of this Section, that such Paying Agent will
(1) hold all sums held by it for the payment of principal of
(and premium, if any) or interest on Securities of such series 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;
(2) give the Trustee notice of any default by the applicable
Issuer (or any other obligor upon the Securities of such series) in the
making of any such payment of principal (and premium, if any) or
interest on the Securities of such series; and
(3) 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.
Any of the Issuers may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture with respect to any
series of Securities or for any other purpose, pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by any of the
Issuers or such Paying Agent in respect of each and every series of Securities
as to which it seeks to discharge this Indenture or, if for any other purpose,
all sums so held in trust by any of the Issuers in respect of all Securities,
such sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by any of the Issuers or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be released
from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the any of the Issuers or the Guarantor, in trust for the payment
of the principal of (and premium, if any) or interest on any Security of any
series and remaining unclaimed for two years after such principal (and premium,
if any) or interest has become due and payable shall be paid to such Issuer or
the Guarantor on Company Request, or (if then held by such Issuer or the
Guarantor) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to such Issuer or
the Guarantor for payment thereof, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of such Issuer
or the Guarantor as trustee thereof, shall thereupon cease. The Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the applicable Issuer or the Guarantor mail to the Holders of the
Securities as to which the money to be repaid was held in trust, as their names
and addresses appear in the Security Register, a notice that such moneys remain
unclaimed and that, after a date specified in the notice, which shall not be
less than 30 days from the date on which the notice was first mailed to the
Holders of the Securities as to which the money to be repaid was held in trust,
any unclaimed balance of such moneys then remaining will be paid to such Issuer
or the Guarantor free of the trust formerly impressed upon it.
Each of the Issuers and the Guarantor initially authorizes the
Trustee to act as Paying Agent for the Securities on its behalf. Any Issuer or
the Guarantor may at any time and from time to time authorize one or more
Persons to act as Paying Agent in addition to or in place of the Trustee with
respect to any series of Securities issued under this Indenture.
Section 1004. Statement as to Compliance. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year, a
written statement signed by the principal executive officer, principal financial
officer or principal accounting officer of the Company, stating that
(1) a review of the activities of the Company and the
Subsidiary Issuers during such year and of each of the Company's and
the Subsidiary Issuers' performance under this Indenture and under the
terms of the Securities has been made under his supervision; and
(2) to the best of his knowledge, based on such review, each
of the Company and the Subsidiary Issuers has complied with all
conditions and covenants under this Indenture
48
through such year, or, if there has been a default in the fulfillment
of any such obligation, specifying each such default known to him and
the nature and status thereof.
Section 1005. Corporate Existence. Subject to Article Eight
each of the Issuers and the Guarantors will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence.
Section 1006. Limitation on Liens and Sale Leaseback
Transactions. (a) So long as any of the Securities of any of the Issuers shall
be Outstanding, the Company will not, nor will it permit any Subsidiary to,
create, assume, incur or suffer to exist any Mortgage upon any stock or
Indebtedness, whether owned on the date of this Indenture or hereafter acquired,
of any Domestic Subsidiary, to secure any Debt of the Company or any other
Person (other than the Securities), without in any such case making effective
provision whereby all of the Securities Outstanding shall be directly secured
equally and ratably with such Debt, excluding, however, from the operation of
the foregoing provisions of this Subsection (a) any Mortgage upon stock or
indebtedness of any corporation existing at the time such corporation becomes a
Domestic Subsidiary, or existing upon stock or indebtedness of a Domestic
Subsidiary at the time of acquisition of such stock or indebtedness, and any
extension, renewal or replacement (or successive extensions, renewals or
replacements) in whole or in part of any such Mortgage; provided, however that
the principal amount of Debt secured thereby shall not exceed the principal
amount of Debt so secured at the time of such extension, renewal or replacement;
and provided further, that such Mortgage shall be limited to all or such part of
the stock or indebtedness which secured the Mortgage so extended, renewed or
replaced.
(b) So long as any of the Securities of any of the Issuers
shall be Outstanding, the Company will not, nor will it permit any Restricted
Subsidiary to, create, assume, incur or suffer to exist any Mortgage upon any
Principal Property, whether owned or leased on the date of this Indenture or
hereafter acquired, to secure any Debt of the Company or any other Person (other
than the Securities), without in any such case making effective provision
whereby all of the Securities outstanding shall be directly secured equally and
ratably with such Debt, excluding, however, from the operation of the foregoing
provisions of this Subsection (b):
(i) any Mortgage upon property owned or leased by any
corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(ii) any Mortgage upon property existing at the time of
acquisition thereof or to secure the payment of all or any part of the
purchase price thereof or to secure any Debt incurred prior to, at the
time of or within 180 days after the acquisition of such property for
the purpose of financing all or any part of the purchase price thereof;
(iii) any Mortgage upon property to secure all or any part of
the cost of exploration, drilling, development, construction,
alteration, repair or improvement of all or any part of such property,
or Debt incurred prior to, at the time of or within 180 days after the
completion of such exploration, drilling, development, construction,
alteration, repair or improvement for the purpose of financing all or
any part of such cost;
(iv) any Mortgage securing Debt of a Restricted Subsidiary
owing to the Company or to another Restricted Subsidiary;
(v) any Mortgage existing at the date of this Indenture; and
(vi) any extension, renewal or replacement (or successive
extensions, renewals or replacements) in whole or in part of any
Mortgage referred to in the foregoing clauses (i) to (v), inclusive;
provided, however, that the principal amount of Debt secured thereby
shall not exceed the principal amount of Debt so secured at the time of
such extension, renewal or replacement; and provided further, that such
Mortgage shall be limited to all or such part of
49
the property which secured the Mortgage so extended, renewed or
replaced (plus improvements on such property).
Notwithstanding the foregoing provisions of this Subsection (b), the Company
may, and may permit any Restricted Subsidiary to create, assume, incur or suffer
to exist any Mortgage upon any Principal Property which is not excepted by
clauses (i) through (vi) above without equally and ratably securing the
Securities, provided that the aggregate amount of all Debt then outstanding
secured by such Mortgage and all similar Mortgages does not exceed 10% of the
total consolidated stockholders' equity of the Company as shown on the audited
consolidated balance sheet contained in the latest annual report to stockholders
of the Company. For the purpose of this Subsection (b), the following types of
transactions shall not be deemed to create a Mortgage to secure any Debt:
(i) the sale or other transfer of (A) any oil or gas or
minerals in place for a period of time until, or in an amount such
that, the purchaser will realize therefrom a specified amount of money
(however determined) or a specified amount of such oil or gas or
minerals, or (B) any other interest in property of the character
commonly referred to as a "production payment"; and
(ii) any Mortgage in favor of the United States of America or
any State thereof, or any other country, or any political subdivision
of any of the foregoing, to secure partial, progress, advance or other
payments pursuant to the provisions of any contract or statute, or any
Mortgage upon property of the Company or a Restricted Subsidiary
intended to be used primarily for the purpose of or in connection with
air or water pollution control, provided that no such Mortgage shall
extend to any other property of the Company or any Restricted
Subsidiary.
(c) So long as any of the Securities of any of the Issuers
shall be Outstanding, the Company will not, nor will it permit any Restricted
Subsidiary to, enter into any arrangement with any Person providing for the
leasing by the Company or a Restricted Subsidiary as lessee of any Principal
Property (except for temporary leases for a term, including renewals, of not
more than five years), which property has been or is to be sold or transferred
by the Company or such Restricted Subsidiary to such Person (herein referred to
as a "Sale-Leaseback Transaction"), unless (i) such Sale- Leaseback Transaction
occurs within 120 days from the date of acquisition of such Principal Property
or the date of the completion of construction or commencement of full operations
on such Principal Property, whichever is later, or (ii) the Company, within 120
days after such Sale-Leaseback Transaction, applies or causes to be applied to
the retirement of Funded Debt of the Company or any Subsidiary (other than
Funded Debt of the Company which by its terms or the terms of the instrument
pursuant to which it was issued is subordinate in right of payment to the
Securities) an amount not less than the net proceeds of the sale of such
Principal Property.
Notwithstanding the foregoing provisions of this paragraph
(c), the Company may, and may permit any Restricted Subsidiary to, effect any
Sale-Leaseback Transaction involving any Principal Property, provided that the
net sale proceeds from such Sale-Leaseback Transaction, together with all Debt
secured by Mortgages not specifically excluded pursuant to clauses (i) through
(vi) of paragraph (b) of this Section 1006 from the operation of such paragraph
(b), does not exceed 10% of the total consolidated stockholders' equity of the
Company as shown on the audited consolidated balance sheet contained in the
latest annual report to stockholders of the Company.
Section 1007. Limitation on Transfers of Principal Properties
to Unrestricted Subsidiaries. So long as any of the Securities of any of the
Issuers shall be Outstanding, the Company will not, nor will it permit any
Restricted Subsidiary to, sell, transfer or otherwise dispose of any Principal
Property to any Unrestricted Subsidiary other than for cash or other
consideration which, in the opinion of the Board of Directors of the Company,
constitutes fair value for such Principal Property.
Section 1008. Waiver of Certain Covenants. Any of the Issuers
and the Guarantor may omit in respect of any series of Securities, in any
particular instance, to comply with any
50
covenant or condition set forth in Sections 1006 and 1007, if before or after
the time for such compliance the Holders of at least a majority in principal
amount of the Securities at the time Outstanding of such series shall, by Act of
such Securityholders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article. Any of the Issuers may
reserve the right to redeem and pay before Stated Maturity all or any part of
the Securities of any series, either by optional redemption, sinking or purchase
fund or analogous obligation or otherwise, by provision therefor in the form of
Security for such series established and approved pursuant to Section 202 and on
such terms as are specified in such form or in the Board Resolution or indenture
supplemental hereto with respect to Securities of such series as provided in
Section 301. Redemption of Securities of any series shall be made in accordance
with the terms of such Securities and, to the extent that this Article does not
conflict with such terms, the succeeding Sections of this Article.
Section 1102. Election to Redeem; Notice to Trustee. The
election of an Issuer to redeem any Securities redeemable at the election of
such Issuer shall be evidenced by, or made pursuant to authority granted by, a
Board Resolution. In case of any redemption at the election of an Issuer of any
Securities of any series, such Issuer shall, at least 60 days prior to the
Redemption Date fixed by such Issuer (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Securities of such series to be redeemed. No optional
redemption (other than in whole) of any series of Securities shall be made so
long as any Event of Default or any event which, after notice or lapse of time
or both, shall be an Event of Default shall have occurred and be continuing with
respect to such series of Securities.
In the case of any redemption of Securities (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture, or (ii) pursuant to an election of an
Issuer which is subject to a condition specified in the terms of such
Securities, such Issuer shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
Section 1103. Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities of like tenor and terms 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 pro rata, by lot or by the
Trustee, from the Outstanding Securities of such series not previously called
for redemption, by such method as the Trustee shall deem fair and appropriate
and which may include provision for the selection for redemption of portions of
the principal of Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of that series. Unless otherwise
provided in the terms of a particular series of Securities, the portions of the
principal of Securities so selected for partial redemption shall be equal to the
minimum authorized denomination of the Securities of such series, or an integral
multiple thereof, and the principal amount which remains outstanding shall not
be less than the minimum authorized denomination for Securities of such series.
If less than all the Securities of unlike tenor and terms of a series are to be
redeemed, the particular Securities to be redeemed shall be selected by the
applicable Issuer.
The Trustee shall promptly notify the applicable Issuer in
writing of the Securities selected for redemption and, in the case of any
Security selected for partial redemption, the principal amount thereof to be
redeemed.
51
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 Security redeemed or to be redeemed only in
part, to the portion of the principal of such Security which has been or is to
be redeemed.
Section 1104. Notice of Redemption. Notice of redemption shall
be given by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date, to each holder of Securities to be
redeemed, at his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all Outstanding Securities of any series are
to be redeemed, the identification (and, in the case of partial
redemption, the respective principal amounts) of the Securities to be
redeemed, from the Holder to whom the notice is given;
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security, and that interest, if
any, thereon shall cease to accrue from and after said date;
(5) the place where such Securities are to be surrendered for
payment of the Redemption Price, which shall be the office or agency of
the applicable Issuer in the Place of Payment; and
(6) that the redemption is on account of a sinking or purchase
fund, or other analogous obligation, if that be the case.
Notice of redemption of Securities to be redeemed at the
election of an Issuer shall be given by such Issuer or, at such Issuer's
request, by the Trustee in the name and at the expense of such Issuer.
Section 1105. Deposit of Redemption Price. Prior to 10:00a.m.
on any Redemption Date, the applicable Issuer shall deposit with the Trustee or
with a Paying Agent (or, if such Issuer is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 1003) an amount of money in
immediately available funds sufficient to pay the Redemption Price of all the
Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date. Notice of
Redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified and from and after such date (unless the applicable Issuer
shall default in the payment of the Redemption Price) such Securities shall
cease to bear interest. Upon surrender of such Securities for redemption in
accordance with the notice, such Securities shall be paid by the applicable
Issuer at the Redemption Price. Installments of interest the Stated Maturity of
which is on or prior to the Redemption Date shall be payable to the Holders of
such Securities registered as such on the relevant Regular Record Dates
according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid, bear
interest from the Redemption Date at the rate borne by the Security, or as
otherwise provided in such Security.
Section 1107. Securities Redeemed in Part. Any Security which
is to be redeemed only in part shall be surrendered at the office or agency of
the applicable Issuer in the Place of Payment with respect to that series (with,
if the applicable Issuer or the Trustee so requires, due
52
endorsement by, a written instrument of transfer in form satisfactory to the
applicable Issuer and the Trustee duly executed by, the Holder thereof or his
attorney duly authorized in writing) and the applicable Issuer shall execute and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series and
Stated Maturity and of like tenor and terms, 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.
Section 1108. Provisions with Respect to any Sinking Funds.
Unless the form or terms of any series of Securities shall provide otherwise, in
lieu of making all or any part of any mandatory sinking fund payment with
respect to such series of Securities in cash, the applicable Issuer may at its
option (1) deliver to the Trustee for cancelation any Securities of such series
theretofore acquired by such Issuer, or (2) receive credit for any Securities of
such series (not previously so credited) acquired by such Issuer and theretofore
delivered to the Trustee for cancelation or redeemed by such Issuer other than
through the mandatory sinking fund, and if it does so then (i) Securities so
delivered or credited shall be credited at the applicable sinking fund
Redemption Price with respect to Securities of such series, and (ii) on or
before the 60th day next preceding each sinking fund Redemption Date with
respect to such series of Securities, such Issuer will deliver to the Trustee
(A) an Officers' Certificate specifying the portions of such sinking fund
payment to be satisfied by payment of cash and by delivery or credit of
Securities of such series acquired by such Issuer or so redeemed, and (B) such
Securities so acquired, to the extent not previously surrendered. Such Officers'
Certificate shall also state the basis for such credit and that the Securities
for which such Issuer elects to receive credit have not been previously so
credited and were not redeemed by such Issuer through operation of the mandatory
sinking fund, if any, provided with respect to such Securities and shall also
state that no Event of Default with respect to Securities of such series has
occurred and is continuing. All Securities so delivered to the Trustee shall be
canceled by the Trustee and no Securities shall be authenticated in lieu
thereof.
If the sinking fund payment or payments (mandatory or
optional) with respect to any series of Securities made in cash plus any unused
balance of any preceding sinking fund payments with respect to Securities of
such series made in cash shall exceed $50,000 (or a lesser sum if the applicable
Issuer shall so request), unless otherwise provided by the terms of such series
of Securities, that cash shall be applied by the Trustee on the sinking fund
Redemption Date with respect to Securities of such series next following the
date of such payment to the redemption of Securities of such series at the
applicable sinking fund Redemption Price with respect to Securities of such
series, together with accrued interest, if any, to the date fixed for
redemption, with the effect provided in Section 1106. The Trustee shall select,
in the manner provided in Section 1103, for redemption on such sinking fund
Redemption Date a sufficient principal amount of Securities of such series to
utilize that cash and shall thereupon cause notice of redemption of the
Securities of such series for the sinking fund to be given in the manner
provided in Section 1104 (and with the effect provided in Section 1106) for the
redemption of Securities in part at the option of the applicable Issuer. Any
sinking fund moneys not so applied or allocated by the Trustee to the redemption
of Securities of such series shall be added to the next cash sinking fund
payment with respect to Securities of such series received by the Trustee and,
together with such payment, shall be applied in accordance with the provisions
of this Section 1108. Any and all sinking fund moneys with respect to Securities
of any series held by the Trustee at the Maturity of Securities of such series,
and not held for the payment or redemption of particular Securities of such
series, shall be applied by the Trustee, together with other moneys, if
necessary, to be deposited sufficient for the purpose, to the payment of the
principal of the Securities of such series at Maturity.
On or before each sinking fund Redemption Date provided with
respect to Securities of any series, the applicable Issuer shall pay to the
Trustee in cash a sum equal to all accrued interest, if any, to the date fixed
for redemption on Securities to be redeemed on such sinking fund Redemption Date
pursuant to this Section 1108.
53
ARTICLE TWELVE
Guarantees of Securities of Subsidiary Issuers
Section 1201. Guarantees. This Section 1201 and Section 1202
apply to the Securities of any series of any Subsidiary Issuer to the extent
that the form of the Guarantees to be endorsed on such Securities is not
otherwise established as contemplated by Section 3.01.
The Guarantor hereby fully and unconditionally guarantees to
each Holder of a Security of each series issued by a Subsidiary Issuer,
authenticated and delivered by the Trustee the due and punctual payment of the
principal (including any amount due in respect of any Original Issue Discount
Security) of and any premium and interest on such Security, and the due and
punctual payment of any sinking fund payments provided for pursuant to the terms
of such Security, when and as the same shall become due and payable, whether at
the Stated Maturity, by declaration of acceleration, call for redemption, early
repayment or otherwise, in accordance with the terms of such Security and this
Indenture. The Guarantor hereby agrees that in the event of an Event of Default
its obligations hereunder shall be as if it were a principal debtor and not
merely a surety, and shall be absolute and unconditional, irrespective of, and
shall be unaffected by, any invalidity, irregularity or unenforceability of any
Security of any series or this Indenture, any failure to enforce the provisions
of any Security of any series or this Indenture, any waiver, modification or
indulgence granted to the applicable Subsidiary Issuer with respect thereto, by
the Holder of any Security of any series of such Subsidiary Issuer or the
Trustee, or any other circumstances which may otherwise constitute a legal or
equitable discharge of a surety or Guarantor; provided, however, that,
notwithstanding the foregoing, no such waiver, modification or indulgence shall,
without the consent of the Guarantor, increase the principal amount of any
Security of a Subsidiary Issuer or the Interest rate thereon or increase any
premium payable upon redemption thereof. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger or bankruptcy of the applicable Subsidiary Issuer, any right to require a
proceeding first against such Subsidiary Issuer, the benefit of discussion,
protest or notice with respect to any Security of such Subsidiary Issuer or the
indebtedness evidenced thereby or with respect to any sinking fund payment
required pursuant to the terms of such Security issued under this Indenture and
all demands whatsoever, and covenants that this Guarantee will not be discharged
with respect to such Security except by payment in full of the principal thereof
and any premium and interest thereon or as provided in Article Four or Section
801. If any Holder or the Trustee is required by any court or otherwise to
return to any Subsidiary Issuer, the Guarantor, or any custodian, trustee,
liquidator or other similar official acting in relation to such Issuer or the
Guarantor any amount paid by such Issuer or the Guarantor to the Trustee or such
Holder, this Guarantee to the extent theretofore discharged, shall be reinstated
in full force and effect. The Guarantor further agrees that, as between the
Guarantor, on the one hand, and the Holders and the Trustee, on the other hand,
the Maturity of the obligations guaranteed hereby may be accelerated as provided
in Article Five hereof for the purposes of this Guarantee, notwithstanding any
stay, injunction or other prohibition preventing such acceleration in respect of
the obligations guaranteed hereby.
The Guarantor also agrees, to pay any and all reasonable costs
and expenses (including reasonable attorneys' fees and expenses) incurred by the
Trustee or any Holders in enforcing any rights under this Guarantee.
The Guarantee hereby waives any right of set-off which the
Guarantor may have against the Holder of any Security of a Subsidiary Issuer in
respect of any amounts which are or may become payable by such Holder to such
Subsidiary Issuer.
The Guarantor shall be subrogated to all rights of the Holders
of any series of Securities and the Trustee against the applicable Subsidiary
Issuer in respect of any amounts paid to such Holders and the Trustee by the
Guarantor pursuant to the provisions of the Guarantees; provided, however, that
the Guarantor shall not be entitled to enforce or to receive any payments
arising out of or based upon, such right of subrogation until the principal of,
premium, if any, and interest, if any, on all of the Securities of such series
shall have been paid in full.
54
No past, present or future stockholder, officer, director,
employee or incorporator of the Guarantor shall have any personal liability
under the Guarantees set forth in this Section 1201 by reason of his or its
status as such stockholder, officer, director, employee or incorporator.
The Guarantees set forth in this Section 1201 shall not be
valid or become obligatory for any purpose with respect to a Security until the
certificate of authentication on such Security shall have been signed by or on
behalf of the Trustee.
Section 1202. Execution of Guarantees. To evidence its
Guarantee to the Holders specified in Section 1201, the Guarantor hereby agrees
to execute the notation of the Guarantee in substantially the form set forth in
Section 205 to be endorsed on each Security of each Subsidiary Issuer
authenticated and delivered by the Trustee. The Guarantor hereby agrees that its
Guarantee set forth in Section 1201 shall remain in full force and effect
notwithstanding any failure to endorse on each Security of each Subsidiary.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
UNION PACIFIC RESOURCES GROUP INC.,
by
_____________________________
Name:
Title:
UNION PACIFIC RESOURCES INC,
by
_____________________________
Name:
Title:
UPR CAPITAL COMPANY,
by
_____________________________
Name:
Title:
THE BANK OF NEW YORK,
by
_____________________________
Name:
Title:
