Energy XXI (Bermuda) Limited, as Issuer and The Subsidiary Guarantors named herein, as Subsidiary Guarantors to [Trustee's Name], as Trustee SUBORDINATED INDENTURE Dated as of _____________, 200_
Exhibit
4.5
Energy
XXI (Bermuda) Limited,
as
Issuer
and
The
Subsidiary Guarantors named herein,
as
Subsidiary Guarantors
to
[Trustee's
Name],
as
Trustee
Dated
as of _____________, 200_
TABLE
OF CONTENTS
|
PAGE
|
||
|
PARTIES
|
1
|
|
|
RECITALS
OF THE COMPANY AND THE SUBSIDIARY GUARANTORS
|
1
|
|
|
ARTICLE
ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION
|
||
|
SECTION
101.
|
Definitions.
|
1
|
|
Act
|
2
|
|
|
Affiliate
|
2
|
|
|
Authenticating
Agent
|
2
|
|
|
Board
of Directors
|
2
|
|
|
Board
Resolution
|
2
|
|
|
Business
Day
|
2
|
|
|
Capital
Stock
|
2
|
|
|
Commission
|
2
|
|
|
Common
Stock
|
3
|
|
|
Company
|
3
|
|
|
Company
Request
|
3
|
|
|
Company
Order
|
3
|
|
|
Conversion
Agent
|
3
|
|
|
Corporate
Trust Office
|
3
|
|
|
corporation
|
3
|
|
|
Covenant
Defeasance
|
3
|
|
|
Defaulted
Interest
|
3
|
|
|
Defeasance
|
3
|
|
|
Depositary
|
3
|
|
|
Event
of Default
|
3
|
|
|
Exchange
Act
|
3
|
|
|
Expiration
Date
|
3
|
|
|
Global
Security
|
3
|
|
|
Holder
|
3
|
|
|
Indenture
|
3
|
|
|
interest
|
4
|
|
|
Interest
Payment Date
|
4
|
|
|
Investment
Company Act
|
4
|
|
|
Maturity
|
4
|
|
|
Notice
of Default
|
4
|
|
|
Officers'
Certificate
|
4
|
|
|
Opinion
of Counsel
|
4
|
|
|
Original
Issue Discount Security
|
4
|
|
|
Outstanding
|
4
|
|
|
Paying
Agent
|
5
|
|
|
Person
|
5
|
|
|
Place
of Payment
|
5
|
|
|
Predecessor
Security
|
6
|
|
|
Redemption
Date
|
6
|
|
|
Redemption
Price
|
6
|
|
|
Regular
Record Date
|
6
|
|
|
Securities
|
6
|
|
|
Securities
Act
|
6
|
|
|
Security
Register
|
6
|
|
|
Security
Registrar
|
6
|
|
|
Senior
Debt
|
6
|
|
|
Significant
Subsidiary
|
6
|
|
|
Special
Record Date
|
6
|
|
|
Stated
Maturity
|
6
|
|
|
Subsidiary
|
6
|
|
|
Subsidiary
Guarantees
|
7
|
|
|
Subsidiary
Guarantors
|
7
|
|
|
Trust
Indenture Act
|
7
|
|
|
Trustee
|
7
|
|
|
U.S.
Government Obligation
|
7
|
|
|
Vice
President
|
7
|
|
|
Voting
Stock
|
7
|
|
|
Wholly
Owned Subsidiary
|
7
|
|
|
SECTION
102.
|
Compliance
Certificates and Opinions.
|
7
|
|
SECTION
103.
|
Form
of Documents Delivered to Trustee.
|
8
|
|
SECTION
104.
|
Acts
of Holders; Record Dates.
|
8
|
|
SECTION
105.
|
Notices,
Etc., to Trustee and Company.
|
10
|
|
SECTION
106.
|
Notice
to Holders; Waiver.
|
11
|
|
SECTION
107.
|
Conflict
with Trust Indenture Act.
|
11
|
|
SECTION
108.
|
Effect
of Headings and Table of Contents.
|
11
|
|
SECTION
109.
|
Successors
and Assigns.
|
12
|
|
SECTION
110.
|
Separability
Clause.
|
12
|
|
SECTION
111.
|
Benefits
of Indenture.
|
12
|
|
SECTION
112.
|
Governing
Law.
|
12
|
|
SECTION
113.
|
Legal
Holidays.
|
12
|
|
ARTICLE
TWO SECURITY FORMS
|
||
|
SECTION
201.
|
Forms
Generally.
|
12
|
|
SECTION
202.
|
Form
of Face of Security.
|
13
|
|
SECTION
203.
|
Form
of Reverse of Security.
|
15
|
|
SECTION
204.
|
Form
of Subsidiary Guarantee.
|
19
|
|
SECTION
205.
|
Form
of Legend for Global Securities.
|
21
|
|
SECTION
206.
|
Form
of Trustee's Certificate of Authentication.
|
21
|
|
SECTION
207.
|
Form
of Conversion Notice.
|
22
|
|
ARTICLE
THREE THE SECURITIES
|
||
|
SECTION
301.
|
Amount
Unlimited; Issuable in Series.
|
23
|
ii
|
SECTION
302.
|
Denominations.
|
26
|
|
SECTION
303.
|
Execution,
Authentication, Delivery and Dating.
|
26
|
|
SECTION
304.
|
Temporary
Securities.
|
27
|
|
SECTION
305.
|
Registration,
Registration of Transfer and Exchange.
|
28
|
|
SECTION
306.
|
Mutilated,
Destroyed, Lost and Stolen Securities.
|
29
|
|
SECTION
307.
|
Payment
of Interest; Interest Rights Preserved.
|
30
|
|
SECTION
308.
|
Persons
Deemed Owners.
|
31
|
|
SECTION
309.
|
Cancellation.
|
32
|
|
SECTION
310.
|
Computation
of Interest.
|
32
|
|
ARTICLE
FOUR SATISFACTION AND DISCHARGE
|
||
|
SECTION
401.
|
Satisfaction
and Discharge of Indenture.
|
32
|
|
SECTION
402.
|
Application
of Trust Money.
|
33
|
|
ARTICLE
FIVE REMEDIES
|
||
|
SECTION
501.
|
Events
of Default.
|
34
|
|
SECTION
502.
|
Acceleration
of Maturity; Rescission and Annulment.
|
36
|
|
SECTION
503.
|
Collection
of Indebtedness and Suits for Enforcement by Trustee.
|
37
|
|
SECTION
504.
|
Trustee
May File Proofs of Claim.
|
37
|
|
SECTION
505.
|
Trustee
May Enforce Claims Without Possession of Securities.
|
38
|
|
SECTION
506.
|
Application
of Money Collected.
|
38
|
|
SECTION
507.
|
Limitation
on Suits.
|
38
|
|
SECTION
508.
|
Unconditional
Right of Holders to Receive Principal, Premium and
Interest.
|
39
|
|
SECTION
509.
|
Restoration
of Rights and Remedies.
|
39
|
|
SECTION
510.
|
Rights
and Remedies Cumulative.
|
39
|
|
SECTION
511.
|
Delay
or Omission Not Waiver.
|
40
|
|
SECTION
512.
|
Control
by Holders.
|
40
|
|
SECTION
513.
|
Waiver
of Past Defaults.
|
40
|
|
SECTION
514.
|
Undertaking
for Costs.
|
41
|
|
SECTION
515.
|
Waiver
of Usury, Stay or Extension Laws.
|
41
|
|
ARTICLE
SIX THE TRUSTEE
|
||
|
SECTION
601.
|
Certain
Duties and Responsibilities.
|
41
|
|
SECTION
602.
|
Notice
of Defaults.
|
41
|
|
SECTION
603.
|
Certain
Rights of Trustee.
|
42
|
|
SECTION
604.
|
Not
Responsible for Recitals or Issuance of Securities.
|
42
|
|
SECTION
605.
|
May
Hold Securities.
|
43
|
|
SECTION
606.
|
Money
Held in Trust.
|
43
|
|
SECTION
607.
|
Compensation
and Reimbursement.
|
43
|
|
SECTION
608.
|
Conflicting
Interests.
|
43
|
|
SECTION
609.
|
Corporate
Trustee Required; Eligibility.
|
44
|
|
SECTION
610.
|
Resignation
and Removal; Appointment of Successor.
|
44
|
|
SECTION
611.
|
Acceptance
of Appointment by Successor.
|
45
|
iii
|
SECTION
612.
|
Merger,
Conversion, Consolidation or Succession to Business.
|
46
|
|
SECTION
613.
|
Preferential
Collection of Claims Against Company and Subsidiary
Guarantors.
|
47
|
|
SECTION
614.
|
Appointment
of Authenticating Agent.
|
47
|
|
ARTICLE
SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
||
|
SECTION
701.
|
Company
to Furnish Trustee Names and Addresses of Holders.
|
48
|
|
SECTION
702.
|
Preservation
of Information; Communications to Holders.
|
49
|
|
SECTION
703.
|
Reports
by Trustee.
|
49
|
|
SECTION
704.
|
Reports
by Company and Subsidiary Guarantors.
|
49
|
|
ARTICLE
EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR
LEASE
|
||
|
SECTION
801.
|
Company
May Consolidate, Etc., Only on Certain Terms.
|
50
|
|
SECTION
802.
|
Subsidiary
Guarantors May Consolidate, Etc., Only on Certain Terms.
|
51
|
|
SECTION
803.
|
Successor
Substituted.
|
51
|
|
ARTICLE
NINE SUPPLEMENTAL INDENTURES
|
||
|
SECTION
901.
|
Supplemental
Indentures Without Consent of Holders.
|
52
|
|
SECTION
902.
|
Supplemental
Indentures With Consent of Holders.
|
53
|
|
SECTION
903.
|
Execution
of Supplemental Indentures.
|
54
|
|
SECTION
904.
|
Effect
of Supplemental Indentures.
|
54
|
|
SECTION
905.
|
Conformity
with Trust Indenture Act.
|
54
|
|
SECTION
906.
|
Reference
in Securities to Supplemental Indentures.
|
55
|
|
ARTICLE
TEN COVENANTS
|
||
|
SECTION
1001.
|
Payment
of Principal, Premium and Interest.
|
55
|
|
SECTION
1002.
|
Maintenance
of Office or Agency.
|
55
|
|
SECTION
1003.
|
Money
for Securities Payments to Be Held in Trust.
|
56
|
|
SECTION
1004.
|
Statement
by Officers as to Default.
|
57
|
|
SECTION
1005.
|
Existence.
|
57
|
|
SECTION
1006.
|
Maintenance
of Properties.
|
57
|
|
SECTION
1007.
|
Payment
of Taxes and Other Claims.
|
57
|
|
SECTION
1008.
|
Maintenance
of Insurance.
|
58
|
|
SECTION
1009.
|
Waiver
of Certain Covenants.
|
58
|
|
ARTICLE
ELEVEN REDEMPTION OF SECURITIES
|
||
|
SECTION
1101.
|
Applicability
of Article.
|
58
|
|
SECTION
1102.
|
Election
to Redeem; Notice to Trustee.
|
58
|
|
SECTION
1103.
|
Selection
by Trustee of Securities to Be Redeemed.
|
59
|
|
SECTION
1104.
|
Notice
of Redemption.
|
60
|
|
SECTION
1105.
|
Deposit
of Redemption Price.
|
60
|
|
SECTION
1106.
|
Securities
Payable on Redemption Date.
|
61
|
|
SECTION
1107.
|
Securities
Redeemed in Part.
|
61
|
iv
|
ARTICLE
TWELVE SUBORDINATION OF SECURITIES
|
||
|
SECTION
1201.
|
Applicability
of Article.
|
61
|
|
SECTION
1202.
|
Securities
Subordinate to Senior Debt.
|
61
|
|
SECTION
1203.
|
Payment
Over of Proceeds Upon Dissolution, Etc.
|
62
|
|
SECTION
1204.
|
No
Payment When Senior Debt of the Company in Default.
|
63
|
|
SECTION
1205.
|
Payment
Permitted If No Default.
|
64
|
|
SECTION
1206.
|
Subrogation
to Rights of Holders of Senior Debt of the Company.
|
64
|
|
SECTION
1207.
|
Provisions
Solely to Define Relative Rights.
|
65
|
|
SECTION
1208.
|
Trustee
to Effectuate Subordination.
|
65
|
|
SECTION
1209.
|
No
Waiver of Subordination Provisions.
|
65
|
|
SECTION
1210.
|
Notice
to Trustee.
|
66
|
|
SECTION
1211.
|
Reliance
on Judicial Order or Certificate of Liquidating Agent.
|
66
|
|
SECTION
1212.
|
Trustee
Not Fiduciary for Holders of Senior Debt of the Company.
|
67
|
|
SECTION
1213.
|
Rights
of Trustee as Holder of Senior Debt of the Company; Preservation
of
Trustee's Rights.
|
67
|
|
SECTION
1214.
|
Article
Applicable to Paying Agents.
|
67
|
|
SECTION
1215.
|
Defeasance
of this Article Twelve.
|
67
|
|
ARTICLE
THIRTEEN SUBSIDIARY GUARANTEES
|
||
|
SECTION
1301.
|
Applicability
of Article.
|
68
|
|
SECTION
1302.
|
Subsidiary
Guarantees.
|
68
|
|
SECTION
1303.
|
Execution
and Delivery of Subsidiary Guarantees.
|
70
|
|
SECTION
1304.
|
Release
of Subsidiary Guarantors.
|
70
|
|
SECTION
1305.
|
Additional
Subsidiary Guarantors.
|
71
|
|
SECTION
1306.
|
Limitation
on Liability.
|
71
|
|
ARTICLE
FOURTEEN SUBORDINATION OF SUBSIDIARY GUARANTEES
|
||
|
SECTION
1401.
|
Applicability
of Article.
|
71
|
|
SECTION
1402.
|
Subsidiary
Guarantees Subordinate to Senior Debt of Subordinate
Guarantors.
|
71
|
|
SECTION
1403.
|
Payment
Over of Proceeds Upon Dissolution, Etc.
|
72
|
|
SECTION
1404.
|
No
Payment When Senior Debt of such Subsidiary Guarantor in
Default.
|
73
|
|
SECTION
1405.
|
Payment
Permitted If No Default.
|
74
|
|
SECTION
1406.
|
Subrogation
to Rights of Holders of Senior Debt of such Subsidiary
Guarantor.
|
74
|
|
SECTION
1407.
|
Provisions
Solely to Define Relative Rights.
|
74
|
|
SECTION
1408.
|
Trustee
to Effectuate Subordination.
|
75
|
|
SECTION
1409.
|
No
Waiver of Subordination Provisions.
|
75
|
|
SECTION
1410.
|
Notice
to Trustee.
|
75
|
|
SECTION
1411.
|
Reliance
on Judicial Order or Certificate of Liquidating Agent.
|
76
|
|
SECTION
1412.
|
Trustee
Not Fiduciary for Holders of Senior Debt of such Subsidiary
Guarantor.
|
76
|
v
|
SECTION
1413.
|
Rights
of Trustee as Holder of Senior Debt of such Subsidiary Guarantor;
Preservation of Trustee's Rights.
|
77
|
|
SECTION
1414.
|
Article
Applicable to Paying Agents.
|
77
|
|
SECTION
1415.
|
Defeasance
of this Article Fourteen.
|
77
|
|
ARTICLE
FIFTEEN DEFEASANCE AND COVENANT DEFEASANCE
|
||
|
SECTION
1501.
|
Company's
Option to Effect Defeasance or Covenant Defeasance.
|
77
|
|
SECTION
1502.
|
Defeasance
and Discharge.
|
78
|
|
SECTION
1503.
|
Covenant
Defeasance.
|
78
|
|
SECTION
1504.
|
Conditions
to Defeasance or Covenant Defeasance.
|
79
|
|
SECTION
1505.
|
Deposited
Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous
Provisions.
|
81
|
|
SECTION
1506.
|
Reinstatement.
|
81
|
|
ARTICLE
SIXTEEN SINKING FUNDS
|
||
|
SECTION
1601.
|
Applicability
of Article.
|
82
|
|
SECTION
1602.
|
Satisfaction
of Sinking Fund Payments with Securities.
|
82
|
|
SECTION
1603.
|
Redemption
of Securities for Sinking Fund.
|
82
|
|
SIGNATURES
|
83
|
|
|
SCHEDULE
I
|
I-1
|
|
vi
ENERGY
XXI (BERMUDA) LIMITED
CERTAIN
SECTIONS OF THIS INDENTURE RELATING TO SECTIONS 310
THROUGH 318,
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939:
|
TRUST
INDENTURE
ACT SECTION
|
INDENTURE
SECTION
|
|
Section
310(a)(1)
|
609
|
|
(a)(2)
|
609
|
|
(a)(3)
|
Not
Applicable
|
|
(a)(4)
|
Not
Applicable
|
|
(b)
|
608
|
|
610
|
|
|
Section
311(a)
|
613
|
|
(b)
|
613
|
|
Section
312(a)
|
701
|
|
702
|
|
|
(b)
|
702
|
|
(c)
|
702
|
|
Section
313(a)
|
703
|
|
(b)
|
703
|
|
(c)
|
703
|
|
(d)
|
703
|
|
Section
314(a)
|
704
|
|
(a)(4)
|
101
|
|
1004
|
|
|
(b)
|
Not
Applicable
|
|
(c)(1)
|
102
|
|
(c)(2)
|
102
|
|
(c)(3)
|
Not
Applicable
|
|
(d)
|
Not
Applicable
|
|
(e)
|
102
|
|
Section
315(a)
|
601
|
|
(b)
|
602
|
|
(c)
|
601
|
|
(d)
|
601
|
|
(e)
|
514
|
|
Section
316(a)
|
101
|
|
(a)(1)(A)
|
502
|
|
512
|
|
|
(a)(1)(B)
|
513
|
|
(a)(2)
|
Not
Applicable
|
|
(b)
|
508
|
|
(c)
|
104
|
vii
|
TRUST
INDENTURE
ACT SECTION
|
INDENTURE
SECTION
|
|
Section
317(a)(1)
|
503
|
|
(a)(2)
|
504
|
|
(b)
|
1003
|
|
Section
318(a)
|
107
|
NOTE: This
reconciliation and tie shall not, for any purpose, be deemed to be a part of
the
Indenture.
viii
INDENTURE,
dated as of __________, 200__, among Energy XXI (Bermuda) Limited, a corporation
duly organized and existing under the laws of Bermuda (herein called the
"Company"), having its principal office at Canon’s Court, 00 Xxxxxxxx Xxxxxx, XX
Xxx XX 0000, Xxxxxxxx XX EX, Bermuda, each of the Subsidiary Guarantors (as
hereinafter defined) and [Trustee's
Name],
a
banking corporation duly organized and existing under the laws of the State
of
[________],
as
Trustee (herein called the "Trustee").
RECITALS
OF THE COMPANY AND THE SUBSIDIARY GUARANTORS
The
Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its unsecured debentures, notes
or
other evidences of indebtedness (herein called the "Securities"), to be issued
in one or more series as in this Indenture provided.
The
Company and the Subsidiary Guarantors are members of the same consolidated
group
of companies. The Subsidiary Guarantors will derive direct and indirect economic
benefit from the issuance of the Securities. Accordingly, each Subsidiary
Guarantor has duly authorized the execution and delivery of this Indenture
to
provide for its full, unconditional and joint and several guarantee of the
Securities to the extent provided in or pursuant this Indenture.
All
things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
For
and
in consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually agreed, for the equal and proportionate benefit
of all Holders of the Securities or of series thereof, as follows:
ARTICLE
ONE
DEFINITIONS
AND OTHER PROVISIONS
OF
GENERAL APPLICATION
|
SECTION
101.
|
Definitions.
|
For
all
purposes of this Indenture, 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, 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 at the date
of
this instrument;
1
(4) unless
the context otherwise requires, any reference to an "Article" or a "Section"
refers to an Article or a Section, as the case may be, of this Indenture;
and
(5) the
words
"herein", "hereof", "hereunder" and other words of similar import refer to
this
Indenture as a whole and not to any particular Article, Section or other
subdivision.
"Act",
when used with respect to any Holder, has the meaning specified in Section
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;
provided that direct or indirect beneficial ownership of 10% or more of the
Voting Stock of a Person shall be deemed to control.
"Authenticating
Agent" means any Person authorized by the Trustee pursuant to Section 614 to
act
on behalf of the Trustee to authenticate Securities of one or more
series.
"Board
of
Directors" means, with respect to the Company, either the board of directors
of
the Company or any committee of that board duly authorized to act for it in
respect hereof, and with respect to any Subsidiary Guarantor, either the board
of directors of such Subsidiary Guarantor or any committee of that board duly
authorized to act for it in respect hereof.
"Board
Resolution" means, with respect to the Company or a Subsidiary Guarantor, a
copy
of a resolution certified by the Secretary or an Assistant Secretary of the
Company or such Subsidiary Guarantor, as the case may be, to have been duly
adopted by its Board of Directors and to be in full force and effect on the
date
of such certification, and delivered to the Trustee.
"Business
Day", when used with respect to any Place of Payment, means each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in that Place of Payment are authorized or obligated by law or
executive order to close.
"Capital
Stock" of any Person means any and all shares, interests, participations or
other equivalents (however designated) of corporate stock or other equity
participations, including partnership interests, whether general or limited,
of
such Person.
"Commission"
means the Securities and Exchange Commission, from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
2
"Common
Stock" means the common stock, no par value, of the Company as the same exists
at the date of execution and delivery of this Indenture or other Capital Stock
of the Company into which such common stock is converted, reclassified or
changed from time to time.
"Company"
means the Person named as the "Company" in the first paragraph of this
instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company
Request" or "Company Order" means a written request or order signed in the
name
of the Company by its Chairman of the Board of Directors, its Vice Chairman
of
the Board of Directors, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Conversion
Agent" means any Person authorized by the Company to convert any Securities
on
behalf of the Company.
"Corporate
Trust Office" means the principal office of the Trustee at which at any
particular time its corporate trust business shall be administered, such office
being located on the date hereof at [Trustee's
Address].
"corporation"
means a corporation, association, limited liability company, joint-stock company
or business trust.
"Covenant
Defeasance" has the meaning specified in Section 1503.
"Defaulted
Interest" has the meaning specified in Section 307.
"Defeasance"
has the meaning specified in Section 1502.
"Depositary"
means, with respect to Securities of any series issuable in whole or in part
in
the form of one or more Global Securities, a clearing agency registered under
the Exchange Act that is designated to act as Depositary for such Securities
as
contemplated by Section 301.
"Event
of
Default" has the meaning specified in Section 501.
"Exchange
Act" means the Securities Exchange Act of 1934 and any statute successor
thereto, in each case as amended from time to time.
"Expiration
Date" has the meaning specified in Section 104.
"Global
Security" means a Security that evidences all or part of the Securities of
any
series and bears the legend set forth in Section 205 (or such legend as may
be
specified as contemplated by Section 301 for such Securities).
"Holder"
means a Person in whose name a Security is registered in the Security
Register.
"Indenture"
means this instrument as originally executed and as it may from time to time
be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for all purposes
of this instrument and any such supplemental indenture, the provisions of the
Trust Indenture Act that are deemed to be a part of and govern this instrument
and any such supplemental indenture, respectively. The term "Indenture" shall
also include the terms of particular series of Securities established as
contemplated by Section 301.
3
"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 Security, means the Stated Maturity
of an installment of interest on such Security.
"Investment
Company Act" means the Investment Company Act of 1940 and any statute successor
thereto, in each case as amended from time to time.
"Maturity",
when used with respect to any Security, means the date on which the principal
of
such Security or an installment of principal becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Notice
of Default" means a written notice of the kind specified in Section
501(4).
"Officers'
Certificate" means a certificate signed by the Chairman of the Board of
Directors, a Vice Chairman of the Board of Directors, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company or a Subsidiary Guarantor, as the case
may
be, and delivered to the Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 1004 shall be the principal executive,
financial or accounting officer of the Company.
"Opinion
of Counsel" means, as to the Company or a Subsidiary Guarantor, a written
opinion of counsel, who may be counsel for the Company or such Subsidiary
Guarantor, as the case may be, and who shall be acceptable to the
Trustee.
"Original
Issue Discount Security" means any Security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration
of
acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding",
when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture,
except:
(1) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(2) Securities
for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
4
(3) Securities
as to which Defeasance has been effected pursuant to Section 1502;
and
(4) Securities
which have been paid pursuant to Section 306 or in exchange for or in lieu
of
which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such Securities
are
held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided,
however, that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given, made or taken any request,
demand, authorization, direction, notice, consent, waiver or other action
hereunder as of any date, (A) the principal amount of an Original Issue Discount
Security which shall be deemed to be Outstanding shall be the amount of the
principal thereof which would be due and payable as of such date upon
acceleration of the Maturity thereof to such date pursuant to Section 502,
(B)
if, as of such date, the principal amount payable at the Stated Maturity of
a
Security is not determinable, the principal amount of such Security which shall
be deemed to be Outstanding shall be the amount as specified or determined
as
contemplated by Section 301, (C) the principal amount of a Security denominated
in one or more foreign currencies or currency units which shall be deemed to
be
Outstanding shall be the U.S. dollar equivalent, determined as of such date
in
the manner provided as contemplated by Section 301, of the principal amount
of
such Security (or, in the case of a Security described in clause (A) or (B)
above, of the amount determined as provided in such clause), and (D) Securities
owned by the Company, any Subsidiary Guarantor or any other obligor upon the
Securities or any Affiliate of the Company, any Subsidiary Guarantor or of
such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon
any
such request, demand, authorization, direction, notice, consent, waiver or
other
action, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may
be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company, a Subsidiary Guarantor or any other obligor
upon
the Securities or any Affiliate of the Company, a Subsidiary Guarantor or of
such other obligor.
"Paying
Agent" means any Person authorized by the Company to pay the principal of or
any
premium or interest on any Securities on behalf of the Company.
"Person"
means any individual, corporation, partnership, joint venture, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place
of
Payment", when used with respect to the Securities of any series, means the
place or places where the principal of and any premium and interest on the
Securities of that series are payable as specified as contemplated by Section
301.
5
"Predecessor
Security" of any particular Security means every previous Security evidencing
all or a portion of the same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security authenticated and
delivered under Section 306 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt
as
the mutilated, destroyed, lost or stolen Security.
"Redemption
Date", when used with respect to any Security to be redeemed, means the date
fixed for such redemption by or pursuant to this Indenture.
"Redemption
Price", when used with respect to any Security to be redeemed, means the price
at which it is to be redeemed pursuant to this Indenture.
"Regular
Record Date" for the interest payable on any Interest Payment Date on the
Securities of any series means the date specified for that purpose as
contemplated by Section 301.
"Securities"
has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this
Indenture.
"Securities
Act" means the Securities Act of 1933 and any statute successor thereto, in
each
case as amended from time to time.
"Security
Register" and "Security Registrar" have the respective meanings specified in
Section 305.
"Senior
Debt" with respect to any series of Securities shall have the meaning specified
as contemplated by Section 301.
"Significant
Subsidiary" means, at any date of determination, any Subsidiary that represents
10% or more of the Company's consolidated total assets at the end of the most
recent fiscal quarter for which financial information is available or 10% or
more of the Company's consolidated net revenues or consolidated operating income
for the most recent four quarters for which financial information is
available.
"Special
Record Date" for the payment of any Defaulted Interest 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 Person means (1) a corporation more than 50% of the combined voting
power
of the outstanding Voting Stock of which is owned, directly or indirectly,
by
such Person or by one or more other Subsidiaries of such Person or by such
Person and one or more Subsidiaries thereof or (2) any other Person (other
than
a corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly
or
indirectly, has at least a majority ownership and power to direct the policies,
management and affairs thereof.
6
"Subsidiary
Guarantees" means the guarantees of each Subsidiary Guarantor as provided in
Article Thirteen.
"Subsidiary
Guarantors" means (i) the subsidiaries listed in Schedule I hereto; (ii) any
successor of the foregoing; and (iii) each other Subsidiary of the Company
that
becomes a Subsidiary Guarantor in accordance with Section 1305 hereof, in each
case (i), (ii) and (iii) until such Subsidiary Guarantor ceases to be such
in
accordance with Section 1304 hereof.
"Trust
Indenture Act" means the Trust Indenture Act of 1939 as in force at the date
as
of which this instrument was executed; provided, however, that in the event
the
Trust Indenture Act of 1939 is amended after such date, "Trust Indenture Act"
means, to the extent required by any such amendment, the Trust Indenture Act
of
1939 as so amended.
"Trustee"
means the Person named as the "Trustee" in the first paragraph of this
instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or
include each Person who is then a Trustee hereunder, and if at any time there
is
more than one such Person, "Trustee" as used with respect to the Securities
of
any series shall mean the Trustee with respect to Securities of that
series.
"U.S.
Government Obligation" has the meaning specified in Section 1504.
"Vice
President", when used with respect to the Company or the Trustee, means any
vice
president, whether or not designated by a number or a word or words added before
or after the title "vice president".
"Voting
Stock" of any Person means Capital Stock of such Person which ordinarily has
voting power for the election of directors (or persons performing similar
functions) of such Person, whether at all times or only so long as no senior
class of securities has such voting power by reason of any
contingency.
"Wholly
Owned Subsidiary" of any Person means a Subsidiary of such Person all of the
outstanding Capital Stock or other ownership interests of which (other than
directors' qualifying shares) shall at the time be owned by such Person or
by
one or more Wholly Owned Subsidiaries of such Person or by such Person and
one
or more Wholly Owned Subsidiaries of such Person.
|
SECTION
102.
|
Compliance
Certificates and Opinions.
|
Upon
any
application or request by the Company or any Subsidiary Guarantor to the Trustee
to take any action under any provision of this Indenture, the Company and/or
such Subsidiary Guarantor, as appropriate, shall furnish to the Trustee such
certificates and opinions as may be required under the Trust Indenture Act.
Each
such certificate or opinion shall be given in the form of an Officers'
Certificate, if to be given by an officer of the Company or a Subsidiary
Guarantor, or an Opinion of Counsel, if to be given by counsel, and shall comply
with the requirements of the Trust Indenture Act and any other requirements
set
forth in this Indenture.
7
Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a
statement that each individual signing such certificate or opinion has read
such
covenant or condition and the definitions herein relating thereto;
(2) a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(3) a
statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a
statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.
|
SECTION
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 other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any
certificate or opinion of an officer of the Company or a Subsidiary 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 the Company or
such
Subsidiary Guarantor stating that the information with respect to such factual
matters is in the possession of the Company or such Subsidiary 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 Holders; Record Dates.
|
Whenever
in this Indenture it is provided that the Holders of a specified percentage
in
aggregate principal amount of the Securities of any or all series may take
action (including the making of any demand or request, the giving of any
direction, notice, consent or waiver or the taking of any other action) the
fact
that at the time of taking any such action the Holders of such specified
percentage have joined therein may be evidenced (a) by any instrument or any
number of instruments of similar tenor executed by Holders in person or by
agent
or proxy appointed in writing, (b) by the record of the Holders voting in favor
thereof at any meeting of Holders duly called and held in accordance with
procedures approved by the Trustee, (c) by a combination of such instrument
or
instruments and any such record of such a meeting of Holders or (d) in the
case
of Securities evidenced by a Global Security, by any electronic transmission
or
other message, whether or not in written format, that complies with the
Depositary's applicable procedures. Such evidence (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act"
of
the relevant Holders. Proof of execution of any such instrument or of a writing
appointing any such agent or proxy shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
8
The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by a certificate
of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact
and
date of the execution of any such instrument or writing, or the authority of
the
Person executing the same, may also be proved in any other manner that the
Trustee deems sufficient.
The
ownership of Securities shall be proved by the Security Register.
Any
request, demand, authorization, direction, notice, consent, waiver or other
Act
of the Holder of any Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company
in
reliance thereon, whether or not notation of such action is made upon such
Security.
The
Company may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities of any series entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities of such series, provided that the Company may not set
a
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Securities of the relevant series
on such record date, and no other Holders, shall be entitled to take the
relevant action, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken
on
or prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing
in
this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set
pursuant to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no effect),
and nothing in this paragraph shall be construed to render ineffective any
action taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Company, at its
own
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Trustee in writing and
to
each Holder of Securities of the relevant series in the manner set forth in
Section 106.
9
The
Trustee may set any day as a record date for the purpose of determining the
Holders of Outstanding Securities of any series entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Xxxxxxx 000, (xxx) any request to institute proceedings referred
to in Section 507(2) or (iv) any direction referred to in Section 512, in each
case with respect to Securities of such series. If any record date is set
pursuant to this paragraph, the Holders of Outstanding Securities of such series
on such record date, and no other Holders, shall be entitled to join in such
notice, declaration, request or direction, whether or not such Holders remain
Holders after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Securities of such series
on
such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be cancelled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the Company's expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to the Company
in writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 106.
With
respect to any record date set pursuant to this Section, the party hereto which
sets such record dates may designate any day as the "Expiration Date" and from
time to time may change the Expiration Date to any earlier or later day;
provided that no such change shall be effective unless notice of the proposed
new Expiration Date is given to the other party hereto in writing, and to each
Holder of Securities of the relevant series in the manner set forth in
Section 106, on or prior to the existing Expiration Date. If an Expiration
Date is not designated with respect to any record date set pursuant to this
Section, the party hereto which set such record date shall be deemed to have
initially designated the 180th day after such record date as the Expiration
Date
with respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
Without
limiting the foregoing, a Holder entitled hereunder to take any action hereunder
with regard to any particular Security may do so with regard to all or any
part
of the principal amount of such Security or by one or more duly appointed agents
each of which may do so pursuant to such appointment with regard to all or
any
part of such principal amount.
|
SECTION
105.
|
Notices,
Etc., to Trustee and Company.
|
Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
10
(1) the
Trustee by any Holder or by the Company or any Subsidiary Guarantor shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing in the English language to or with the Trustee at its Corporate Trust
Office, Attention: Corporate Trust Department; or
(2) the
Company or any Subsidiary Guarantor by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing in the English language and mailed, first-class postage
prepaid, in the case of the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument or at
any
other address previously furnished in writing to the Trustee by the Company
and,
in the case of any Subsidiary Guarantor, to it at the address of the Company's
principal office specified in the first paragraph of this instrument, Attention:
Chief Financial Officer, or at any other address previously furnished in writing
to the Trustee by such Subsidiary Guarantor.
|
SECTION
106.
|
Notice
to Holders; Waiver.
|
Where
this Indenture provides for notice to Holders of any event, such notice shall
be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event,
at his address as it appears in the Security Register, not later than the latest
date (if any), and not earlier than the earliest date (if any), prescribed
for
the giving of such notice. In any case where notice to Holders is given by
mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the
Trustee, but such filing shall not be a condition precedent to the validity
of
any action taken in reliance upon such waiver.
In
case
by reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
|
SECTION
107.
|
Conflict
with Trust Indenture Act.
|
If
any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act which is required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act which
may be so modified or excluded, the latter provision shall be deemed to apply
to
this Indenture as so modified or to be excluded, as the case may
be.
|
SECTION
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.
11
|
SECTION
109.
|
Successors
and Assigns.
|
All
covenants and agreements in this Indenture by the Company and any Subsidiary
Guarantor shall bind its successors and assigns, whether so expressed or
not.
|
SECTION
110.
|
Separability
Clause.
|
In
case
any provision in this Indenture, the Securities or the Subsidiary Guarantees
shall be invalid, illegal or unenforceable, the validity, legality and enforce
ability of the remaining provisions shall not in any way be affected or impaired
thereby.
|
SECTION
111.
|
Benefits
of Indenture.
|
Nothing
in this Indenture, the Securities or the Subsidiary Guarantees, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the holders of Senior Debt and the Holders, any benefit
or
any legal or equitable right, remedy or claim under this Indenture.
|
SECTION
112.
|
Governing
Law.
|
This
Indenture, the Securities and the Subsidiary Guarantees shall be governed by
and
construed in accordance with the law of the State of New York.
|
SECTION
113.
|
Legal
Holidays.
|
In
any
case where any Interest Payment Date, Redemption Date, purchase date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of any Security which specifically states that such
provision shall apply in lieu of this Section)) payment of interest or principal
(and premium, if any) need not be made at such Place of Payment on such date,
but may be made on the next succeeding Business Day at such Place of Payment
with the same force and effect as if made on the Interest Payment Date,
Redemption Date or purchase date, or at the Stated Maturity.
ARTICLE
TWO
SECURITY
FORMS
|
SECTION
201.
|
Forms
Generally.
|
The
Securities of each series and, if applicable, the Subsidiary Guarantees to
be
endorsed thereon shall be in substantially the form set forth in this Article,
or in such other form as shall be established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations
as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or
Depositary therefor or as may, consistently herewith, be determined by the
officers executing such Securities or Subsidiary Guarantees, as the case may
be,
as evidenced by their execution thereof. If the form of Securities of any series
is established by action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior
to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
12
The
definitive Securities shall be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined
by
the officers executing such Securities, as evidenced by their execution of
such
Securities.
|
SECTION
202.
|
Form
of Face of Security.
|
[Insert
any legend required by the Internal Revenue Code and the regulations
thereunder.]
Energy
XXI (Bermuda) Limited
______________________________________
| No.__________ |
$
________
|
Energy
XXI (Bermuda) Limited, a corporation duly organized and existing under the
laws
of Bermuda (herein called the "Company," which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to ____________________________, or registered assigns, the
principal sum of _____________________________ Dollars on
___________________________________ [if the Security is to bear interest
prior to Maturity, insert -- , and to pay interest thereon from _____________
or
from the most recent Interest Payment Date to which interest has been paid
or
duly provided for, semi-annually on ____________ and ____________ in each year,
commencing _________, at the rate of ____% per annum, until the principal hereof
is paid or made available for payment, provided that any principal and premium,
and any such installment of interest, which is overdue shall bear interest
at
the rate of ____% per annum (to the extent that the payment of such interest
shall be legally enforceable), from the dates such amounts are due until they
are paid or made available for payment, and such interest shall be payable
on
demand. The interest so payable, and punctually paid or duly provided for,
on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities)
is
registered at the close of business on the Regular Record Date for such
interest, which shall be the _______ or _______ (whether or not a Business
Day),
as the case may be, next preceding such Interest Payment Date. Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment
of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner
not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture].
13
[If
the
Security is not to bear interest prior to Maturity, insert -- The principal
of
this Security shall not bear interest except in the case of a default in payment
of principal upon acceleration, upon redemption or at Stated Maturity and in
such case the overdue principal and any overdue premium shall bear interest
at
the rate of ____% per annum (to the extent that the payment of such interest
shall be legally enforceable), from the dates such amounts are due until they
are paid or made available for payment. Interest on any overdue principal or
premium shall be payable on demand. Any such interest on overdue principal
or
premium which is not paid on demand shall bear interest at the rate of ______%
per annum (to the extent that the payment of such interest on interest shall
be
legally enforceable), from the date of such demand until the amount so demanded
is paid or made available for payment. Interest on any overdue interest shall
be
payable on demand.]
Payment
of the principal of (and premium, if any) and [if applicable, insert -- any
such] interest on this Security will be made at the office or agency of the
Company maintained for that purpose in ____________, in such coin or currency
of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option
of
the Company payment of interest may be made by check mailed to the address
of
the Person entitled thereto as such address shall appear in the Security
Register.
Reference
is hereby made to the further provisions of this Security set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless
the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual signature, this Security shall
not
be entitled to any benefit under the Indenture or be valid or obligatory for
any
purpose.
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated:
|
Energy
XXI (Bermuda) Limited
|
|
|
By:
___________________________
|
Attest:
_________________________
14
|
SECTION
203.
|
Form
of Reverse of Security.
|
This
Security is one of a duly authorized issue of securities of the Company (herein
called the "Securities"), issued and to be issued in one or more series under
an
Indenture, dated as of _________, 200__ (herein called the "Indenture", which
term shall have the meaning assigned to it in such instrument), among the
Company, the Subsidiary Guarantors named therein and [Trustee's
Name],
as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), and reference is hereby made to the Indenture for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Subsidiary Guarantors, the Trustee, the holders
of Senior Debt and the Holders of the Securities and of the terms upon which
the
Securities are, and are to be, authenticated and delivered. This Security is
one
of the series designated on the face hereof [if applicable, insert -- , limited
in aggregate principal amount to $ __________].
[If
applicable, insert -- The Securities of this series are subject to redemption
upon not less than 30 days' notice by mail, [if applicable, insert -- (1) on
___________ in any year commencing with the year ______ and ending with the
year
______ through operation of the sinking fund for this series at a Redemption
Price equal to 100% of the principal amount, and (2)] at any time [if
applicable, insert -- on or after __________, 20__], as a whole or in part,
at
the election of the Company, at the following Redemption Prices (expressed
as
percentages of the principal amount): If redeemed [if applicable, insert --
on
or before _______________, ___%, and if redeemed] during the 12-month period
beginning _____________ of the years indicated,
|
Year
|
Redemption
Price
|
Year
|
Redemption
Price
|
and
thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if applicable, insert -- (whether
through operation of the sinking fund or otherwise)] with accrued interest
to
the Redemption Date, but interest installments whose Stated Maturity is on
or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on
the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If
applicable, insert -- The Securities of this series are subject to redemption
upon not less than 30 days' notice by mail, (1) on ____________ in any year
commencing with the year ____ and ending with the year ____ through operation
of
the sinking fund for this series at the Redemption Prices for redemption through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below, and (2) at any time [if applicable, insert --
on
or after ____________], as a whole or in part, at the election of the Company,
at the Redemption Prices for redemption otherwise than through operation of
the
sinking fund (expressed as percentages of the principal amount) set forth in
the
table below: If redeemed during the 12-month period beginning ____________
of
the years indicated,
15
|
Year
|
Redemption
Price
For
Redemption
Through
Operation
of
the
Sinking
Fund
|
Redemption
Price For
Redemption
Otherwise
Than
Through Operation
of
the Sinking Fund
|
and
thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If
applicable, insert -- Notwithstanding the foregoing, the Company may not, prior
to _____________, redeem any Securities of this series as contemplated by [if
applicable, insert -- clause (2) of] the preceding paragraph as a part of,
or in
anticipation of, any refunding operation by the application, directly or
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted financial practice) of less
than _____% per annum.]
[If
applicable, insert -- The sinking fund for this series provides for the
redemption on ____________ in each year beginning with the year _______ and
ending with the year ______ of [if applicable, insert -- not less than $
_________ ("mandatory sinking fund") and not more than] $ ________ aggregate
principal amount of Securities of this series. Securities of this series
acquired or redeemed by the Company otherwise than through [if applicable,
insert -- mandatory] sinking fund payments may be credited against subsequent
[if applicable, insert -- mandatory] sinking fund payments otherwise required
to
be made [if applicable, insert -- , in the inverse order in which they become
due].]
[If
the
Security is subject to redemption of any kind, insert -- In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in
the
name of the Holder hereof upon the cancellation hereof.]
[If
the
Security is subject to conversion, insert - Subject to the provisions of the
Indenture, each Holder has the right to convert the principal amount of this
Security into fully paid and nonassessable shares of Common Stock of the Company
at the initial conversion price per share of Common Stock of $_____ (or $_____
in principal amount of Securities for each such share of Common Stock), or
at
the adjusted conversion price then in effect, if adjustment has been made as
provided in the Indenture, upon surrender of the Security to the Conversion
Agent, together with a fully executed notice in substantially the form attached
hereto and, if required by the Indenture, an amount equal to accrued interest
payable on this Security.]
16
The
indebtedness evidenced by this Security is, to the extent provided in the
Indenture, subordinate and subject in right of payment to the prior payment
in
full of all Senior Debt of the Company, and this Security is issued subject
to
the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee his attorney-in-fact for any and all
such
purposes.
[If
applicable, insert -- As provided in the Indenture and subject to certain
limitations therein set forth, the obligations of the Company under this
Security are guaranteed on a senior subordinated basis pursuant to the
Subsidiary Guarantees endorsed hereon. The Indenture provides that a Subsidiary
Guarantor shall be released from its Subsidiary Guarantee upon compliance with
certain conditions.]
[If
applicable, insert -- The Indenture contains provisions for Defeasance at any
time of [the entire indebtedness of this Security] [or] [certain restrictive
covenants and Events of Default with respect to this Security] [, in each case]
upon compliance with certain conditions set forth in the
Indenture.]
[If
the
Security is not an Original Issue Discount Security, insert -- If an Event
of
Default with respect to Securities of this series shall occur and be continuing,
the principal of the Securities of this series may be declared due and payable
in the manner and with the effect provided in the Indenture.]
[If
the
Security is an Original Issue Discount Security, insert -- If an Event of
Default with respect to Securities of this series shall occur and be continuing,
an amount of principal of the Securities of this series may be declared due
and
payable in the manner and with the effect provided in the Indenture. Such amount
shall be equal to -- insert formula for determining the amount. Upon payment
(i)
of the amount of principal so declared due and payable and (ii) of interest
on
any overdue principal, premium and interest (in each case to the extent that
the
payment of such interest shall be legally enforceable), all of the Company's
obligations in respect of the payment of the principal of and premium and
interest, if any, on the Securities of this series shall
terminate.]
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company and
the rights of the Holders of the Securities of each series to be affected under
the Indenture at any time by the Company and the Trustee with the consent of
the
Holders of a majority in principal amount of the Securities at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder
of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
17
As
provided in and subject to the provisions of the Indenture, the Holder of this
Security shall not have the right to institute any proceeding with respect
to
the Indenture or for the appointment of a receiver or trustee or for any other
remedy thereunder, unless such Holder shall have previously given the Trustee
written notice of a continuing Event of Default with respect to the Securities
of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount
of
Securities of this series at the time Outstanding a direction inconsistent
with
such request, and shall have failed to institute any such proceeding, for 60
days after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to any suit instituted by the Holder of this Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No
reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and any premium and interest on
this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registrable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Company in any place where the principal of and any premium and interest
on this Security are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed by, the Holder hereof or his attorney duly authorized
in
writing, and thereupon one or more new Securities of this series and of like
tenor, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The
Securities of this series are issuable only in registered form without coupons
in denominations of $ ______ and any integral multiple thereof. As provided
in
the Indenture and subject to certain limitations therein set forth, Securities
of this series are exchangeable for a like aggregate principal amount of
Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior
to
due presentment of this Security for registration of transfer, the Company,
the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
All
terms
used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
18
|
SECTION
204.
|
Form
of Subsidiary Guarantee.
|
SUBSIDIARY
GUARANTEE
For
value
received, each of the Subsidiary Guarantors named (or deemed herein to be named)
below hereby jointly and severally fully and unconditionally guarantees to
the
Holder of the Security upon which this Subsidiary Guarantee is endorsed, and
to
the Trustee on behalf of such Holder, the due and punctual payment of the
principal of (and premium, if any) and interest on such Security when and as
the
same shall become due and payable, whether at the Stated Maturity, by
acceleration, call for redemption, offer to purchase or otherwise, according
to
the terms thereof and of the Indenture referred to therein and to cover all
the
rights of the Trustee under Section 607. In case of the failure of the Company
punctually to make any such payment, each of the Subsidiary Guarantors hereby
jointly and severally agrees to cause such payment to be made punctually when
and as the same shall become due and payable, whether at the Stated Maturity
or
by acceleration, call for redemption, offer to purchase or otherwise, and as
if
such payment were made by the Company.
Each
of
the Subsidiary Guarantors hereby jointly and severally agrees that its
obligations hereunder shall be absolute and unconditional, irrespective of,
and
shall be unaffected by, the validity, regularity or enforceability of such
Security or the Indenture, the absence of any action to enforce the same or
any
release, amendment, waiver or indulgence granted to the Company or any other
guarantor, or any consent to departure from any requirement of any other
guarantee of all or of any of the Securities of this series, or any other
circumstances which might otherwise constitute a legal or equitable discharge
or
defense of a surety or guarantor; provided, however, that, notwithstanding
the
foregoing, no such release, amendment, waiver or indulgence shall, without
the
consent of such Subsidiary Guarantor, increase the principal amount of such
Security, or increase the interest rate thereon, or alter the Stated Maturity
thereof. Each of the Subsidiary Guarantors hereby waives the benefits of
diligence, presentment, demand of payment, any requirement that the Trustee
or
any of the Holders protect, secure, perfect or insure any security interest
in
or other lien on any property subject thereto or exhaust any right or take
any
action against the Company or any other Person or any collateral, filing of
claims with a court in the event of insolvency or bankruptcy of the Company,
any
right to require a proceeding first against the Company, protest or notice
with
respect to such Security or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Subsidiary Guarantee will not be discharged
except by complete performance of the obligations contained in such Security
and
in this Subsidiary Guarantee. Each Subsidiary Guarantor agrees that if, after
the occurrence and during the continuance of an Event of Default with respect
to
Securities of this series, the Trustee or any of the Holders are prevented
by
applicable law from exercising their respective rights to accelerate the
maturity of the Securities of this series, to collect interest on the Securities
of this series, or to enforce or exercise any other right or remedy with respect
to the Securities of this series, such Subsidiary Guarantor agrees to pay to
the
Trustee for the account of the Holders, upon demand therefor, the amount that
would otherwise have been due and payable had such rights and remedies been
permitted to be exercised by the Trustee or any of the Holders.
The
indebtedness of each Subsidiary Guarantor evidenced by this Subsidiary Guarantee
is, to the extent provided in the Indenture, subordinate in right of payment
to
the prior payment in full of all Senior Debt of such Subsidiary Guarantor,
and
the Subsidiary Guarantee of each Subsidiary Guarantor is issued subject to
the
provisions of the Indenture with respect thereto.
19
No
reference herein to the Indenture and no provision of this Subsidiary Guarantee
or of the Indenture shall alter or impair the Subsidiary Guarantee of any
Subsidiary Guarantor, which is absolute and unconditional, of the due and
punctual payment of the principal (and premium, if any) and interest on the
Security upon which this Subsidiary Guarantee is endorsed.
Each
Subsidiary Guarantor shall be subrogated to all rights of the Holder of this
Security against the Company in respect of any amounts paid by such Subsidiary
Guarantor on account of this Security pursuant to the provisions of its
Subsidiary Guarantee or the Indenture; provided, however, that such Subsidiary
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 (and
premium, if any) and interest on this Security and all other Securities of
this
series issued under the Indenture shall have been paid in full.
This
Subsidiary Guarantee shall remain in full force and effect and continue to
be
effective should any petition be filed by or against the Company for liquidation
or reorganization, should the Company become insolvent or make an assignment
for
the benefit of creditors or should a receiver or trustee be appointed for all
or
any part of the Company's assets, and shall, to the fullest extent permitted
by
law, continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Securities of this series is, pursuant
to
applicable law, rescinded or reduced in amount, or must otherwise be restored
or
returned by any Holder of the Securities of this series, whether as a "voidable
preference," "fraudulent transfer," or otherwise, all as though such payment
or
performance had not been made. In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Securities of this
series shall, to the fullest extent permitted by law, be reinstated and deemed
reduced only by such amount paid and not so rescinded, reduced, restored or
returned.
The
Subsidiary Guarantors or any particular Subsidiary Guarantor shall be released
from this Subsidiary Guarantee upon the terms and subject to certain conditions
provided in the Indenture.
By
delivery to the Trustee of a supplement to the Indenture referred to in the
Security upon which this Subsidiary Guarantee is endorsed in accordance with
the
terms of the Indenture, each Person that becomes a Subsidiary Guarantor after
the date of first issuance of the Securities of this series will be deemed
to
have executed and delivered this Subsidiary Guarantee for the benefit of the
Holder of the Security upon which this Subsidiary Guarantee is endorsed with
the
same effect as if such Subsidiary Guarantor was named below and has executed
and
delivered this Subsidiary Guarantee.
All
terms
used in this Subsidiary Guarantee which are defined in the Indenture shall
have
the meanings assigned to them in such Indenture.
This
Subsidiary Guarantee shall not be valid or obligatory for any purpose until
the
certificate of authentication on the Security upon which this Subsidiary
Guarantee is endorsed shall have been executed by the Trustee under the
Indenture by manual signature.
20
Reference
is made to the Indenture for further provisions with respect to this Subsidiary
Guarantee.
This
Subsidiary Guarantee shall be governed by and construed in accordance with
the
laws of the State of New York.
IN
WITNESS WHEREOF, each of the Subsidiary Guarantors has caused this Subsidiary
Guarantee to be duly executed.
| [Insert Names of Subsidiary Guarantors] | |
| By: ______________________________ | |
| Title: |
Attest:
_________________________
|
SECTION
205.
|
Form
of Legend for Global Securities.
|
Unless
otherwise specified as contemplated by Section 301 for the Securities evidenced
thereby, every Global Security authenticated and delivered hereunder shall
bear
a legend in substantially the following form:
THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY
REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
|
SECTION
206.
|
Form
of Trustee's Certificate of
Authentication.
|
The
Trustee's certificates of authentication shall be in substantially the following
form:
This
is
one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
|
[Trustee's
Name],
|
|
|
As
Trustee
|
|
|
By:
_____________________
|
|
|
Authorized
Officer
|
21
|
SECTION
207.
|
Form
of Conversion Notice.
|
Each
convertible Security shall have attached thereto, or set forth on the reverse
of
the Security, a notice of conversion in substantially the following
form:
Conversion
Notice
To:
Energy XXI (Bermuda) Limited
The
undersigned owner of this Security hereby: (i) irrevocably exercises the option
to convert this Security, or the portion hereof below designated, for shares
of
Common Stock of Energy XXI (Bermuda) Limited in accordance with the terms of
the
Indenture referred to in this Security and (ii) directs that such shares of
Common Stock deliverable upon the conversion, together with any check in payment
for fractional shares and any Security(ies) representing any unconverted
principal amount hereof, be issued and delivered to the registered holder hereof
unless a different name has been indicated below. If shares are to be delivered
registered in the name of a person other than the undersigned, the undersigned
will pay all transfer taxes payable with respect thereto. Any amount required
to
be paid by the undersigned on account of interest accompanies this
Security.
| Dated: ______________________ | …………………………………. |
| Signature |
Fill
in
for registration of shares if to be delivered, and of Securities if to be
issued, otherwise than to and in the name of the registered holder.
………………………………….
| …………………………………. | |
|
Social
Security or other
Taxpayer
Identification Number
|
……………………………………..
(Name)
……………………………………..
(Please
print name and address)
| Principal amount to be converted: (if less than all) | |
|
$………………………………..
|
Signature
Guarantee*
………………………………………..
*Participant
in a recognized Signature Guarantee Medallion Program (or other signature
acceptable to the Trustee).
22
ARTICLE
THREE
THE
SECURITIES
|
SECTION
301.
|
Amount
Unlimited; Issuable in Series.
|
The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The
Securities may be issued in one or more series. There shall be established
in or
pursuant to a Board Resolution and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series,
(1) the
title
of the Securities of the series (which shall distinguish the Securities of
the
series from Securities of any other series);
(2) if
the
Securities of the series will not have the benefit of the Subsidiary Guarantees
of the Subsidiary Guarantors;
(3) any
change to the subordination provisions which applies to the Securities of the
series from those contained in Article Twelve with respect to the Securities
and/or, if applicable, those contained in Article Fourteen with respect to
the
Subsidiary Guarantees, and the definitions of Senior Debt and Designated Senior
Debt which shall apply to the Securities of the series, and, if applicable,
the
Subsidiary Guarantees;
(4) any
limit
upon the aggregate principal amount of the Securities of the series which may
be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Section 304,
305,
306, 906 or 1107 and except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered
hereunder);
(5) the
Person to whom any interest on a Security of the series shall be payable, if
other than the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest;
(6) the
date
or dates on which the principal of any Securities of the series is
payable;
(7) the
rate
or rates at which any Securities of the series shall bear interest, if any,
the
date or dates from which any such interest shall accrue, the Interest Payment
Dates on which any such interest shall be payable and the Regular Record Date
for any such interest payable on any Interest Payment Date;
(8) the
place
or places where the principal of and any premium and interest on any Securities
of the series shall be payable;
23
(9) the
period or periods within which, the price or prices at which and the terms
and
conditions upon which any Securities of the series may be redeemed, in whole
or
in part, at the option of the Company and, if other than by a Board Resolution,
the manner in which any election by the Company to redeem the Securities shall
be evidenced;
(10) the
obligation, if any, of the Company to redeem or purchase any Securities of
the
series pursuant to any sinking fund or analogous provisions or at the option
of
the Holder thereof and the period or periods within which, the price or prices
at which and the terms and conditions upon which any Securities of the series
shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(11) if
other
than denominations of $1,000 and any integral multiple thereof, the
denominations in which any Securities of the series shall be
issuable;
(12) if
the
amount of principal of or any premium or interest on any Securities of the
series may be determined with reference to an index or pursuant to a formula,
the manner in which such amounts shall be determined;
(13) if
other
than the currency of the United States of America, the currency, currencies
or
currency units in which the principal of or any premium or interest on any
Securities of the series shall be payable and the manner of determining the
equivalent thereof in the currency of the United States of America for any
purpose, including for purposes of the definition of "Outstanding" in Section
101;
(14) if
the
principal of or any premium or interest on any Securities of the series is
to be
payable, at the election of the Company or the Holder thereof, in one or more
currencies or currency units other than that or those in which such Securities
are stated to be payable, the currency, currencies or currency units in which
the principal of or any premium or interest on such Securities as to which
such
election is made shall be payable, the periods within which and the terms and
conditions upon which such election is to be made and the amount so payable
(or
the manner in which such amount shall be determined);
(15) if
other
than the entire principal amount thereof, the portion of the principal amount
of
any Securities of the series which shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to Section 502;
(16) if
the
principal amount payable at the Stated Maturity of any Securities of the series
will not be determinable as of any one or more dates prior to the Stated
Maturity, the amount which shall be deemed to be the principal amount of such
Securities as of any such date for any purpose thereunder or hereunder,
including the principal amount thereof which shall be due and payable upon
any
Maturity other than the Stated Maturity or which shall be deemed to be
Outstanding as of any date prior to the Stated Maturity (or, in any such case,
the manner in which such amount deemed to be the principal amount shall be
determined);
24
(17) if
applicable, that the Securities of the series, in whole or any specified part,
shall be defeasible pursuant to Section 1502 or Section 1503 or both such
Sections and, if other than by a Board Resolution, the manner in which any
election by the Company to defease such Securities shall be
evidenced;
(18) if
applicable, that any Securities of the series shall be issuable in whole or
in
part in the form of one or more Global Securities and, in such case, the
respective Depositories for such Global Securities, the form of any legend
or
legends which shall be borne by any such Global Security in addition to or
in
lieu of that set forth in Section 205 and any circumstances in addition to
or in
lieu of those set forth in clause (2) of the last paragraph of Section 305
in
which any such Global Security may be exchanged in whole or in part for
Securities registered, and any transfer of such Global Security in whole or
in
part may be registered, in the name or names of Persons other than the
Depositary for such Global Security or a nominee thereof;
(19) any
addition to or change in the Events of Default which applies to any Securities
of the series and any change in the right of the Trustee or the requisite
Holders of such Securities to declare the principal amount thereof due and
payable pursuant to Section 502;
(20) any
addition to or change in the covenants set forth in Article Ten which applies
to
Securities of the series;
(21) whether
the Securities of the series will be convertible into Common Stock (or cash
in
lieu thereof) and, if so, the terms and conditions upon which such conversion
will be effected; and
(22) any
other
terms of the series (which terms shall not be inconsistent with the provisions
of this Indenture, except as permitted by Section 901(5)).
All
Securities of any one series shall be substantially identical except as to
denomination and except as may otherwise be provided in or pursuant to the
Board
Resolution referred to above and (subject to Section 303) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
If
any of
the terms of the series are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action shall be certified
by
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Officers' Certificate setting forth
the terms of the series.
The
Securities of each series shall have the benefit of the Subsidiary Guarantees
unless the Company elects otherwise upon the establishment of a series pursuant
to this Section 301.
The
Securities shall be subordinated in right of payment to Senior Debt of the
Company as provided in Article Twelve. Each Subsidiary Guarantee shall be
subordinated in right of payment to Senior Debt of the applicable Subsidiary
Guarantor as provided in Article Fourteen.
25
|
SECTION
302.
|
Denominations.
|
The
Securities of each series shall be issuable only in registered form without
coupons and only in such denominations as shall be specified as contemplated
by
Section 301. In the absence of any such specified denomination with respect
to
the Securities of any series, the Securities of such series shall be issuable
in
denominations of $1,000 and any integral multiple thereof.
|
SECTION
303.
|
Execution,
Authentication, Delivery and
Dating.
|
The
Securities shall be executed on behalf of the Company by its Chairman of the
Board of Directors, its Vice Chairman of the Board of Directors, its President
or one of its Vice Presidents. If its corporate seal is reproduced thereon,
then
it shall be attested by its Secretary or one of its Assistant Secretaries.
The
signature of any of these officers on the Securities may be manual or
facsimile.
Securities
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company shall bind the Company, notwithstanding
that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices
at
the date of such Securities.
At
any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Securities of any series executed by the Company and,
if
applicable, having endorsed thereon the Subsidiary Guarantees executed as
provided in Section 1303 by the Subsidiary Guarantors to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities. If the form or terms
of
the Securities of the series have been established by or pursuant to one or
more
Board Resolutions as permitted by Sections 201 and 301, in authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Section 601) shall be fully protected in relying upon, an Opinion
of
Counsel stating,
(1) if
the
form of such Securities has been established by or pursuant to Board Resolution
as permitted by Section 201, that such form has been established in conformity
with the provisions of this Indenture;
(2) if
the
terms of such Securities have been established by or pursuant to Board
Resolution as permitted by Section 301, that such terms have been established
in
conformity with the provisions of this Indenture; and
(3) that
such
Securities, when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion
of
Counsel, will constitute valid and legally binding obligations of the Company,
and, if applicable, the Subsidiary Guarantees endorsed thereon will constitute
valid and legally binding obligations of the Subsidiary Guarantors, enforceable
in accordance with their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
26
If
such
form or terms have been so established, the Trustee shall not be required to
authenticate such Securities if the issue of such Securities pursuant to this
Indenture will affect the Trustee's own rights, duties or immunities under
the
Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Notwithstanding
the provisions of Section 301 and of the preceding paragraph, if all Securities
of a series are not to be originally issued at one time, it shall not be
necessary to deliver the Officers' Certificate otherwise required pursuant
to
Section 301 or the Company Order and Opinion of Counsel otherwise required
pursuant to such preceding paragraph at or prior to the authentication of each
Security of such series if such documents are delivered at or prior to the
authentication upon original issuance of the first Security of such series
to be
issued.
Each
Security shall be dated the date of its authentication.
No
Security or Subsidiary Guarantee shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such
Security a certificate of authentication substantially in the form provided
for
herein executed by the Trustee by manual signature, and such certificate upon
any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
309, for all purposes of this Indenture such Security shall be deemed never
to
have been authenticated and delivered hereunder and shall never be entitled
to
the benefits of this Indenture.
|
SECTION
304.
|
Temporary
Securities.
|
Pending
the preparation of definitive Securities of any series, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities and, if applicable, having endorsed thereon the
Subsidiary Guarantees in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities and, if applicable, Subsidiary Guarantees may
determine, as evidenced by their execution of such Securities and Subsidiary
Guarantees.
If
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After
the
preparation of definitive Securities of such series, the temporary Securities
of
such series shall be exchangeable for definitive Securities of such series
upon
surrender of the temporary Securities of such series at the office or agency
of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of
any
series, the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor one or more definitive Securities of the same series,
of
any authorized denominations and of like tenor and aggregate principal amount
and, if applicable, having endorsed thereon Subsidiary Guarantees executed
by
the Subsidiary Guarantors. Until so exchanged, the temporary Securities of
any
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series and tenor.
27
|
SECTION
305.
|
Registration,
Registration of Transfer and
Exchange.
|
The
Company shall cause to be kept at the Corporate Trust Office of the Trustee
a
register (the register maintained in such office and in any other office or
agency of the Company in a Place of Payment being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The Trustee is hereby appointed
"Security Registrar" for the purpose of registering Securities and transfers
of
Securities as herein provided.
Upon
surrender for registration of transfer of any Security of a series at the office
or agency of the Company in a Place of Payment for that series, the Company
shall execute, if applicable the Subsidiary Guarantors shall execute the
Subsidiary Guarantees endorsed thereon and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of the same series, of any authorized denominations and of like
tenor and aggregate principal amount.
At
the
option of the Holder, Securities of any series may be exchanged for other
Securities of the same series, of any authorized denominations and of like
tenor
and aggregate principal amount, upon surrender of the Securities to be exchanged
at such office or agency. Whenever any Securities are so surrendered for
exchange, the Company shall execute, if applicable the Subsidiary Guarantors
shall execute the Subsidiary Guarantees endorsed thereon and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange
is
entitled to receive.
All
Securities and, if applicable, the Subsidiary Guarantees endorsed thereon issued
upon any registration of transfer or exchange of Securities shall be the valid
obligations of the Company and, if applicable, the respective Subsidiary
Guarantors, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities and Subsidiaries Guarantees surrendered upon
such registration of transfer or exchange.
Every
Security presented or surrendered for registration of transfer or for exchange
shall (if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed, by the Holder thereof or
his
attorney duly authorized in writing.
No
service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906, 1107 or otherwise not involving any
transfer.
28
If
the
Securities of any series (or of any series and specified tenor) are to be
redeemed in part, the Company shall not be required (A) to issue, register
the
transfer of or exchange any Securities of that series (or of that series and
specified tenor, as the case may be) during a period beginning at the opening
of
business 15 days before the day of the mailing of a notice of redemption of
any
such Securities selected for redemption under Section 1103 and ending at the
close of business on the day of such mailing, or (B) to register the transfer
of
or exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
The
provisions of clauses (1), (2), (3) and (4) below shall apply only to Global
Securities:
(1) Each
Global Security authenticated under this Indenture shall be registered in the
name of the Depositary designated for such Global Security or a nominee thereof
and delivered to such Depositary or a nominee thereof or custodian therefor,
and
each such Global Security shall constitute a single Security for all purposes
of
this Indenture.
(2) Notwithstanding
any other provision in this Indenture, no Global Security may be exchanged
in
whole or in part for Securities registered, and no transfer of a Global Security
in whole or in part may be registered, in the name of any Person other than
the
Depositary for such Global Security or a nominee thereof unless (A) such
Depositary (i) has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security or (ii) has ceased to be a
clearing agency registered under the Exchange Act, and in either case the
Company fails to appoint a successor Depositary within 90 days, (B) there shall
have occurred and be continuing an Event of Default with respect to such Global
Security and the Depositary shall have notified the Trustee of its decision
to
exchange such Global Security for Securities in certificated form or (C) there
shall exist such circumstances, if any, in addition to or in lieu of the
foregoing as have been specified for this purpose as contemplated by Section
301.
(3) Subject
to clause (2) above, any exchange of a Global Security for other Securities
may
be made in whole or in part, and all Securities issued in exchange for a Global
Security or any portion thereof shall be registered in such names as the
Depositary for such Global Security shall direct.
(4) Every
Security authenticated and delivered upon registration of transfer of, or in
exchange for or in lieu of, a Global Security or any portion thereof, whether
pursuant to this Section, Section 304, 306, 906 or 1107 or otherwise, shall
be
authenticated and delivered in the form of, and shall be, a Global Security,
unless such Security is registered in the name of a Person other than the
Depositary for such Global Security or a nominee thereof.
|
SECTION
306.
|
Mutilated,
Destroyed, Lost and Stolen
Securities.
|
If
any
mutilated Security is surrendered to the Trustee, the Company shall execute,
if
applicable the Subsidiary Guarantors shall execute the Subsidiary Guarantees
endorsed thereon and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
29
If
there
shall be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity as may be required by them to save each of them and any
agent of either of them harmless from any loss that any of them may suffer
if a
Security is replaced, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute, if applicable the Subsidiary Guarantors shall execute
the
Subsidiary Guarantees endorsed thereon and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In
case
any such mutilated, destroyed, lost or stolen Security has become or is about
to
become due and payable or is to be converted, the Company in its discretion
may,
instead of issuing a new Security, pay or authorize the conversion of such
Security (without surrender thereof save in the case of a mutilated
Security).
Upon
the
issuance of any new Security under this Section, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
Every
new
Security of any series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security, and, if applicable, the Subsidiary Guarantees endorsed
thereon, shall constitute an original additional contractual obligation of
the
Company and, if applicable, the respective Subsidiary Guarantors, 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 that series duly issued
hereunder.
The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement, payment
or conversion of mutilated, destroyed, lost or stolen Securities.
|
SECTION
307.
|
Payment
of Interest; Interest Rights
Preserved.
|
Except
as
otherwise provided as contemplated by Section 301 with respect to any series
of
Securities, interest on any Security which is payable, and is punctually paid
or
duly provided for, on any Interest Payment Date shall be paid to the Person
in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
interest.
Any
interest on any Security of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on
the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case,
as
provided in clause (1) or (2) below:
30
(1) The
Company may elect to make payment of any Defaulted Interest to the Persons
in
whose names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date
for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of such series and
the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed
to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed payment
of
such Defaulted Interest and the Special Record Date therefor to be given to
each
Holder of Securities of such series in the manner set forth in Section 106,
not
less than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and shall
no
longer be payable pursuant to the following clause (2).
(2) The
Company may make payment of any Defaulted Interest on the Securities of any
series in any other lawful manner not inconsistent with the requirements of
any
securities exchange on which such Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the Company
to
the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject
to the foregoing provisions of this Section, each Security delivered under
this
Indenture upon registration of transfer of or in exchange for or in lieu of
any
other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
|
SECTION
308.
|
Persons
Deemed Owners.
|
Prior
to
due presentment of a Security for registration of transfer, the Company, the
Subsidiary Guarantors, the Trustee and any agent of the Company, the Subsidiary
Guarantors, or the Trustee may treat the Person in whose name such Security
is
registered as the owner of such Security for the purpose of receiving payment
of
principal of and any premium and (subject to Section 307) any interest on such
Security and for all other purposes whatsoever, whether or not such Security
be
overdue, and neither the Company, any Subsidiary Guarantor, the Trustee nor
any
agent of the Company, any Subsidiary Guarantor, or the Trustee shall be affected
by notice to the contrary.
31
|
SECTION
309.
|
Cancellation.
|
All
Securities surrendered for payment, redemption, purchase, registration of
transfer or exchange or for credit against any sinking fund payment shall,
if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver
to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
|
SECTION
310.
|
Computation
of Interest.
|
Except
as
otherwise specified as contemplated by Section 301 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of
a
360-day year of twelve 30-day months.
ARTICLE
FOUR
SATISFACTION
AND DISCHARGE
|
SECTION
401.
|
Satisfaction
and Discharge of Indenture.
|
This
Indenture shall upon Company Request cease to be of further effect with respect
to the Securities of any series, and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(1) either
(A) all
Securities of such 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 Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all
such
Securities of such series not theretofore delivered to the Trustee for
cancellation
(i) have
become due and payable, or
32
(ii) will
become due and payable at their Stated Maturity within one year, or
(iii) are
to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name,
and
at the expense, of the Company,
and
the
Company or, if applicable, a Subsidiary Guarantor, in the case of (i), (ii)
or
(iii) above, has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for the purpose money in an amount sufficient,
without consideration of any reinvestment of interest, to pay and discharge
the
entire indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal and any premium and interest to the date of
such
deposit (in the case of Securities which have become due and payable) or to
the
Stated Maturity or Redemption Date, as the case may be;
(2) the
Company or a Subsidiary Guarantor has paid or caused to be paid all other sums
payable hereunder by the Company and the Subsidiary Guarantors with respect
to
the Securities of such series; and
(3) the
Company has delivered to the Trustee an Officers' Certificate and an Opinion
of
Counsel, each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with.
Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under Section 607, any surviving rights of conversion, the
obligations of the Trustee to any Authenticating Agent under Section 614 and,
if
money shall have been deposited with the Trustee pursuant to subclause (B)
of
clause (1) of this Section, the obligations of the Trustee under Section 402
and
the last paragraph of Section 1003 shall survive.
|
SECTION
402.
|
Application
of Trust Money.
|
Subject
to the provisions of the last paragraph of Section 1003, all money deposited
with the Trustee pursuant to Section 401 shall be held in trust and applied
by
it, in accordance with the provisions of the Securities and this Indenture,
to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and any premium and interest for whose
payment such money has been deposited with the Trustee.
33
ARTICLE
FIVE
REMEDIES
|
SECTION
501.
|
Events
of Default.
|
"Event
of
Default", wherever used herein with respect to Securities of any series, means
any one of the following events (whatever the reason for such Event of Default
and whether it shall be occasioned by the provisions of Article Twelve or be
voluntary or involuntary or be effected by operation of law or pursuant to
any
judgment, decree or order of any court or any order, rule or regulation of
any
administrative or governmental body):
(1) default
in the payment of 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 any premium on any Security of that series
at its Maturity; or
(3) default
in the deposit of any sinking fund payment, when and as due by the terms of
a
Security of that series; or
(4) default
in the performance, or breach, of any covenant of the Company or, if the
Subsidiary Guarantors have issued Subsidiary Guarantees with respect to the
Securities of such series, any Subsidiary Guarantor in Article Eight of this
Indenture; or
(5) default
in the performance, or breach, of any covenant or warranty of the Company or,
if
the Subsidiary Guarantors have issued Subsidiary Guarantees with respect to
the
Securities of such series, any Subsidiary Guarantor in this Indenture (other
than a covenant or warranty a default in whose performance or whose breach
is
elsewhere in this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of Securities other
than that series), and continuance of such default or breach for a period of
60
days after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25%
in principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(6) debt
of
the Company, any Significant Subsidiary or, if the Subsidiary Guarantors have
issued Subsidiary Guarantees with respect to the Securities of such series,
any
Subsidiary Guarantor is not paid within any applicable grace period after final
maturity or is accelerated by the holders thereof because of a default and
the
total amount of such Indebtedness unpaid or accelerated exceeds
$20.0 million, or its foreign currency equivalent at the time;
or
(7) any
judgment or decree for the payment of money in excess of $20.0 million or
its foreign currency equivalent at the time it is entered against the Company,
any Significant Subsidiary or, if the Subsidiary Guarantors have issued
Subsidiary Guarantees with respect to the Securities of such series, any
Subsidiary Guarantor, remains outstanding for a period of 60 consecutive days
following the entry of such judgment or decree and is not discharged, waived
or
the execution thereof stayed; or
34
(8) the
entry
by a court having jurisdiction in the premises of (A) a decree or order for
relief in respect of the Company, any Significant Subsidiary or, if the
Subsidiary Guarantors have issued Subsidiary Guarantees with respect to the
Securities of such series, any Subsidiary Guarantor in an involuntary case
or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company, any Significant Subsidiary or any such Subsidiary Guarantor a bankrupt
or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company, any
Significant Subsidiary or any such Subsidiary Guarantor under any applicable
Federal or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company, any Significant
Subsidiary or any such Subsidiary Guarantor or of any substantial part of its
or
their property, or ordering the winding up or liquidation of its or their
affairs, and the continuance of any such decree or order for relief or any
such
other decree or order unstayed and in effect for a period of 60 consecutive
days; or
(9) the
commencement by the Company, any Significant Subsidiary or, if the Subsidiary
Guarantors have issued Subsidiary Guarantees with respect to the Securities
of
such series, any Subsidiary Guarantor of a voluntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt
or
insolvent, or the consent by it or them to the entry of a decree or order for
relief in respect of the Company, any Significant Subsidiary or any such
Subsidiary Guarantor in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law
or
to the commencement of any bankruptcy or insolvency case or proceeding against
it or them, or the filing by it or them of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State law,
or
the consent by it or them to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company, any Significant
Subsidiary or any such Subsidiary Guarantor or of any substantial part of its
or
their property, or the making by it or them of an assignment for the benefit
of
creditors, or the admission by it or them in writing of its or their inability
to pay its or their debts generally as they become due, or the taking of
corporate action by the Company, any Significant Subsidiary or any such
Subsidiary Guarantor in furtherance of any such action; or
(10) in
the
event the Subsidiary Guarantors have issued Subsidiary Guarantees with respect
to the Securities of such series, the Subsidiary Guarantee of any Subsidiary
Guarantor is held by a final non-appealable order or judgment of a court of
competent jurisdiction to be unenforceable or invalid or ceases for any reason
to be in full force and effect (other than in accordance with the terms of
this
Indenture) or any Subsidiary Guarantor or any Person acting on behalf of any
Subsidiary Guarantor denies or disaffirms such Subsidiary Guarantor's
obligations under its Subsidiary Guarantee (other than by reason of a release
of
such Subsidiary Guarantor from its Subsidiary Guarantee in accordance with
the
terms of this Indenture); or
35
(11) any
other
Event of Default provided with respect to Securities of that
series.
|
SECTION
502.
|
Acceleration
of Maturity; Rescission and
Annulment.
|
If
an
Event of Default (other than an Event of Default with respect to the Company
specified in Section 501(8) or 501(9)) with respect to Securities of any series
at the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal amount of all
the Securities of that series (or, if any Securities of that series are Original
Issue Discount Securities, such portion of the principal amount of such
Securities as may be specified by the terms thereof) to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default with
respect to the Company specified in Section 501(8) or 501 (9) with respect
to
Securities of any series at the time Outstanding occurs, the principal amount
of
all the Securities of that series (or, if any Securities of that series are
Original Issue Discount Securities, such portion of the principal amount of
such
Securities as may be specified by the terms thereof) shall automatically, and
without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.
At
any
time after such a declaration of acceleration with respect to Securities of
any
series has been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter in this Article provided,
the Holders of a majority in principal amount of the Outstanding Securities
of
that series, by written notice to the Company and the Trustee, may rescind
and
annul such declaration and its consequences if
(1) the
Company or, if applicable, any Subsidiary Guarantor has paid or deposited with
the Trustee a sum sufficient to pay
(A) all
overdue interest on all Securities of that series,
(B) the
principal of (and premium, if any, on) any Securities of that series which
have
become due otherwise than by such declaration of acceleration and any interest
thereon at the rate or rates prescribed therefor in such
Securities,
(C) to
the
extent that payment of such interest is lawful, interest upon overdue interest
at the rate or rates prescribed therefor in such Securities, and
(D) all
sums
paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel;
36
and
(2) all
Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which has become
due
solely by such declaration of 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.
|
The
Company covenants that if
(1) default
is made in the payment of any interest on any Security when such interest
becomes due and payable and such default continues for a period of 30 days,
or
(2) default
is made in the payment of the principal of (or premium, if any, on) any Security
at the Maturity thereof,
the
Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances
of
the Trustee, its agents and counsel.
If
an
Event of Default with respect to Securities of any series occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its
rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of
any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
|
SECTION
504.
|
Trustee
May File Proofs of Claim.
|
In
case
of any judicial proceeding relative to the Company, any Subsidiary Guarantor
or
any other obligor upon the Securities, or the property or creditors of the
Company, any Subsidiary Guarantor or any other obligor upon the Securities,
the
Trustee shall be entitled and empowered, by intervention in such proceeding
or
otherwise, to take any and all actions authorized under the Trust Indenture
Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
37
No
provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of
reorganization, arrangement, adjustment or composition affecting the Securities
or any Subsidiary Guarantee or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding; provided, however, that the Trustee may, on behalf of the Holders,
vote for the election of a trustee in bankruptcy or similar official and be
a
member of a creditors' or other similar committee.
|
SECTION
505.
|
Trustee
May Enforce Claims Without Possession of
Securities.
|
All
rights of action and claims under this Indenture or the Securities or any
Subsidiary Guarantee may be prosecuted and enforced by the Trustee without
the
possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
|
SECTION
506.
|
Application
of Money Collected.
|
Any
money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of
the
distribution of such money on account of principal or any premium or interest,
upon presentation of the Securities and the notation thereon of the payment
if
only partially paid and upon surrender thereof if fully paid:
FIRST:
To
the payment of all amounts due the Trustee under Section 607;
SECOND:
Subject to Article Twelve and Article Fourteen, to the payment of the amounts
then due and unpaid for principal of and any premium and interest on the
Securities in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to
the
amounts due and payable on such Securities for principal and any premium and
interest, respectively; and
THIRD:
The balance, if any, to the Company or to such other Person as a court of
competent jurisdiction shall direct.
|
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 the Securities of that series;
38
(2) the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(3) such
Holder or Holders have offered to the Trustee reasonable security or indemnity
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
security or 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 that series;
it
being
understood and intended that no one or more of such Holders shall have any
right
in any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or preference over any
other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all of such
Holders.
|
SECTION
508.
|
Unconditional
Right of Holders to Receive Principal, Premium and
Interest.
|
Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have
the
right, which is absolute and unconditional, to receive payment of the principal
of and any premium 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 offer by the Company to purchase the Securities pursuant to the
terms of this Indenture, on the Redemption Date or purchase date, as applicable)
and, if applicable, to convert such Security in accordance with its terms,
and
to institute suit for the enforcement of any such right, and such rights shall
not be impaired without the consent of such Holder.
|
SECTION
509.
|
Restoration
of Rights and Remedies.
|
If
the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Subsidiary Guarantors, the Trustee and the Holders
shall be restored severally and respectively to their former positions hereunder
and thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
|
SECTION
510.
|
Rights
and Remedies Cumulative.
|
Except
as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 306,
no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
39
|
SECTION
511.
|
Delay
or Omission Not Waiver.
|
No
delay
or omission of the Trustee or of any Holder of any Securities to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may
be.
|
SECTION
512.
|
Control
by Holders.
|
The
Holders of a majority in principal amount of the Outstanding Securities of
any
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred on the Trustee, with respect to the Securities of such
series, provided that
(1) such
direction shall not be in conflict with any rule of law or with this Indenture,
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
(1) in
the
payment of the principal of or any premium or interest on any Security of such
series (including any Security which is required to have been purchased by
the
Company pursuant to an offer to purchase by the Company made pursuant to the
terms of this Indenture), 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.
40
|
SECTION
514.
|
Undertaking
for Costs.
|
In
any
suit for the enforcement of any right or remedy under this Indenture, or in
any
suit against the Trustee for any action taken, suffered or omitted by it as
Trustee, a court may require any party litigant in such suit to file an
undertaking to pay the costs of such suit, and may assess costs against any
such
party litigant, in the manner and to the extent provided in the Trust Indenture
Act; provided, however, that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to
make
such an assessment in any suit instituted by the Company or any Subsidiary
Guarantor.
|
SECTION
515.
|
Waiver
of Usury, Stay or Extension Laws.
|
Each
of
the Company and the Subsidiary Guarantors 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 usury, 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
Company and the Subsidiary Guarantors (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.
|
The
duties and responsibilities of the Trustee shall be as expressly set forth
in
this Indenture and as provided by the Trust Indenture Act. Notwithstanding
the
foregoing, no provision of this Indenture shall require the Trustee to expend
or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of
such
funds or adequate indemnity against such risk or liability is not reasonably
assured to it. Whether or not therein expressly so provided, every provision
of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
|
SECTION
602.
|
Notice
of Defaults.
|
If
a
default occurs hereunder with respect to Securities of any series, the Trustee
shall give the Holders of Securities of such series notice of such default
as
and to the extent provided by the Trust Indenture Act; provided, however, that
in the case of any default of the character specified in Section 501(5) with
respect to Securities of such series, no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to Securities
of
such series.
41
|
SECTION
603.
|
Certain
Rights of Trustee.
|
Subject
to the provisions of Section 601:
(1) the
Trustee may rely and shall be protected in acting or refraining from acting
upon
any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine and to
have
been signed or presented by the proper party or parties;
(2) any
request or direction of the Company mentioned herein shall be sufficiently
evidenced by a Company Request or Company Order, and any resolution of the
Board
of Directors shall be sufficiently evidenced by a Board Resolution;
(3) 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;
(4) the
Trustee may consult with counsel and the written advice of such counsel or
any
Opinion of Counsel shall be full and complete authorization and protection
in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(5) the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(6) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney;
and
(7) 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 and the Subsidiary Guarantees,
except the Trustee's certificates of authentication, shall be taken as the
statements of the Company or the Subsidiary Guarantors, as the case may be,
and
neither the Trustee nor any Authenticating Agent assumes any responsibility
for
their correctness. The Trustee makes no representations as to the validity
or
sufficiency of this Indenture or of the Securities or the Subsidiary Guarantees
endorsed thereon. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
42
|
SECTION
605.
|
May
Hold Securities.
|
The
Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar
or
any other agent of the Company or any Subsidiary Guarantor, in its individual
or
any other capacity, may become the owner or pledgee of Securities and, subject
to Sections 608 and 613, may otherwise deal with the Company and any Subsidiary
Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, 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 Company or any Subsidiary Guarantor, as the case may be.
|
SECTION
607.
|
Compensation
and Reimbursement.
|
The
Company and each Subsidiary Guarantor jointly and severally agree
(1) to
pay to
the Trustee from time to time reasonable compensation for all services rendered
by it hereunder (which compensation shall not be limited by any provision of
law
in regard to the compensation of a trustee of an express trust);
(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 its negligence or bad faith; and
(3) to
indemnify the Trustee for, and to hold it harmless against, any loss, liability
or expense incurred without negligence or bad faith on its part, arising out
of
or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its
powers or duties hereunder.
|
SECTION
608.
|
Conflicting
Interests.
|
If
the
Trustee has or shall acquire a conflicting interest within the meaning of the
Trust Indenture Act, the Trustee shall either eliminate such interest or resign,
to the extent and in the manner provided by, and subject to the provisions
of,
the Trust Indenture Act and this Indenture. To the extent permitted by such
Act,
the Trustee shall not be deemed to have a conflicting interest by virtue of
being a trustee under this Indenture with respect to Securities of more than
one
series.
43
|
SECTION
609.
|
Corporate
Trustee Required; Eligibility.
|
There
shall at all times be one (and only one) Trustee hereunder with respect to
the
Securities of each series, which may be Trustee hereunder for Securities of
one
or more other series. Each Trustee shall be a Person that is eligible pursuant
to the Trust Indenture Act to act as such, and has a combined capital and
surplus of at least $50,000,000. If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section and
to
the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus
as
set forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities of any series shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
|
SECTION
610.
|
Resignation
and Removal; Appointment of
Successor.
|
No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 611.
The
Trustee may resign at any time with respect to the Securities of one or more
series by giving written notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 611 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
The
Trustee may be removed at any time with respect to the Securities of any series
by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series, delivered to the Trustee and to the
Company.
If
at any
time:
(1) the
Trustee shall fail to comply with Section 608 after written request therefor
by
the Company or by any Holder who has been a bona fide Holder of a Security
for
at least six months, or
(2) the
Trustee shall cease to be eligible under Section 609 and shall fail to resign
after written request therefor by the Company or by any such Holder,
or
(3) the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed
or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
44
then,
in
any such case, (A) the Company by a Board Resolution may remove the Trustee
with
respect to all Securities, or (B) subject to Section 514, any Holder who has
been a bona fide Holder of a Security for at least six months may, on behalf
of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee with respect to all Securities
and
the appointment of a successor Trustee or Trustees.
If
the
Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, with respect to the
Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee
may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 611. If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment in accordance
with the applicable requirements of Section 611, become the successor
Trustee with respect to the Securities of such series and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction
for
the appointment of a successor Trustee with respect to the Securities of such
series.
The
Company shall give notice of each resignation and each removal of the Trustee
with respect to the Securities of any series and each appointment of a successor
Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 106. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
|
SECTION
611.
|
Acceptance
of Appointment by Successor.
|
In
case
of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company, the Subsidiary Guarantors and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
the
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring
to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
45
In
case
of the appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the Subsidiary
Guarantors, the retiring Trustee and each successor Trustee with respect to
the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to
all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as
to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of
a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery
of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
Upon
request of any such successor Trustee, the Company and the Subsidiary Guarantors
shall execute any and all instruments for more fully and certainly vesting
in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may
be.
No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article.
|
SECTION
612.
|
Merger,
Conversion, Consolidation or Succession to
Business.
|
Any
Person into which the Trustee may be merged or converted or with which it may
be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding
to
all or substantially all the corporate trust business of the Trustee, shall
be
the successor of the Trustee hereunder, provided such Person 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. As soon
as practicable, the successor Trustee shall mail a notice of its succession
to
the Company and the Holders of the Securities then Outstanding. 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.
46
|
SECTION
613.
|
Preferential
Collection of Claims Against Company and Subsidiary
Guarantors.
|
If
and
when the Trustee shall be or become a creditor of the Company, any Subsidiary
Guarantor or any other obligor upon the Securities, the Trustee shall be subject
to the provisions of the Trust Indenture Act regarding the collection of claims
against the Company, such Subsidiary Guarantor or any such other
obligor.
|
SECTION
614.
|
Appointment
of Authenticating Agent.
|
The
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon original issue
and
upon exchange, registration of transfer, conversion 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 be
acceptable to the Company and shall at all times be a Person 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 Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus
as
set forth in its most recent report of condition so published. If at any time
an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any
Person into which an Authenticating Agent may be merged or converted or with
which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any Person succeeding to the corporate agency or corporate trust business
of
an Authenticating Agent, shall continue to be an Authenticating Agent, provided
such Person 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 to the Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 106 to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under
the
provisions of this Section.
47
The
Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section, and the Trustee shall be
entitled to be reimbursed for such payments, subject to the provisions of
Section 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 alternative certificate of
authentication in the following form:
This
is
one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
|
[Trustee's
Name],
As
Trustee
|
|
| By: ______________________, | |
|
As
Authenticating Agent
|
|
| By: ______________________, | |
|
Authorized
Officer
|
ARTICLE
SEVEN
HOLDERS'
LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
SECTION
701.
|
Company
to Furnish Trustee Names and Addresses of
Holders.
|
The
Company will furnish or cause to be furnished to the Trustee with respect to
the
Securities of each series:
(1) not
more
than 10 days after each record date with respect to the payment of interest,
if
any, a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Securities of such series as of such record
date, and
48
(2) at
such
other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is
furnished;
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
Holders.
|
The
Trustee shall preserve, in as current a form as is reasonably practicable,
the
names and addresses of Holders contained in the most recent list furnished
to
the Trustee as provided in Section 701 and the names and addresses of Holders
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.
The
rights of Holders to communicate with other Holders with respect to their rights
under this Indenture or under the Securities, and the corresponding rights
and
privileges of the Trustee, shall be as provided by the Trust Indenture
Act.
Every
Holder of Securities, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company, the Subsidiary Guarantors nor the
Trustee nor any agent of any of them shall be held accountable by reason of
any
disclosure of information as to names and addresses of Holders made pursuant
to
the Trust Indenture Act.
|
SECTION
703.
|
Reports
by Trustee.
|
The
Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.
A
copy of
each such report shall, at the time of such transmission to Holders, be filed
by
the Trustee with each stock exchange upon which any Securities are listed,
with
the Commission and with the Company and with the Subsidiary Guarantors. The
Company will notify the Trustee when any Securities are listed on any stock
exchange.
|
SECTION
704.
|
Reports
by Company and Subsidiary
Guarantors.
|
The
Company and each of the Subsidiary Guarantors shall file with the Trustee and
the Commission, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant to such Act;
provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall
be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
49
ARTICLE
EIGHT
CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE
|
SECTION
801.
|
Company
May Consolidate, Etc., Only on Certain
Terms.
|
The
Company shall not, in a single transaction or a series of related transactions,
consolidate with or merge into any other Person or permit any other Person
to
consolidate with or merge into the Company or, directly or indirectly, transfer,
convey, sell, lease or otherwise dispose of all or substantially all of its
assets, unless:
(1) in
a
transaction in which the Company does not survive or in which the Company
transfers, conveys, sells, leases or otherwise disposes of all or substantially
all of its assets, the successor entity (for purposes of this Article Eight,
a
"Successor Company") shall be a corporation, partnership, trust or other entity
organized and validly existing under the laws of the United States of America,
any State thereof or the District of Columbia, and shall expressly assume,
by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of
and any premium and interest on all the Securities and the performance or
observance of every covenant of this Indenture on the part of the Company to
be
performed or observed;
(2) immediately
before and after giving pro forma effect to such transaction and treating any
indebtedness which becomes an obligation of the Company or any Subsidiary as
a
result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default,
shall have happened and be continuing;
(3) if,
as a
result of any such consolidation or merger or such transfer, conveyance, sale,
lease or other disposition, properties or assets of the Company would become
subject to a mortgage, pledge, lien, security interest or other encumbrance
which would not be permitted by this Indenture, the Company or the Successor
Company, as the case may be, shall take such steps as shall be necessary
effectively to secure the Securities equally and ratably with (or prior to)
all
indebtedness secured thereby;
(4) any
other
conditions provided pursuant to Section 301 with respect to the Securities
of a
series are satisfied; and
(5) the
Company has delivered to the Trustee an Officers' Certificate and an Opinion
of
Counsel, each stating that such consolidation, merger, transfer, conveyance,
sale, lease or other disposition and, if a supplemental indenture is required
in
connection with such transaction, such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
50
|
SECTION
802.
|
Subsidiary
Guarantors May Consolidate, Etc., Only on Certain
Terms.
|
Except
in
a transaction resulting in the release of a Subsidiary Guarantor in accordance
with the terms of this Indenture, each Subsidiary Guarantor shall not, and
the
Company shall not permit any Subsidiary Guarantor to, in a single or a series
of
related transactions, consolidate or merge with or into any Person (other than
the Company or another Subsidiary Guarantor) or permit any Person (other than
another Subsidiary Guarantor) to consolidate or merge with or into such
Subsidiary Guarantor or, directly or indirectly, transfer, convey, sell, lease
or otherwise dispose of all or substantially all of its assets unless, in each
case:
(1) in
a
transaction in which such Subsidiary Guarantor does not survive or in which
all
or substantially all of the assets of such Subsidiary Guarantor are transferred,
conveyed, sold, leased or otherwise disposed of, the successor entity (the
"Successor Subsidiary Guarantor") shall be a corporation, partnership, trust
or
other entity organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia, and shall expressly
assume by an indenture supplemental hereto executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment
of
all obligations of such Subsidiary Guarantor under its Subsidiary Guarantee
and
this Indenture and the performance of every covenant of this Indenture on the
part of such Subsidiary Guarantor to be performed or observed; and
(2) the
Company has delivered to the Trustee an Officers' Certificate and an Opinion
of
Counsel, each stating that such consolidation, merger, transfer, conveyance,
sale, lease or other disposition and, if a supplemental indenture is required
in
connection with such transaction, such supplemental indenture, comply with
this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
|
SECTION
803.
|
Successor
Substituted.
|
(a) Upon
any
consolidation of the Company with, or merger of the Company into, any other
Person or any transfer, conveyance, sale, lease or other disposition of all
or
substantially all of the assets of the Company in accordance with Section 801,
the Successor Company shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
(b) Upon
any
consolidation of a Subsidiary Guarantor with, or merger of such Subsidiary
Guarantor into, any other Person or any transfer, conveyance, sale, lease or
other disposition of all or substantially all of the assets of such Subsidiary
Guarantor in accordance with Section 802, the Successor Subsidiary Guarantor
shall succeed to, and be substituted for, and may exercise every right and
power
of, such Subsidiary Guarantor under this Indenture with the same effect as
if
such successor Person had been named as a Subsidiary Guarantor herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and its
Subsidiary Guarantee.
51
ARTICLE
NINE
SUPPLEMENTAL
INDENTURES
|
SECTION
901.
|
Supplemental
Indentures Without Consent of
Holders.
|
Without
the consent of any Holders, the Company, when authorized by a Board Resolution,
the Subsidiary Guarantors, when authorized by their respective Board
Resolutions, 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 Person to the Company or any Subsidiary
Guarantor and the assumption by any such successor of the covenants of the
Company or any Subsidiary Guarantor herein and in the Securities or Subsidiary
Guarantees, as the case may be; or
(2) to
add to
the covenants of the Company for the benefit of the Holders of all or any series
of Securities (and if such covenants are to be for the benefit of less than
all
series of Securities, stating that such covenants are expressly being included
solely for the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to
add
any additional Events of Default for the benefit of the Holders of all or any
series of Securities (and if such additional Events of Default are to be for
the
benefit of less than all series of Securities, stating that such additional
Events of Default are expressly being included solely for the benefit of such
series); or
(4) to
add to
or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Securities in bearer form,
registrable or not registrable as to principal, and with or without interest
coupons, or to permit or facilitate the issuance of Securities in uncertificated
form; or
(5) to
add
to, change or eliminate any of the provisions of this Indenture in respect
of
one or more series of Securities, provided that any such addition, change or
elimination (A) shall neither (i) apply to any Security of any series created
prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (ii) modify the rights of the Holder of any such
Security with respect to such provision or (B) shall become effective only
when
there is no such Security Outstanding; or
(6) to
secure
the Securities; or
(7) to
establish the form or terms of Securities of any series as permitted by Sections
201 and 301; or
(8) to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Securities of one or more series and to add to
or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
Trustee, pursuant to the requirements of Section 611; or
52
(9) to
cure
any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein; or
(10) to
make
any other provisions with respect to matters or questions arising under this
Indenture, provided that such action pursuant to this clause (10) shall not
adversely affect the interests of the Holders of Securities of any series in
any
material respect; or
(11) to
add
new Subsidiary Guarantors.
|
SECTION
902.
|
Supplemental
Indentures With Consent of Holders.
|
With
the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Securities of each series affected by such supplemental indenture,
by Act of said Holders delivered to the Company, the Subsidiary Guarantors
and
the Trustee, the Company, when authorized by a Board Resolution, the Subsidiary
Guarantors, when authorized by their respective Board Resolutions and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any
of the provisions of this Indenture or of modifying in any manner the rights
of
the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of
the
Holder of each Outstanding Security affected thereby:
(1) change
the Stated Maturity of the principal of, or any installment of principal of
or
interest on, any Security, or reduce the principal amount thereof or the rate
of
interest thereon or any premium payable upon the redemption thereof, or reduce
the amount of the principal of an Original Issue Discount Security or any other
Security which would be due and payable upon a declaration of acceleration
of
the Maturity thereof pursuant to Section 502, 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
(a) any such payment on or after the Stated Maturity thereof (or, in the case
of
redemption, on or after the Redemption Date or in the case of an offer to
purchase Securities which has been made pursuant to a covenant contained in
this
Indenture, on or after the applicable purchase date), or (b) any conversion
right with respect to any Security, or modify the provisions of this Indenture
with respect to the conversion or subordination of the Securities or the
Subsidiary Guarantees, in a manner adverse to the Holders, or release any
Subsidiary Guarantee other than as provided in this Indenture; 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
53
(3) modify
any of the provisions of this Section, Section 513 or Section 1009, 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; provided, however, that this clause
shall
not be deemed to require the consent of any Holder with respect to changes
in
the references to "the Trustee" and concomitant changes in this Section and
Section 1009, or the deletion of this proviso, in accordance with the
requirements of Sections 611 and 901(8); or
(4) following
the making of an offer to purchase Securities from any Holder which has been
made pursuant to a covenant contained in this Indenture, modify the provisions
of this Indenture with respect to such offer to purchase in a manner adverse
to
such Holder.
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 Holders under this Section to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
|
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 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.
|
SECTION
905.
|
Conformity
with Trust Indenture Act.
|
Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act.
54
|
SECTION
906.
|
Reference
in Securities to Supplemental
Indentures.
|
Securities
of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required
by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared
and
executed by the Company, if applicable the Subsidiary Guarantees may be endorsed
thereon and such new Securities may be authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE
TEN
COVENANTS
|
SECTION
1001.
|
Payment
of Principal, Premium and Interest.
|
The
Company covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay the principal of and any premium and interest
on
the Securities of that series in accordance with the terms of the Securities
and
this Indenture. Principal, premium, if any, and interest shall be considered
paid on the date due if the Paying Agent, if other than the Company or a
Subsidiary thereof, holds as of 11:00 A.M., New York City time, on the due
date
money deposited by the Company in immediately available funds and designated
for
and sufficient to pay all principal, premium, if any, and interest then
due.
|
SECTION
1002.
|
Maintenance
of Office or Agency.
|
The
Company will maintain in each Place of Payment for any series of Securities
an
office or agency where Securities of that series may be presented or surrendered
for payment or, if applicable, for conversion, where Securities of that series
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company or any Subsidiary Guarantor in respect of
the
Securities of that series or any Subsidiary Guarantee and this Indenture may
be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency
or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company and each Subsidiary Guarantor hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The
Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such
designations; provided, however, that no such designation or rescission shall
in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
55
|
SECTION
1003.
|
Money
for Securities Payments to Be Held in
Trust.
|
If
the
Company or any Subsidiary Guarantor shall at any time act as its own Paying
Agent with respect to any series of Securities, it will, on or before each
due
date of the principal of or any premium or interest on any of the Securities
of
that series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal and any premium and interest
so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever
the Company shall have one or more Paying Agents for any series of Securities,
it will, prior to 11:00 A.M., New York City time, on each due date of the
principal of or any premium or interest on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to
be
held as provided by the Trust Indenture Act, and (unless such Paying Agent
is
the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
The
Company will cause each Paying Agent for any series of Securities other than
the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will (1) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (2) during the continuance
of any default by the Company, the Subsidiary Guarantors, if applicable, or
any
other obligor upon the Securities of that series in the making of any payment
in
respect of the Securities of that series, upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying
Agent for payment in respect of the Securities of that series.
The
Company may at any time, for the purpose of obtaining the satisfaction and
discharge of this Indenture or for any other purpose, pay, or by Company Order
direct any Paying Agent to pay, to the Trustee all sums held in trust by the
Company or such Paying Agent, such sums to be held by the Trustee upon the
same
trusts as those upon which such sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such
money.
Any
money
deposited with the Trustee or any Paying Agent, or then held by the Company,
in
trust for the payment of the principal of or any premium or interest on any
Security of any series and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall be paid to
the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause
to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, New York, notice that such money remains unclaimed and that, after a
date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
56
|
SECTION
1004.
|
Statement
by Officers as to Default.
|
(a) The
Company and the Subsidiary Guarantors will deliver to the Trustee, within 90
days after the end of each fiscal year of the Company ending after the date
hereof, an Officers' Certificate, stating whether or not to the best knowledge
of the signers thereof the Company or any Subsidiary Guarantor, as the case
may
be, is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company or any
Subsidiary Guarantor shall be in default, specifying all such defaults and
the
nature and status thereof of which they may have knowledge.
(b) The
Company and each Subsidiary Guarantor shall deliver to the Trustee, as soon
as
possible and in any event within five days after the Company or such Subsidiary
Guarantor becomes aware or should reasonably become aware of the occurrence
of
an Event of Default or an event which, with notice or the lapse of time or
both,
would constitute an Event of Default, an Officers' Certificate setting forth
the
details of such Event of Default or default, and the action which the Company
or
such Subsidiary Guarantor proposes to take with respect thereto.
|
SECTION
1005.
|
Existence.
|
Subject
to Article Eight, the Company will do or cause to be done all things necessary
to preserve and keep in full force and effect the existence, rights (charter
and
statutory) and franchises of the Company; provided, however, that the Company
shall not be required to preserve any such right or franchise if it shall
determine that the preservation thereof is no longer desirable in the conduct
of
the business of the Company and that the loss thereof is not disadvantageous
in
any material respect to the Holders.
|
SECTION
1006.
|
Maintenance
of Properties.
|
The
Company will cause all properties used or useful in the conduct of its business
or the business of any Subsidiary to be maintained and kept in good condition,
repair and working order (reasonable wear and tear excepted) and supplied with
all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct
of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
|
SECTION
1007.
|
Payment
of Taxes and Other Claims.
|
The
Company will pay or discharge or cause to be paid or discharged, before the
same
shall become delinquent, (1) all taxes, assessments and governmental charges
levied or imposed upon the Company or any Subsidiary or upon the income, profits
or property of the Company or any Subsidiary, and (2) all lawful claims for
labor, materials and supplies which, if unpaid, might by law become a lien
upon
the property of the Company or any Subsidiary; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate
proceedings.
57
|
SECTION
1008.
|
Maintenance
of Insurance.
|
The
Company shall, and shall cause its Subsidiaries to, keep at all times all of
their properties which are of an insurable nature insured against loss or damage
with insurers believed by the Company to be responsible to the extent that
property of similar character is usually so insured by corporations similarly
situated and owning like properties in accordance with good business
practice.
|
SECTION
1009.
|
Waiver
of Certain Covenants.
|
Except
as
otherwise specified as contemplated by Section 301 for Securities of such
series, the Company may, with respect to the Securities of any series, omit
in
any particular instance to comply with any term, provision or condition set
forth in any of Sections 1005 through 1008 or in any covenant provided pursuant
to Section 301(22), 901(2) or 901(7) for the benefit of the Holders of such
series if before the time for such compliance the Holders of at least a majority
in principal amount of the Outstanding Securities of such series shall, by
Act
of such Holders, either waive such compliance in such instance or generally
waive compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the extent
so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any
such
term, provision or condition shall remain in full force and effect.
ARTICLE
ELEVEN
REDEMPTION
OF SECURITIES
|
SECTION
1101.
|
Applicability
of Article.
|
Securities
of any series which are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as otherwise specified
as
contemplated by Section 301 for such Securities) in accordance with this
Article.
|
SECTION
1102.
|
Election
to Redeem; Notice to Trustee.
|
The
election of the Company to redeem any Securities shall be evidenced by a Board
Resolution or in another manner specified as contemplated by Section 301 for
such Securities. In case of any redemption at the election of the Company of
less than all the Securities of any series (including any such redemption
affecting only a single Security), the Company shall, at least five Business
Days prior to giving notice of such redemption (unless a shorter notice shall
be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, of
the
principal amount of Securities of such series to be redeemed and, if applicable,
of the tenor of the Securities to be redeemed. In the case of any redemption
of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
58
|
SECTION
1103.
|
Selection
by Trustee of Securities to Be
Redeemed.
|
If
less
than all the Securities of any series are to be redeemed (unless all the
Securities of such series and of a specified tenor are to be redeemed or unless
such redemption affects only a single Security), the particular Securities
to be
redeemed shall be selected by the Trustee, from the Outstanding Securities
of
such series not previously called for redemption, (i) in compliance with the
requirements of the principal national securities exchange on which such
Securities are listed, if such Securities are listed on any national securities
exchange, and (ii) if such Securities are not so listed, on a pro rata basis,
by
lot or by such other method as the Trustee shall deem fair and appropriate
and
which may provide for the selection for redemption of a portion of the principal
amount of any Security of such series, provided that the unredeemed portion
of
the principal amount of any Security shall be in an authorized denomination
(which shall not be less than the minimum authorized denomination) for such
Security. If less than all the Securities of such series and of a specified
tenor are to be redeemed (unless such redemption affects only a single
Security), the particular Securities to be redeemed shall be selected by the
Trustee, from the Outstanding Securities of such series and specified tenor
not
previously called for redemption in accordance with the preceding
sentence.
The
Trustee shall promptly notify the Company in writing of the Securities selected
for redemption as aforesaid and, in case of any Securities selected for partial
redemption as aforesaid, the principal amount thereof to be
redeemed.
The
provisions of the two preceding paragraphs shall not apply with respect to
any
redemption affecting only a single Security, whether such Security is to be
redeemed in whole or in part. In the case of any such redemption in part, the
unredeemed portion of the principal amount of the Security shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Security.
For
all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case
of
any Securities redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities which has been or is to be redeemed. If
any
Security selected for partial redemption is surrendered for conversion after
such selection, the converted portion of such Security shall be deemed (so
far
as may be) to be the portion selected for redemption. Upon any redemption of
less than all the Securities of a series, for purposes of selection for
redemption the Company and the Trustee may treat as Outstanding Securities
surrendered for conversion during the period of 15 days next preceding the
mailing of a notice of redemption, and need not treat as Outstanding any
Security authenticated and delivered during such period in exchange for the
unconverted portion of any Security converted in part during such
period.
59
|
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;
provided, however, notice of redemption may be given more than 60 days prior
to
the Redemption Date if the notice is issued in connection with a satisfaction
and discharge pursuant to Article Four.
All
notices of redemption shall state:
(1) the
Redemption Date,
(2) the
Redemption Price, if then determinable and otherwise the method of its
determination,
(3) if
less
than all the Outstanding Securities of any series consisting of more than a
single Security are to be redeemed, the identification (and, in the case of
partial redemption of any such Securities, the principal amounts) of the
particular Securities to be redeemed and, if less than all the Outstanding
Securities of any series consisting of a single Security are to be redeemed,
the
principal amount of the particular Security to be redeemed,
(4) that
on
the Redemption Date the Redemption Price will become due and payable upon each
such Security to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(5) the
place
or places where each such Security is to be surrendered for payment of the
Redemption Price,
(6) that
the
redemption is for a sinking fund, if such is the case, and
(7) if
applicable, the conversion price then in effect and the date on which the right
to convert such Securities will expire.
Notice
of
redemption of Securities to be redeemed at the election of the Company shall
be
given by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company and shall be irrevocable. If any Security
called for redemption is converted pursuant hereto, any money deposited with
the
Trustee or any Paying Agent or so segregated and held in trust for the
redemption of such Security shall be paid to the Company upon delivery of a
Company Request to the Trustee or such Paying Agent, or, if then held by the
Company, shall be discharged from such trust.
|
SECTION
1105.
|
Deposit
of Redemption Price.
|
Prior
to
11:00 A.M., New York City time, on any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting
as
its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay the Redemption Price of, and (except if
the
Redemption Date shall be an Interest Payment Date) accrued interest on, all
the
Securities which are to be redeemed on that date.
60
|
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 Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security
for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity
is
on or prior to the Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and
the
provisions of Section 307.
If
any
Security called for redemption shall not be so paid upon surrender thereof
for
redemption, the principal and any premium shall, until paid, bear interest
from
the Redemption Date at the rate prescribed therefor in the
Security.
|
SECTION
1107.
|
Securities
Redeemed in Part.
|
Any
Security which is to be redeemed only in part shall be surrendered at a Place
of
Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to
the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, if applicable to
Subsidiary Guarantors shall execute the Subsidiary Guarantee endorsed thereon,
and the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series and
of
like tenor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE
TWELVE
SUBORDINATION
OF SECURITIES
|
SECTION
1201.
|
Applicability
of Article.
|
Unless
otherwise provided with respect to the Securities of any series in or pursuant
to the Board Resolution or supplemental indenture establishing such series
of
Securities pursuant to Section 301, the provisions of this Article shall be
applicable to each series of Securities.
|
SECTION
1202.
|
Securities
Subordinate to Senior Debt.
|
The
Company covenants and agrees, and each Holder of a Security, by his acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article (subject to the provisions of Article
Four
and Article Fifteen), the payment of the principal of (and premium, if any)
and
interest on each and all of the Securities of such series are hereby expressly
made subordinate and subject in right of payment to the prior payment in full
of
all Senior Debt of the Company.
61
No
provisions of this Article Twelve shall prevent the occurrence of any Event
of
Default.
|
SECTION
1203.
|
Payment
Over of Proceeds Upon Dissolution,
Etc.
|
In
the
event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding
in
connection therewith, relative to the Company or to its creditors, as such,
or
to its assets, or (b) any liquidation, dissolution or other winding up of the
Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors
or
any other marshalling of assets and liabilities of the Company, then and in
any
such event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Proceeding") the holders of Senior Debt of the
Company shall be entitled to receive payment in full of all amounts due or
to
become due on or in respect of all Senior Debt of the Company, or provision
shall be made for such payment in cash or cash equivalents or otherwise in
a
manner satisfactory to the holders of Senior Debt of the Company, before the
Holders of the Securities are entitled to receive any payment or distribution
of
any kind or character, whether in cash, property or securities (including any
payment or distribution which may be payable or deliverable by reason of the
payment of any other indebtedness of the Company subordinated to the payment
of
the Securities, such payment or distribution being hereinafter referred to
as a
"Junior Subordinated Payment"), on account of principal of (or premium, if
any)
or interest on the Securities or on account of any purchase or other acquisition
of Securities by the Company or any Subsidiary of the Company (all such
payments, distributions, purchases and acquisitions, other than the payment
or
distribution of stock or securities of the Company referred to in the second
succeeding paragraph, herein referred to, individually and collectively, as
a
"Securities Payment"), and to that end the holders of Senior Debt of the Company
shall be entitled to receive, for application to the payment thereof, any
Securities Payment which may be payable or deliverable in respect of the
Securities in any such Proceeding.
In
the
event that, notwithstanding the foregoing provisions of this Section, the
Trustee or the Holder of any Security shall have received any Securities Payment
before all Senior Debt of the Company is paid in full or payment thereof
provided for in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Debt of the Company, and if such fact shall, at or
prior to the time of such Securities Payment, have been made known to the
Trustee or, as the case may be, such Holder, then and in such event such
Securities Payment shall be paid over or delivered forthwith to the trustee
in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for application
to the payment of all Senior Debt of the Company remaining unpaid, to the extent
necessary to pay all Senior Debt of the Company in full, after giving effect
to
any concurrent payment or distribution to or for the holders of Senior Debt
of
the Company.
62
For
purposes of this Article only, the words "any payment or distribution of any
kind or character, whether in cash, property or securities" shall not be deemed
to include a payment or distribution of stock or securities of the Company
provided for by a plan of reorganization or readjustment authorized by an order
or decree of a court of competent jurisdiction in a reorganization proceeding
under any applicable bankruptcy law or of any other corporation provided for
by
such plan of reorganization or readjustment which stock or securities are
subordinated in right of payment to all then outstanding Senior Debt of the
Company to substantially the same extent as the Securities are so subordinated
as provided in this Article. The consolidation of the Company with, or the
merger of the Company into, another Person or the liquidation or dissolution
of
the Company following the conveyance or transfer of all or substantially all
of
its assets to another Person upon the terms and conditions set forth in Article
Eight shall not be deemed a Proceeding for the purposes of this Section if
the
Person formed by such consolidation or into which the Company is merged or
the
Person which acquires by conveyance or transfer such assets, as the case may
be,
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions set forth in Article Eight.
|
SECTION
1204.
|
No
Payment When Senior Debt of the Company in
Default.
|
In
the
event that any Senior Payment Default (as defined below) shall have occurred
and
be continuing, then no Securities Payment shall be made unless and until such
Senior Payment Default shall have been cured or waived or shall have ceased
to
exist or all amounts then due and payable in respect of Senior Debt of the
Company shall have been paid in full, or provision shall have been made for
such
payment in cash or cash equivalents or otherwise in a manner satisfactory to
the
holders of Senior Debt of the Company; provided, however, that nothing in this
Section shall prevent the satisfaction of any sinking fund payment in accordance
with Article Sixteen by delivering and crediting pursuant to Section 1602
Securities which have been acquired (upon redemption or otherwise) prior to
such
Senior Payment Default.
"Senior
Payment Default" means any default in the payment of principal of (or premium,
if any) or interest on any Senior Debt of the Company when due, whether at
the
Stated Maturity of any such payment or by declaration of acceleration, call
for
redemption or otherwise.
In
the
event that any Senior Nonmonetary Default (as defined below) shall have occurred
and be continuing, then, upon the receipt by the Company, the Subsidiary
Guarantors and the Trustee of written notice of such Senior Nonmonetary Default
from the agent for the Designated Senior Debt which is the subject of such
Senior Nonmonetary Default, no Securities Payment shall be made during the
period (the "Payment Blockage Period") commencing on the date of such receipt
of
such written notice and ending on the earlier of (i) the date on which such
Senior Nonmonetary Default shall have been cured or waived or shall have ceased
to exist or all Designated Senior Debt the subject of such Senior Nonmonetary
Default shall have been discharged; (ii) the 179th day after the date of such
receipt of such written notice; or (iii) the date on which the Payment Blockage
Period shall have been terminated by written notice to the Company, any
Subsidiary Guarantor or the Trustee from the agent for the Designated Senior
Debt initiating the Payment Blockage Period; provided, however, that nothing
in
this Section shall prevent the satisfaction of any sinking fund payment in
accordance with Article Sixteen by delivering and crediting pursuant to Section
1602 Securities which have been acquired (upon redemption or otherwise) prior
to
the date of such receipt of such written notice. No more than one Payment
Blockage Period may be commenced with respect to the Securities of a particular
series during any 360-day period and there shall be a period of at least 181
consecutive days in each 360-day period when no Payment Blockage Period is
in
effect. For all purposes of this paragraph, no Senior Nonmonetary Default that
existed or was continuing on the date of commencement of any Payment Blockage
Period shall be, or be made, the basis for the commencement of a subsequent
Payment Blockage Period, whether or not within a period of 360 consecutive
days,
unless such Senior Nonmonetary Default shall have been cured for a period of
not
less than 90 consecutive days.
63
"Senior
Nonmonetary Default" means the occurrence or existence and continuance of any
event of default with respect to any Designated Senior Debt, other than a Senior
Payment Default, permitting the holders of such Designated Senior Debt (or
a
trustee or agent on behalf of the holders thereof) to declare such Designated
Senior Debt due and payable prior to the date on which it would otherwise become
due and payable.
In
the
event that, notwithstanding the foregoing, the Company shall make any Securities
Payment to the Trustee or any Holder prohibited by the foregoing provisions
of
this Section, and if such fact shall, at or prior to the time of such Securities
Payment, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such Securities Payment shall be paid over and
delivered forthwith to the Company.
The
provisions of this Section shall not apply to any Securities Payment with
respect to which Section 1203 would be applicable.
|
SECTION
1205.
|
Payment
Permitted If No Default.
|
Nothing
contained in this Article or elsewhere in this Indenture or in any of the
Securities shall prevent (a) the Company, at any time except during the pendency
of any Proceeding referred to in Section 1203 or under the conditions described
in Section 1204, from making Securities Payments, or (b) the application by
the
Trustee of any money deposited with it hereunder to Securities Payments or
the
retention of such Securities Payment by the Holders, if, at the time of such
application by the Trustee, it did not have knowledge that such Securities
Payment would have been prohibited by the provisions of this
Article.
|
SECTION
1206.
|
Subrogation
to Rights of Holders of Senior Debt of the
Company.
|
Subject
to the payment in full of all amounts due or to become due on or in respect
of
Senior Debt of the Company, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior
Debt
of the Company, the Holders of the Securities shall be subrogated to the rights
of the holders of such Senior Debt of the Company to receive payments and
distributions of cash, property and securities applicable to the Senior Debt
of
the Company until the principal of (and premium, if any) and interest on the
Securities shall be paid in full. For purposes of such subrogation, no payments
or distributions to the holders of the Senior Debt of the Company of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article, and no payments
over pursuant to the provisions of this Article to the holders of Senior Debt
of
the Company by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Debt of the Company and
the
Holders of the Securities, be deemed to be a payment or distribution by the
Company to or on account of the Senior Debt of the Company.
64
|
SECTION
1207.
|
Provisions
Solely to Define Relative Rights.
|
The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders on the one hand and the holders
of
Senior Debt of the Company on the other hand. Nothing contained in this Article
or elsewhere in this Indenture or in the Securities is intended to or shall
(a)
impair, as among the Company, its creditors other than holders of Senior Debt
of
the Company and the Holders of the Securities, the obligation of the Company,
which is absolute and unconditional (and which, subject to the rights under
this
Article of the holders of Senior Debt of the Company, is intended to rank
equally with all other general obligations of the Company), to pay to the
Holders of the Securities the principal of (and premium, if any) and interest
on
the Securities as and when the same shall become due and payable in accordance
with their terms; or (b) affect the relative rights against the Company of
the
Holders of the Securities and creditors of the Company other than the holders
of
Senior Debt of the Company; or (c) prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law
upon
default under this Indenture, subject to the rights, if any, under this Article
of the holders of Senior Debt of the Company to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such
Holder.
|
SECTION
1208.
|
Trustee
to Effectuate Subordination.
|
Each
Holder of a Security by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate
to
effectuate the subordination provided in this Article and appoints the Trustee
his attorney-in-fact for any and all such purposes.
|
SECTION
1209.
|
No
Waiver of Subordination Provisions.
|
No
right
of any present or future holder of any Senior Debt of the Company to enforce
subordination as herein provided shall at any time in any way be prejudiced
or
impaired by any act or failure to act on the part of the Company or by any
act
or failure to act, in good faith, by any such holder, or by any noncompliance
by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without
in any way limiting the generality of the foregoing paragraph, the holders
of
Senior Debt of the Company may, at any time and from time to time, without
the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Debt of
the
Company, do any one or more of the following: (i) change the manner, place
or
terms of payment or extend the time of payment of, or renew or alter, Senior
Debt of the Company, or otherwise amend or supplement in any manner Senior
Debt
of the Company or any instrument evidencing the same or any agreement under
which Senior Debt of the Company is outstanding; (ii) sell, exchange, release
or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Debt of the Company; (iii) release any Person liable in any manner for the
collection of Senior Debt of the Company; and (iv) exercise or refrain from
exercising any rights against the Company and any other Person.
65
|
SECTION
1210.
|
Notice
to Trustee.
|
The
Company shall give prompt written notice to the Trustee of any fact known to
the
Company which would prohibit the making of any payment to or by the Trustee
in
respect of the Securities. Notwithstanding the provisions of this Article or
any
other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of
any
payment to or by the Trustee in respect of the Securities, unless and until
the
Trustee shall have received written notice thereof from the Company or a holder
of Senior Debt of the Company or from any trustee therefor; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions
of
Section 601, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the notice
provided for in this Section at least three Business Days prior to the date
upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (and premium,
if
any) or interest on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money
was
received and shall not be affected by any notice to the contrary which may
be
received by it within three Business Days prior to such date.
Subject
to the provisions of Section 601, the Trustee shall be entitled to rely on
the
delivery to it of a written notice by a Person representing himself to be a
holder of Senior Debt of the Company (or a trustee therefor) to establish that
such notice has been given by a holder of Senior Debt of the Company (or a
trustee therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Debt of the Company to participate in any payment or distribution
pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Debt of the Company held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such
payment.
|
SECTION
1211.
|
Reliance
on Judicial Order or Certificate of Liquidating
Agent.
|
Upon
any
payment or distribution of assets of the Company referred to in this Article,
the Trustee, subject to the provisions of Section 601, and the Holders of the
Securities shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which such Proceeding is pending, or a
certificate of the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee for the benefit of creditors, agent or other Person making
such payment or distribution, delivered to the Trustee or to the Holders of
Securities, for the purpose of ascertaining the Persons entitled to participate
in such payment or distribution, the holders of the Senior Debt of the Company
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
66
|
SECTION
1212.
|
Trustee
Not Fiduciary for Holders of Senior Debt of the
Company.
|
The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Debt of the Company and shall not be liable to any such holders if it shall
in
good faith mistakenly pay over or distribute to Holders of Securities or to
the
Company, a Subsidiary Guarantor or to any other Person cash, property or
securities to which any holders of Senior Debt of the Company shall be entitled
by virtue of this Article or otherwise.
|
SECTION
1213.
|
Rights
of Trustee as Holder of Senior Debt of the Company; Preservation
of
Trustee's Rights.
|
The
Trustee in its individual capacity shall be entitled to all the rights set
forth
in this Article with respect to any Senior Debt of the Company which may at
any
time be held by it, to the same extent as any other holder of Senior Debt of
the
Company, and nothing in this Indenture shall deprive the Trustee of any of
its
rights as such holder.
Nothing
in this Article shall apply to claims of, or payments to, the Trustee under
or
pursuant to Section 607.
|
SECTION
1214.
|
Article
Applicable to Paying Agents.
|
In
case
at any time any Paying Agent other than the Trustee shall have been appointed
by
the Company and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully
for
all intents and purposes as if such Paying Agent were named in this Article
in
addition to or in place of the Trustee; provided, however, that Section 1213
shall not apply to the Company, any Subsidiary Guarantor or any Affiliate of
the
Company if it or such Subsidiary Guarantor or Affiliate acts as Paying
Agent.
|
SECTION
1215.
|
Defeasance
of this Article Twelve.
|
The
subordination of the Securities of a series provided by this Article Twelve
is
expressly made subject to the provisions for Defeasance or Covenant Defeasance
in Article Fifteen hereof and, anything herein to the contrary notwithstanding,
upon the effectiveness of any such Defeasance or Covenant Defeasance, the
Securities of such series then outstanding shall thereupon cease to be
subordinated pursuant to this Article Twelve.
67
ARTICLE
THIRTEEN
SUBSIDIARY
GUARANTEES
|
SECTION
1301.
|
Applicability
of Article.
|
Unless
the Company elects to issue any series of Securities without the benefit of
the
Subsidiary Guarantees, which election shall be evidenced in or pursuant to
the
Board Resolution or supplemental indenture establishing such series of
Securities pursuant to Section 301, the provisions of this Article shall be
applicable to each series of Securities except as otherwise specified in or
pursuant to the Board Resolution or supplemental indenture establishing such
series pursuant to Section 301.
|
SECTION
1302.
|
Subsidiary
Guarantees.
|
Subject
to Section 1301, each Subsidiary Guarantor hereby, jointly and severally, fully
and unconditionally guarantees to each Holder of a Security authenticated and
delivered by the Trustee, the due and punctual payment of the principal of
(and
premium, if any) and interest on such Security when and as the same shall become
due and payable, whether at the Stated Maturity, by acceleration, call for
redemption, offer to purchase or otherwise, in accordance with the terms of
such
Security and of this Indenture, and each Subsidiary Guarantor similarly
guarantees to the Trustee the payment of all amounts owing to the Trustee in
accordance with the terms of this Indenture. In case of the failure of the
Company punctually to make any such payment, each Subsidiary Guarantor hereby,
jointly and severally, agrees to cause such payment to be made punctually when
and as the same shall become due and payable, whether at the Stated Maturity
or
by acceleration, call for redemption, offer to purchase or otherwise, and as
if
such payment were made by the Company.
Each
of
the Subsidiary Guarantors hereby jointly and severally agrees that its
obligations hereunder shall be absolute, unconditional, irrespective of, and
shall be unaffected by, the validity, regularity or enforceability of such
Security or this Indenture, the absence of any action to enforce the same or
any
release, amendment, waiver or indulgence granted to the Company or any guarantor
or any consent to departure from any requirement of any other guarantee of
all
or any of the Securities of such series or any other circumstances which might
otherwise constitute a legal or equitable discharge or defense of a surety
or
guarantor; provided, however, that, notwithstanding the foregoing, no such
release, amendment, waiver or indulgence shall, without the consent of such
Subsidiary Guarantor, increase the principal amount of such Security, or
increase the interest rate thereon, or alter the Stated Maturity thereof. Each
of the Subsidiary Guarantors hereby waives the benefits of diligence,
presentment, demand for payment, any requirement that the Trustee or any of
the
Holders protect, secure, perfect or insure any security interest in or other
lien on any property subject thereto or exhaust any right or take any action
against the Company or any other Person or any collateral, filing of claims
with
a court in the event of insolvency or bankruptcy of the Company, any right
to
require a proceeding first against the Company, protest or notice with respect
to such Security or the indebtedness evidenced thereby and all demands
whatsoever, and covenants that this Subsidiary Guarantee will not be discharged
in respect of such Security except by complete performance of the obligations
contained in such Security and in such Subsidiary Guarantee. Each Subsidiary
Guarantor agrees that if, after the occurrence and during the continuance of
an
Event of Default, the Trustee or any of the Holders are prevented by applicable
law from exercising their respective rights to accelerate the maturity of the
Securities of a series, to collect interest on the Securities of a series,
or to
enforce or exercise any other right or remedy with respect to the Securities
of
a series, such Subsidiary Guarantor agrees to pay to the Trustee for the account
of the Holders, upon demand therefor, the amount that would otherwise have
been
due and payable had such rights and remedies been permitted to be exercised
by
the Trustee or any of the Holders.
68
The
indebtedness of each Subsidiary Guarantor evidenced by the Subsidiary Guarantees
is, to the extent provided in this Indenture, subordinate and subject in right
of payment to the prior payment in full of all Senior Debt of each Subsidiary
Guarantor, and the Subsidiary Guarantees are issued subject to the provisions
of
this Indenture with respect thereto. Each Holder of such Security, by accepting
the same, will be deemed to have (a) agreed to and be bound by such provisions,
(b) authorized and directed the Trustee on his behalf to take such action as
may
be necessary or appropriate to effectuate the subordination so provided and
(c)
appointed the Trustee his attorney-in-fact for any and all such
purposes.
Each
Subsidiary Guarantor shall be subrogated to all rights of the Holders of the
Securities upon which its Subsidiary Guarantee is endorsed against the Company
in respect of any amounts paid by such Subsidiary Guarantor on account of such
Security pursuant to the provisions of its Subsidiary Guarantee or this
Indenture; provided, however, that no Subsidiary Guarantor shall be entitled
to
enforce or to receive any payments arising out of, or based upon, such right
of
subrogation until the principal of (and premium, if any) and interest on all
Securities of the relevant series issued hereunder shall have been paid in
full.
Each
Subsidiary Guarantor that makes or is required to make any payment in respect
of
its Subsidiary Guarantee shall be entitled to seek contribution from the other
Subsidiary Guarantors to the extent permitted by applicable law; provided,
however, that no Subsidiary Guarantor shall be entitled to enforce or receive
any payments arising out of, or based upon, such right of contribution until
the
principal of (and premium, if any) and interest on all Securities of the
relevant series issued hereunder shall have been paid in full.
Each
Subsidiary Guarantee shall remain in full force and effect and continue to
be
effective should any petition be filed by or against the Company for liquidation
or reorganization, should the Company become insolvent or make an assignment
for
the benefit of creditors or should a receiver or trustee be appointed for all
or
any part of the Company's assets, and shall, to the fullest extent permitted
by
law, continue to be effective or be reinstated, as the case may be, if at any
time payment and performance of the Securities of a series, is, pursuant to
applicable law, rescinded or reduced in amount, or must otherwise be restored
or
returned by any Holder of the Securities, whether as a "voidable preference,"
"fraudulent transfer," or otherwise, all as though such payment or performance
had not been made. In the event that any payment, or any part thereof, is
rescinded, reduced, restored or returned, the Securities shall, to the fullest
extent permitted by law, be reinstated and deemed reduced only by such amount
paid and not so rescinded, reduced, restored or returned.
69
|
SECTION
1303.
|
Execution
and Delivery of Subsidiary
Guarantees.
|
The
Subsidiary Guarantees to be endorsed on the Securities shall include the terms
of the Subsidiary Guarantee set forth in Section 1302 and any other terms that
may be set forth in the form established pursuant to Section 204. Subject to
Section 1301, each of the Subsidiary Guarantors hereby agrees to execute its
Subsidiary Guarantee, in a form established pursuant to Section 204, to be
endorsed on each Security authenticated and delivered by the
Trustee.
The
Subsidiary Guarantee shall be executed on behalf of each respective Subsidiary
Guarantor by any one of such Subsidiary Guarantor's Chairman of the Board of
Directors, Vice Chairman of the Board of Directors, Chief Executive Officer,
President, one of its Vice Presidents, or its Secretary. The signature of any
or
all of these persons on the Subsidiary Guarantee may be manual or
facsimile.
A
Subsidiary Guarantee bearing the manual or facsimile signature of individuals
who were at any time the proper officers of a Subsidiary Guarantor shall bind
such Subsidiary Guarantor, notwithstanding that such individuals or any of
them
have ceased to hold such offices prior to the authentication and delivery of
the
Security on which such Subsidiary Guarantee is endorsed or did not hold such
offices at the date of such Subsidiary Guarantee.
The
delivery of any Security by the Trustee, after the authentication thereof
hereunder, shall constitute due delivery of the Subsidiary Guarantee endorsed
thereon on behalf of the Subsidiary Guarantors and shall bind each Subsidiary
Guarantor notwithstanding the fact that Subsidiary Guarantee does not bear
the
signature of such Subsidiary Guarantor. Each of the Subsidiary Guarantors hereby
jointly and severally agrees that its Subsidiary Guarantee set forth in Section
1302 and in the form of Subsidiary Guarantee established pursuant to Section
204
shall remain in full force and effect notwithstanding any failure to endorse
a
Subsidiary Guarantee on any Security.
|
SECTION
1304.
|
Release
of Subsidiary Guarantors.
|
Unless
otherwise specified pursuant to Section 301 with respect to a series of
Securities, each Subsidiary Guarantee will remain in effect with respect to
the
respective Subsidiary Guarantor until the entire principal of, premium, if
any,
and interest on the Securities to which such Subsidiary Guarantee relates shall
have been paid in full or otherwise satisfied and discharged in accordance
with
the provisions of such Securities and this Indenture and all amounts owing
to
the Trustee hereunder have been paid; provided, however, that if (i) such
Subsidiary Guarantor ceases to be a Subsidiary in compliance with the applicable
provisions of this Indenture, (ii) either Defeasance or Covenant Defeasance
occurs with respect to such Securities pursuant to Article Fifteen or (iii)
all
or substantially all of the assets of such Subsidiary Guarantor or all of the
Capital Stock of such Subsidiary Guarantor is sold (including by sale, merger,
consolidation or otherwise) by the Company or any Subsidiary in a transaction
complying with the requirements of this Indenture, then, in each case of (i),
(ii) or (iii), upon delivery by the Company of an Officers' Certificate and
an
Opinion of Counsel stating that all conditions precedent herein provided for
relating to the release of such Subsidiary Guarantor from its obligations under
its Subsidiary Guarantee and this Article Thirteen have been complied with,
such
Subsidiary Guarantor shall be released and discharged of its obligations under
its Subsidiary Guarantee and under this Article Thirteen without any action
on
the part of the Trustee or any Holder, and the Trustee shall execute any
documents reasonably required in order to acknowledge the release of such
Subsidiary Guarantor from its obligations under its Subsidiary Guarantee
endorsed on the Securities of such series and under this Article
Thirteen.
70
|
SECTION
1305.
|
Additional
Subsidiary Guarantors.
|
Unless
otherwise specified pursuant to Section 301 with respect to a series of
Securities, the Company will cause any domestic Subsidiary of the Company that
becomes a Subsidiary after the date the Securities of a series are first issued
hereunder to become a Subsidiary Guarantor as soon as practicable after such
Subsidiary becomes a Subsidiary. The Company shall cause any such Subsidiary
to
become a Subsidiary Guarantor with respect to the Securities by executing and
delivering to the Trustee (a) a supplemental indenture, in form and substance
satisfactory to the Trustee, which subjects such Person to the provisions
(including the representations and warranties) of this Indenture as a Subsidiary
Guarantor and (b) an Opinion of Counsel to the effect that such supplemental
indenture has been duly authorized and executed by such Person and such
supplemental indenture and such Person's obligations under its Subsidiary
Guarantee and this Indenture constitute the legal, valid, binding and
enforceable obligations of such Person (subject to such customary exceptions
concerning creditors' rights and equitable principles as may be acceptable
to
the Trustee in its discretion).
|
SECTION
1306.
|
Limitation
on Liability.
|
Any
term
or provision of this Indenture to the contrary notwithstanding, the maximum
amount of the Subsidiary Guarantee of any Subsidiary Guarantor shall not exceed
the maximum amount that can be hereby guaranteed by such Subsidiary Guarantor
without rendering such Subsidiary Guarantee voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer or similar laws
affecting the rights of creditors generally.
ARTICLE
FOURTEEN
SUBORDINATION
OF SUBSIDIARY GUARANTEES
|
SECTION
1401.
|
Applicability
of Article.
|
Unless
otherwise provided with respect to the Securities of any series in or pursuant
to the Board Resolution or supplemental indenture establishing such series
of
Securities pursuant to Section 301, the provisions of this Article shall be
applicable to each series of Securities.
|
SECTION
1402.
|
Subsidiary
Guarantees Subordinate to Senior Debt of Subordinate
Guarantors.
|
Each
Subsidiary Guarantor covenants and agrees, and each Holder of a Security, by
his
acceptance thereof, likewise covenants and agrees, that, to the extent and
in
the manner hereinafter set forth in this Article (subject to the provisions
of
Article Four and Article Fifteen), the Subsidiary Guarantee of such Subsidiary
Guarantor is hereby expressly made subordinate and subject in right of payment
to the prior payment in full of all Senior Debt of such Subsidiary
Guarantor.
71
No
provisions of this Article Fourteen shall prevent the occurrence of any Event
of
Default.
|
SECTION
1403.
|
Payment
Over of Proceeds Upon Dissolution,
Etc.
|
In
the
event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding
in
connection therewith, relative to any Subsidiary Guarantor or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of any Subsidiary Guarantor, whether voluntary or involuntary and whether
or
not involving insolvency or bankruptcy, or (c) any assignment for the benefit
of
creditors or any other marshalling of assets and liabilities of any Subsidiary
Guarantor, then and in any such event specified in (a), (b) or (c) above (each
such event, if any, herein sometimes referred to as a "Guarantor Proceeding")
the holders of Senior Debt of such Subsidiary Guarantor shall be entitled to
receive payment in full of all amounts due or to become due on or in respect
of
all Senior Debt of such Subsidiary Guarantor, or provision shall be made for
such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Debt of such Subsidiary Guarantor, before the Holders
of the Securities are entitled to receive any payment or distribution of any
kind or character, whether in cash, property or securities (including any
payment or distribution which may be payable or deliverable by reason of the
payment of any other indebtedness of such Subsidiary Guarantor subordinated
to
the payment of the Securities, such payment or distribution being hereinafter
referred to as a "Guarantor Junior Subordinated Payment"), on account of the
Subsidiary Guarantee of such Subsidiary Guarantor (all such payments, other
than
the payment or distribution of stock or securities of a Subsidiary Guarantor
referred to in the second succeeding paragraph, herein referred to, individually
and collectively, as a "Guarantee Payment"), and to that end the holders of
Senior Debt of such Subsidiary Guarantor shall be entitled to receive, for
application to the payment thereof, any Guarantee Payment which may be payable
or deliverable in respect of such Subsidiary Guarantor's Subsidiary Guarantee
in
any such Guarantor Proceeding.
In
the
event that, notwithstanding the foregoing provisions of this Section, the
Trustee or the Holder of any Security shall have received any Guarantee Payment
before all Senior Debt of such Subsidiary Guarantor is paid in full or payment
thereof provided for in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt of such Subsidiary Guarantor, and
if
such fact shall, at or prior to the time of such Guarantee Payment, have been
made known to the Trustee or, as the case may be, such Holder, then and in
such
event such Guarantee Payment shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent
or other Person making payment or distribution of assets of such Subsidiary
Guarantor for application to the payment of all Senior Debt of such Subsidiary
Guarantor remaining unpaid, to the extent necessary to pay all Senior Debt
of
such Subsidiary Guarantor in full, after giving effect to any concurrent payment
or distribution to or for the holders of Senior Debt of such Subsidiary
Guarantor.
For
purposes of this Article only, the words "any payment or distribution of any
kind or character, whether in cash, property or securities" shall not be deemed
to include a payment or distribution of stock or securities of a Subsidiary
Guarantor provided for by a plan of reorganization or readjustment authorized
by
an order or decree of a court of competent jurisdiction in a reorganization
proceeding under any applicable bankruptcy law or of any other corporation
provided for by such plan of reorganization or readjustment which stock or
securities are subordinated in right of payment to all then outstanding Senior
Debt of such Subsidiary Guarantor to substantially the same extent as the
Subsidiary Guarantees are so subordinated as provided in this Article. The
consolidation of a Subsidiary Guarantor with, or the merger of a Subsidiary
Guarantor into, another Person or the liquidation or dissolution of such
Subsidiary Guarantor following the conveyance or transfer of all or
substantially all of its assets to another Person upon the terms and conditions
set forth in Article Eight shall not be deemed a Guarantor Proceeding for the
purposes of this Section if the Person formed by such consolidation or into
which such Subsidiary Guarantor is merged or the Person which acquires by
conveyance or transfer such assets, as the case may be, shall, as a part of
such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article Eight.
72
|
SECTION
1404.
|
No
Payment When Senior Debt of such Subsidiary Guarantor in
Default.
|
In
the
event that any Senior Payment Default shall have occurred and be continuing,
then no Guarantee Payment shall be made unless and until such Senior Payment
Default shall have been cured or waived or shall have ceased to exist or all
amounts then due and payable in respect of the relevant Senior Debt of the
Company shall have been paid in full, or provision shall have been made for
such
payment in cash or cash equivalents or otherwise in a manner satisfactory to
the
holders of such Senior Debt; provided, that nothing in this Section shall
prevent the satisfaction of any sinking fund payment in accordance with Article
Sixteen by delivering and crediting pursuant to Section 1602 Securities which
have been acquired (upon redemption or otherwise) prior to such Senior Payment
Default.
In
the
event that any Senior Nonmonetary Default shall have occurred and be continuing,
then, upon the receipt by the Company, the Subsidiary Guarantors and the Trustee
of written notice of such Senior Nonmonetary Default from any holder, or agent
for the holders, of any Designated Senior Debt of the Company, no Guarantee
Payment shall be made during the applicable Payment Blockage Period; provided,
however, that nothing in this Section shall prevent the satisfaction of any
sinking fund payment in accordance with Article Sixteen by delivering and
crediting pursuant to Section 1602 Securities which have been acquired (upon
redemption or otherwise) prior to the date of such receipt of such written
notice. No more than one Payment Blockage Period may be commenced with respect
to the Subsidiary Guarantees during any 360-day period and there shall be a
period of at least 181 consecutive days in each 360-day period when no Payment
Blockage Period is in effect. For all purposes of this paragraph, no Senior
Nonmonetary Default that existed or was continuing on the date of commencement
of any Payment Blockage Period shall be, or be made, the basis for the
commencement of a subsequent Payment Blockage Period, whether or not within
a
period of 360 consecutive days, unless such Senior Nonmonetary Default shall
have been cured for a period of not less than 90 consecutive days.
In
the
event that, notwithstanding the foregoing, a Subsidiary Guarantor shall make
any
Guarantee Payment to the Trustee or any Holder prohibited by the foregoing
provisions of this Section, and if such fact shall, at or prior to the time
of
such Guarantee Payment, have been made known to the Trustee or, as the case
may
be, such Holder, then and in such event such Guarantee Payment shall be paid
over and delivered forthwith to the Company.
73
The
provisions of this Section shall not apply to any Guarantee Payment with respect
to which Section 1403 would be applicable.
|
SECTION
1405.
|
Payment
Permitted If No Default.
|
Nothing
contained in this Article or elsewhere in this Indenture or in any of the
Subsidiary Guarantees shall prevent (a) a Subsidiary Guarantor, at any time
except during the pendency of any Guarantor Proceeding referred to in Section
1403 or under the conditions described in Section 1404, from making Guarantee
Payments, or (b) the application by the Trustee of any money deposited with
it
hereunder to Guarantee Payments or the retention of such Guarantee Payment
by
the Holders, if, at the time of such application by the Trustee, it did not
have
knowledge that such Guarantee Payment would have been prohibited by the
provisions of this Article.
|
SECTION
1406.
|
Subrogation
to Rights of Holders of Senior Debt of such Subsidiary
Guarantor.
|
Subject
to the payment in full of all amounts due or to become due on or in respect
of
Senior Debt of a Subsidiary Guarantor, or the provision for such payment in
cash
or cash equivalents or otherwise in a manner satisfactory to the holders of
Senior Debt of such Subsidiary Guarantor, the Holders of the Securities shall
be
subrogated to the rights of the holders of such Senior Debt of such Subsidiary
Guarantor to receive payments and distributions of cash, property and securities
applicable to the Senior Debt of such Subsidiary Guarantor until the principal
of (and premium, if any) and interest on the Securities shall be paid in full.
For purposes of such subrogation, no payments or distributions to the holders
of
the Senior Debt of a Subsidiary Guarantor of any cash, property or securities
to
which the Holders of the Securities or the Trustee would be entitled except
for
the provisions of this Article, and no payments over pursuant to the provisions
of this Article to the holders of Senior Debt of a Subsidiary Guarantor by
Holders of the Securities or the Trustee, shall, as among a Subsidiary
Guarantor, its creditors other than holders of Senior Debt of such Subsidiary
Guarantor and the Holders of the Securities, be deemed to be a payment or
distribution by such Subsidiary Guarantor to or on account of the Senior Debt
of
such Subsidiary Guarantor.
|
SECTION
1407.
|
Provisions
Solely to Define Relative Rights.
|
The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders on the one hand and the holders
of
Senior Debt of a Subsidiary Guarantor on the other hand. Nothing contained
in
this Article or elsewhere in this Indenture or in the Subsidiary Guarantees
is
intended to or shall (a) impair, as among a Subsidiary Guarantor, its creditors
other than holders of Senior Debt of such Subsidiary Guarantor and the Holders
of the Securities, the obligation of such Subsidiary Guarantor, which is
absolute and unconditional (and which, subject to the rights under this Article
of the holders of Senior Debt of such Subsidiary Guarantor, is intended to
rank
equally with all other general obligations of such Subsidiary Guarantor), to
guarantee payment to the Holders of the Securities of the principal of (and
premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms; or (b) affect the
relative rights against a Subsidiary Guarantor of the Holders of the Securities
and creditors of such Subsidiary Guarantor other than the holders of Senior
Debt
of such Subsidiary Guarantor; or (c) prevent the Trustee or the Holder of any
Security from exercising all remedies otherwise permitted by applicable law
upon
default under this Indenture, subject to the rights, if any, under this Article
of the holders of Senior Debt of a Subsidiary Guarantor to receive cash,
property and securities otherwise payable or deliverable to the Trustee or
such
Holder.
74
|
SECTION
1408.
|
Trustee
to Effectuate Subordination.
|
Each
Holder of a Security by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate
to
effectuate the subordination provided in this Article and appoints the Trustee
his attorney-in-fact for any and all such purposes.
|
SECTION
1409.
|
No
Waiver of Subordination Provisions.
|
No
right
of any present or future holder of any Senior Debt of a Subsidiary Guarantor
to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of such
Subsidiary Guarantor or by any act or failure to act, in good faith, by any
such
holder, or by any noncompliance by such Subsidiary Guarantor with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
any such holder may have or be otherwise charged with.
Without
in any way limiting the generality of the foregoing paragraph, the holders
of
Senior Debt of a Subsidiary Guarantor may, at any time and from time to time,
without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Debt of such Subsidiary Guarantor, do any one or more of the following:
(i) change the manner, place or terms of payment or extend the time of payment
of, or renew or alter, Senior Debt of such Subsidiary Guarantor, or otherwise
amend or supplement in any manner Senior Debt of such Subsidiary Guarantor
or
any instrument evidencing the same or any agreement under which Senior Debt
of
such Subsidiary Guarantor is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing Senior
Debt of such Subsidiary Guarantor; (iii) release any Person liable in any manner
for the collection of Senior Debt of such Subsidiary Guarantor; and (iv)
exercise or refrain from exercising any rights against such Subsidiary Guarantor
and any other Person.
|
SECTION
1410.
|
Notice
to Trustee.
|
Each
Subsidiary Guarantor shall give prompt written notice to the Trustee of any
fact
known to such Subsidiary Guarantor which would prohibit the making of any
payment to or by the Trustee in respect of its Subsidiary Guarantee.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence
of
any facts which would prohibit the making of any payment to or by the Trustee
in
respect of the Subsidiary Guarantees, unless and until the Trustee shall have
received written notice thereof from a Subsidiary Guarantor or a holder of
Senior Debt of such Subsidiary Guarantor or from any trustee therefor; and,
prior to the receipt of any such written notice, the Trustee, subject to the
provisions of Section 601, shall be entitled in all respects to assume that
no
such facts exist; provided, however, that if the Trustee shall not have received
the notice provided for in this Section at least three Business Days prior
to
the date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of (and
premium, if any) or interest on any Security), then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and authority
to receive such money and to apply the same to the purpose for which such money
was received and shall not be affected by any notice to the contrary which
may
be received by it within three Business Days prior to such date.
75
Subject
to the provisions of Section 601, the Trustee shall be entitled to rely on
the
delivery to it of a written notice by a Person representing himself to be a
holder of Senior Debt of a Subsidiary Guarantor (or a trustee therefor) to
establish that such notice has been given by a holder of Senior Debt of such
Subsidiary Guarantor (or a trustee therefor). In the event that the Trustee
determines in good faith that further evidence is required with respect to
the
right of any Person as a holder of Senior Debt of a Subsidiary Guarantor to
participate in any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction
of
the Trustee as to the amount of Senior Debt of such Subsidiary Guarantor held
by
such Person, the extent to which such Person is entitled to participate in
such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
|
SECTION
1411.
|
Reliance
on Judicial Order or Certificate of Liquidating
Agent.
|
Upon
any
payment or distribution of assets of a Subsidiary Guarantor referred to in
this
Article, the Trustee, subject to the provisions of Section 601, and the Holders
of the Securities shall be entitled to rely upon any order or decree entered
by
any court of competent jurisdiction in which such Guarantor Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt
of
such Subsidiary Guarantor and other indebtedness of such Subsidiary Guarantor,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article.
|
SECTION
1412.
|
Trustee
Not Fiduciary for Holders of Senior Debt of such Subsidiary
Guarantor.
|
The
Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Debt of a Subsidiary Guarantor and shall not be liable to any such holders
if it
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company, a Subsidiary Guarantor, or to any other Person cash, property
or securities to which any holders of Senior Debt of such Subsidiary Guarantor
shall be entitled by virtue of this Article or otherwise.
76
|
SECTION
1413.
|
Rights
of Trustee as Holder of Senior Debt of such Subsidiary Guarantor;
Preservation of Trustee's Rights.
|
The
Trustee in its individual capacity shall be entitled to all the rights set
forth
in this Article with respect to any Senior Debt of a Subsidiary Guarantor which
may at any time be held by it, to the same extent as any other holder of Senior
Debt of such Subsidiary Guarantor, and nothing in this Indenture shall deprive
the Trustee of any of its rights as such holder.
Nothing
in this Article shall apply to claims of, or payments to, the Trustee under
or
pursuant to Section 607.
|
SECTION
1414.
|
Article
Applicable to Paying Agents.
|
In
case
at any time any Paying Agent other than the Trustee shall have been appointed
by
the Company and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully
for
all intents and purposes as if such Paying Agent were named in this Article
in
addition to or in place of the Trustee; provided, however, that Section 1413
shall not apply to the Company, any Subsidiary Guarantor or any Affiliate of
the
Company if it or such Subsidiary Guarantor or Affiliate acts as Paying
Agent.
|
SECTION
1415.
|
Defeasance
of this Article Fourteen.
|
The
subordination of the Subsidiary Guarantees provided by this Article Fourteen
is
expressly made subject to the provisions for Defeasance or Covenant Defeasance
of a series of Securities in Article Fifteen hereof and, anything herein to
the
contrary notwithstanding, upon the effectiveness of any such Defeasance or
Covenant Defeasance with respect to a series of Securities, the Subsidiary
Guarantees of the Securities of such series shall thereupon cease to be
subordinated pursuant to this Article Fourteen.
ARTICLE
FIFTEEN
DEFEASANCE
AND COVENANT DEFEASANCE
|
SECTION
1501.
|
Company's
Option to Effect Defeasance or Covenant
Defeasance.
|
The
Company may elect, at its option at any time, to have Section 1502 or Section
1503 applied to any Securities or any series of Securities, as the case may
be,
designated pursuant to Section 301 as being defeasible pursuant to such Section
1502 or 1503, in accordance with any applicable requirements provided pursuant
to Section 301 and upon compliance with the conditions set forth below in this
Article. Any such election shall be evidenced in or pursuant to a Board
Resolution or in another manner specified as contemplated by Section 301 for
such Securities.
77
|
SECTION
1502.
|
Defeasance
and Discharge.
|
Upon
the
Company's exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, the Company shall
be
deemed to have been discharged from its obligations, and each Subsidiary
Guarantor shall be deemed to have been discharged from its obligations with
respect to its Subsidiary Guarantees of such Securities, and the provisions
of
Articles Twelve and Fourteen shall cease to be effective, with respect to such
Securities and Subsidiary Guarantees as provided in this Section on and after
the date the conditions set forth in Section 1504 are satisfied (herein called
"Defeasance"). For this purpose, such Defeasance means that the Company shall
be
deemed to have paid and discharged the entire indebtedness represented by such
Securities and to have satisfied all its other obligations under such Securities
and this Indenture insofar as such Securities are concerned (and the Trustee,
at
the expense of the Company, shall execute proper instruments acknowledging
the
same), subject to the following which shall survive until otherwise terminated
or discharged hereunder: (1) the rights of Holders of such Securities to
receive, solely from the trust fund described in Section 1504 and as more fully
set forth in such Section, payments in respect of the principal of and any
premium and interest on such Securities when payments are due, or, if
applicable, to convert such Securities in accordance with their terms, (2)
the
Company's and each Subsidiary Guarantor's obligations with respect to such
Securities under Sections 304, 305, 306, 1002 and 1003, and, if applicable,
their obligations with respect to the conversion of such Securities, (3) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and
(4)
this Article. Subject to compliance with this Article, the Company may exercise
its option (if any) to have this Section applied to any Securities
notwithstanding the prior exercise of its option (if any) to have Section 1503
applied to such Securities.
|
SECTION
1503.
|
Covenant
Defeasance.
|
Upon
the
Company's exercise of its option (if any) to have this Section applied to any
Securities or any series of Securities, as the case may be, (1) the Company
shall be released from its obligations under Section 801(3), Sections 1005
through 1008, inclusive, and any covenants provided pursuant to Section 301(22),
901(2) or 901(7) for the benefit of the Holders of such Securities, and (2)
the
occurrence of any event specified in Sections 501(5) (with respect to any of
Section 801(3), Sections 1005 through 1008, inclusive, and any such covenants
provided pursuant to Section 301(22), 901(2) or 901(7)), 501(6), 501(7)),
501(10) and 501(11) shall be deemed not to be or result in an Event of Default
and (3) the provisions of Articles Twelve, Thirteen and Fourteen shall cease
to
be effective, in each case with respect to such Securities and Subsidiary
Guarantees as provided in this Section on and after the date the conditions
set
forth in Section 1504 are satisfied (herein called "Covenant Defeasance").
For
this purpose, such Covenant Defeasance means that, with respect to such
Securities, the Company and the Subsidiary Guarantors, as applicable, may omit
to comply with and shall have no liability in respect of any term, condition
or
limitation set forth in any such specified Section (to the extent so specified
in the case of Section 501(5)) or Article Twelve, Thirteen or Article Fourteen,
whether directly or indirectly by reason of any reference elsewhere herein
to
any such Section or Article or by reason of any reference in any such Section
or
Article to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected
thereby.
78
|
SECTION
1504.
|
Conditions
to Defeasance or Covenant
Defeasance.
|
The
following shall be the conditions to the application of Section 1502 or Section
1503 to any Securities or any series of Securities, as the case may
be:
(1) The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee which satisfies the requirements contemplated by
Section 609 and agrees to comply with the provisions of this Article applicable
to it) as trust funds in trust for the purpose of making the following payments,
specifically pledged as security for, and dedicated solely to, the benefits
of
the Holders of such Securities, (A) money in an amount, or (B) U.S. Government
Obligations which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later than
one
day before the due date of any payment, money in an amount, or (C) a combination
thereof, in each case sufficient, in the opinion of a nationally recognized
firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied
by
the Trustee (or any such other qualifying trustee) to pay and discharge, the
principal of and any premium and interest on such Securities on the respective
Stated Maturities, in accordance with the terms of this Indenture and such
Securities. As used herein, "U.S. Government Obligation" means (x) any security
which is (i) a direct obligation of the United States of America for the payment
of which the full faith and credit of the United States of America is pledged
or
(ii) an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of which
is unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case (i) or (ii), is not callable
or
redeemable at the option of the issuer thereof, and (y) any depositary receipt
issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is specified
in
clause (x) above and held by such bank for the account of the holder of such
depositary receipt, or with respect to any specific payment of principal of
or
interest on any U.S. Government Obligation which is so specified and held,
provided that (except as required by law) such custodian is not authorized
to
make any deduction from the amount payable to the holder of such depositary
receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or interest evidenced
by such depositary receipt.
(2) In
the
event of an election to have Section 1502 apply to any Securities or any series
of Securities, as the case may be, the Company shall have delivered to the
Trustee an Opinion of Counsel stating that (A) the Company has received from,
or
there has been published by, the Internal Revenue Service a ruling or (B) since
the date of this instrument, there has been a change in the applicable Federal
income tax law, in either case (A) or (B) to the effect that, and based thereon
such opinion shall confirm that, the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a result of the
deposit, Defeasance and discharge to be effected with respect to such Securities
and will be subject to Federal income tax on the same amount, in the same manner
and at the same times as would be the case if such deposit, Defeasance and
discharge were not to occur.
79
(3) In
the
event of an election to have Section 1503 apply to any Securities or any series
of Securities, as the case may be, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that the Holders of such Securities
will not recognize gain or loss for Federal income tax purposes as a result
of
the deposit and Covenant Defeasance to be effected with respect to such
Securities and will be subject to Federal income tax on the same amount, in
the
same manner and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(4) The
Company shall have delivered to the Trustee an Officers' Certificate to the
effect that neither such Securities nor any other Securities of the same series,
if then listed on any securities exchange, will be delisted as a result of
such
deposit.
(5) No
event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to such Securities or any other Securities shall have
occurred and be continuing at the time of such deposit or, with regard to any
such event specified in Sections 501(7) and (8), at any time on or prior to
the
121st day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until after such 121st
day).
(6) Such
Defeasance or Covenant Defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust Indenture Act (assuming
all
Securities are in default within the meaning of such Act).
(7) Such
Defeasance or Covenant Defeasance shall not result in a breach or violation
of,
or constitute a default under, any other agreement or instrument to which the
Company or any Subsidiary is a party or by which it is bound.
(8) At
the
time of such deposit, (A) no default in the payment of any principal of or
premium or interest on any Senior Debt of the Company or any Subsidiary
Guarantor shall have occurred and be continuing, (B) no event of default with
respect to any Senior Debt of the Company or any Subsidiary Guarantor shall
have
resulted in such Senior Debt becoming, and continuing to be, due and payable
prior to the date on which it would otherwise have become due and payable
(unless payment of such Senior Debt has been made or duly provided for), and
(C)
no other event of default with respect to any Senior Debt of the Company or
any
Subsidiary Guarantor shall have occurred and be continuing permitting (after
notice or lapse of time or both) the holders of such Senior Debt (or a trustee
on behalf of such holders) to declare such Senior Debt due and payable prior
to
the date on which it would otherwise have become due and payable.
(9) The
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that such deposit shall not cause either the Trustee or the trust so created
to
be subject to the Investment Company Act of 1940.
(10) The
Company shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent with respect
to
such Defeasance or Covenant Defeasance have been complied with.
80
|
SECTION
1505.
|
Deposited
Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous
Provisions.
|
Subject
to the provisions of the last paragraph of Section 1003, all money and U.S.
Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and
Section 1506, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1504 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance
with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any such Paying Agent (including the Company acting as
its
own Paying Agent) as the Trustee may determine, to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but money so held in trust need not be segregated
from other funds except to the extent required by law. Money and U.S. Government
Obligations so held in trust shall not be subject to the provisions of Article
Twelve or Article Fourteen.
The
Company shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 1504 or the principal and interest received in respect
thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of Outstanding Securities.
Anything
in this Article to the contrary notwithstanding, the Trustee shall deliver
or
pay to the Company from time to time upon Company Request any money or U.S.
Government Obligations held by it as provided in Section 1504 with respect
to
any Securities which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect the Defeasance or Covenant Defeasance,
as
the case may be, with respect to such Securities.
|
SECTION
1506.
|
Reinstatement.
|
If
the
Trustee or the Paying Agent is unable to apply any money in accordance with
this
Article with respect to any Securities by reason of any order or judgment of
any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the obligations under this Indenture and such Securities
from which the Company has been discharged or released pursuant to Section
1502
or 1503 shall be revived and reinstated as though no deposit had occurred
pursuant to this Article with respect to such Securities, until such time as
the
Trustee or Paying Agent is permitted to apply all money held in trust pursuant
to Section 1505 with respect to such Securities in accordance with this Article;
provided, however, that if the Company makes any payment of principal of or
any
premium or interest on any such Security following such reinstatement of its
obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money so held in
trust.
81
ARTICLE
SIXTEEN
SINKING
FUNDS
|
SECTION
1601.
|
Applicability
of Article.
|
The
provisions of this Article shall be applicable to any sinking fund for the
retirement of Securities of any series except as otherwise specified as
contemplated by Section 301 for such Securities.
The
minimum amount of any sinking fund payment provided for by the terms of any
Securities is herein referred to as a "mandatory sinking fund payment", and
any
payment in excess of such minimum amount provided for by the terms of such
Securities is herein referred to as an "optional sinking fund payment." If
provided for by the terms of any Securities, the cash amount of any sinking
fund
payment may be subject to reduction as provided in Section 1602. Each sinking
fund payment shall be applied to the redemption of Securities as provided for
by
the terms of such Securities.
|
SECTION
1602.
|
Satisfaction
of Sinking Fund Payments with
Securities.
|
The
Company (1) may deliver Outstanding Securities of a series (other than any
previously called for redemption) and (2) may apply as a credit Securities
of a
series which have been (x) converted or (y) redeemed either at the election
of
the Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking
fund
payment with respect to any Securities of such series required to be made
pursuant to the terms of such Securities as and to the extent provided for
by
the terms of such Securities; provided, however, that the Securities to be
so
credited have not been previously so credited. The Securities to be so credited
shall be received and credited for such purpose by the Trustee at the Redemption
Price, as specified in the Securities so to be redeemed, for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
|
SECTION
1603.
|
Redemption
of Securities for Sinking Fund.
|
Not
less
than 35 days prior to each sinking fund payment date for any Securities, the
Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for such Securities pursuant
to
the terms of such Securities, the portion thereof, if any, which is to be
satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities pursuant to Section 1602 and
will also deliver to the Trustee any Securities to be so delivered. Not less
than 32 days prior to each such sinking fund payment date, the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in
the
manner specified in Section 1103 and cause notice of the redemption thereof
to
be given in the name of and at the expense of the Company in the manner provided
in Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
82
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.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, all as of the day and year first above written.
|
ISSUER:
|
||
|
ENERGY
XXI (BERMUDA) LIMITED
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
|
SUBSIDIARY
GUARANTORS:
|
||
|
[INSERT
SUBSIDIARY GUARANTORS]
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
83
|
TRUSTEE:
|
||
|
[TRUSTEE'S
NAME],
|
||
|
as
Trustee
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
84
SCHEDULE
I
SUBSIDIARY
GUARANTORS
|
subsidiary
|
state
of organization
|
[Insert
Subsidiary Guarantors]
Schedule
I-1
