Orion Marine Holdings, Inc.
Exhibit
4.3
Orion
Marine Holdings, Inc.
As
Issuer
The
Guarantors Party Hereto
As
Guarantors
to
_________________________
As
Trustee
INDENTURE
Dated
as of _____________
SENIOR
DEBT SECURITIES
|
Trust Indenture
Act Section
|
Indenture
Section
|
|
|
§
310 (a)(1)
|
609
|
|
|
(a)(2)
|
609
|
|
|
(a)(3)
|
Not
Applicable
|
|
|
(a)(4)
|
Not
Applicable
|
|
|
(b)
|
608
|
|
|
610
|
||
|
§
311 (a)
|
613
|
|
|
(b)
|
613
|
|
|
§
312 (a)
|
701
|
|
|
702
|
||
|
(b)
|
702
|
|
|
(c)
|
702
|
|
|
§
313 (a)
|
703
|
|
|
(b)
|
703
|
|
|
(c)
|
703
|
|
|
(d)
|
703
|
|
|
§
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
|
|
|
§
315 (a)
|
601
|
|
|
(b)
|
602
|
|
|
(c)
|
601
|
|
|
(d)
|
601
|
|
|
(e)
|
514
|
|
|
§
316 (a)
|
101
|
|
|
(a)(1)(A)
|
502
|
|
|
512
|
||
|
(a)(1)(B)
|
513
|
|
|
(a)(2)
|
Not Applicable
|
|
|
(b)
|
508
|
|
|
(c)
|
104
|
|
|
§
317 (a)(1)
|
503
|
|
|
(a)(2)
|
504
|
|
|
(b)
|
1003
|
|
|
§
318 (a)
|
107
|
NOTE: This
reconciliation and tie shall not, for any purpose, be deemed to be a part of the
Indenture.
-i-
TABLE
OF CONTENTS
|
Page
|
|||
|
ARTICLE
ONE
|
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
|
1
|
|
|
Section
101
|
Definitions
|
1
|
|
|
Section
102
|
Compliance
Certificates and Opinions
|
8
|
|
|
Section
103
|
Form
of Documents Delivered to Trustee
|
8
|
|
|
Section
104
|
Acts
of Holders; Record Dates
|
9
|
|
|
Section
105
|
Notices,
Etc., to Trustee, Company and the Guarantors
|
11
|
|
|
Section
106
|
Notice
to Holders; Waiver
|
11
|
|
|
Section
107
|
Conflict
with Trust Indenture Act
|
12
|
|
|
Section
108
|
Effect
of Headings and Table of Contents
|
12
|
|
|
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
|
|
|
Section
114
|
Counterparts
|
13
|
|
|
Section
115
|
Limited
Liability; Immunity of Shareholders, Partners, Trustees, Officers and
Agents of the Company and the Guarantors
|
13
|
|
|
ARTICLE
TWO
|
SECURITY
FORMS
|
14
|
|
|
Section
201
|
Forms
Generally
|
14
|
|
|
Section
202
|
Form
of Face of Security
|
14
|
|
|
Section
203
|
Form
of Reverse of Security
|
16
|
|
|
Section
204
|
Form
of Legend for Global Securities
|
19
|
|
|
Section
205
|
Form
of Guarantee
|
19
|
|
|
Section
206
|
Form
of Trustee's Certificate of Authentication
|
21
|
|
|
ARTICLE THREE
|
THE
SECURITIES
|
22
|
|
|
Section
301
|
Amount
Unlimited; Issuable in Series
|
22
|
|
|
Section
302
|
Denominations
|
24
|
|
|
Section
303
|
Execution,
Authentication, Delivery and Dating
|
25
|
|
|
Section
304
|
Temporary
Securities
|
26
|
|
|
Section
305
|
Registration,
Registration of Transfer and Exchange
|
27
|
|
|
Section
306
|
Mutilated,
Destroyed, Lost and Stolen Securities
|
29
|
|
|
Section
307
|
Payment
of Interest; Interest Rights Preserved
|
29
|
|
|
Section
308
|
Persons
Deemed Owners
|
31
|
|
|
Section
309
|
Cancellation
|
31
|
|
|
Section
310
|
Computation
of Interest
|
31
|
|
|
Section
311
|
CUSIP
Numbers
|
31
|
|
|
ARTICLE
FOUR
|
SATISFACTION
AND DISCHARGE
|
32
|
|
|
Section
401
|
Satisfaction
and Discharge of Indenture
|
32
|
NOTE: This table of contents shall not, for any
purpose, be deemed to be a part of the Indenture.
-ii-
TABLE
OF CONTENTS
(continued)
|
Page
|
|||
|
Section
402
|
Application
of Trust Money
|
33
|
|
|
ARTICLE
FIVE
|
REMEDIES
|
33
|
|
|
Section
501
|
Events
of Default
|
33
|
|
|
Section
502
|
Acceleration
of Maturity; Rescission and Annulment
|
35
|
|
|
Section
503
|
Collection
of Indebtedness and Suits for Enforcement by Trustee
|
36
|
|
|
Section
504
|
Trustee
May File Proofs of Claim
|
37
|
|
|
Section
505
|
Trustee
May Enforce Claims Without Possession of Securities
|
37
|
|
|
Section
506
|
Application
of Money Collected
|
37
|
|
|
Section
507
|
Limitation
on Suits
|
38
|
|
|
Section
508
|
Unconditional
Right of Holders to Receive Principal, Premium and
Interest
|
38
|
|
|
Section
509
|
Restoration
of Rights and Remedies
|
38
|
|
|
Section
510
|
Rights
and Remedies Cumulative
|
39
|
|
|
Section
511
|
Delay
or Omission Not Waiver
|
39
|
|
|
Section
512
|
Control
by Holders
|
39
|
|
|
Section
513
|
Waiver
of Past Defaults
|
39
|
|
|
Section
514
|
Undertaking
for Costs
|
40
|
|
|
Section
515
|
Waiver
of Usury, Stay or Extension Laws
|
40
|
|
|
ARTICLE
SIX
|
THE
TRUSTEE
|
40
|
|
|
Section
601
|
Certain
Duties and Responsibilities
|
40
|
|
|
Section
602
|
Notice
of Defaults
|
41
|
|
|
Section
603
|
Certain
Rights of Trustee
|
41
|
|
|
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
|
|
|
Section
612
|
Merger,
Conversion, Consolidation or Succession to Business
|
46
|
|
|
Section
613
|
Preferential
Collection of Claims Against Company
|
47
|
|
|
Section
614
|
Appointment
of Authenticating Agent
|
47
|
|
|
ARTICLE
SEVEN
|
HOLDERS'
LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTORS
|
48
|
|
|
Section
701
|
Company
and Guarantors to Furnish Trustee Names and Addresses of
Holders
|
48
|
|
|
Section
702
|
Preservation
of Information; Communications to Holders
|
49
|
|
|
Section
703
|
Reports
by Trustee
|
|
49
|
-iii-
TABLE
OF CONTENTS
(continued)
|
Page
|
|||
|
Section
704
|
Reports
by Company and Guarantors
|
49
|
|
|
ARTICLE
EIGHT
|
CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE
|
50
|
|
|
Section
801
|
Company
and Guarantors May Consolidate, Etc., Only on Certain
Terms
|
50
|
|
|
Section
802
|
Successor
Substituted
|
51
|
|
|
ARTICLE
NINE
|
SUPPLEMENTAL
INDENTURES
|
51
|
|
|
Section
901
|
Supplemental
Indentures Without Consent of Holders
|
51
|
|
|
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
|
54
|
|
|
ARTICLE
TEN
|
COVENANTS
|
55
|
|
|
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
|
55
|
|
|
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
|
Insurance
|
58
|
|
|
Section
1009
|
Provision
of Financial Information
|
58
|
|
|
Section
1010
|
Waiver
of Certain Covenants
|
58
|
|
|
Section
1011
|
Calculation
of Original Issue Discount
|
59
|
|
|
ARTICLE
ELEVEN
|
REDEMPTION
OF SECURITIES
|
59
|
|
|
Section
1101
|
Applicability
of Article
|
59
|
|
|
Section
1102
|
Election
to Redeem; Notice to Trustee
|
59
|
|
|
Section
1103
|
Selection
by Trustee of Securities to Be Redeemed
|
59
|
|
|
Section
1104
|
Notice
of Redemption
|
60
|
|
|
Section
1105
|
Deposit
of Redemption Price
|
61
|
|
|
Section
1106
|
Securities
Payable on Redemption Date
|
61
|
|
|
Section
1107
|
Securities
Redeemed in Part
|
61
|
|
|
ARTICLE
TWELVE
|
SINKING
FUNDS
|
61
|
|
|
Section
1201
|
Applicability
of Article
|
61
|
|
|
Section
1202
|
Satisfaction
of Sinking Fund Payments with Securities
|
62
|
|
|
Section
1203
|
Redemption
of Securities for Sinking Fund
|
|
62
|
-iv-
TABLE
OF CONTENTS
(continued)
|
Page
|
|||
|
ARTICLE
THIRTEEN
|
DEFEASANCE
AND COVENANT DEFEASANCE
|
62
|
|
|
Section
1301
|
Company's
Option to Effect Defeasance or Covenant Defeasance
|
62
|
|
|
Section
1302
|
Defeasance
and Discharge
|
63
|
|
|
Section
1303
|
Covenant
Defeasance
|
63
|
|
|
Section
1304
|
Conditions
to Defeasance or Covenant Defeasance
|
64
|
|
|
Section
1305
|
Deposited
Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous
Provisions
|
65
|
|
|
Section
1306
|
Reinstatement
|
66
|
|
|
ARTICLE
FOURTEEN
|
GUARANTEE
|
66
|
|
|
Section
1401
|
The
Xxxxxxxxx
|
|
00
|
-x-
XXXXXXXXX,
dated as of ___________, between Orion Marine Group, Inc., a corporation duly
organized and existing under the laws of the State of Delaware (herein called
the "Company"), having its principal office at 00000 Xxxxx Xx., Xxxxxxx, Xxxxx
00000, the subsidiary guarantors party hereto (the "Guarantors") and
________________________, a _________________ duly organized and existing under
the laws of ____________________, as Trustee (herein called the
"Trustee").
RECITALS
OF THE COMPANY
WHEREAS,
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;
WHEREAS,
the Guarantors, through the Company, have duly authorized the execution and
delivery of this Indenture to provide for the guarantee time to time of the
Company's Securities (herein called the "Guarantee"); and
WHEREAS,
all things necessary to make this Indenture a valid agreement of the Company and
the Guarantors, 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 One have the meanings assigned to them in this
Article One 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 in the United
States of America at the date of such computation;
(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" and "hereunder" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or other
subdivision.
"Act",
when used with respect to any Holder, has the meaning specified in Section
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.
"Applicable
Procedures" of a Depositary means, with respect to any matter at any time, the
policies and procedures of such Depositary, if any, that are applicable to such
matter at such time.
"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 either the board of directors of the Company or any duly
authorized committee of that board.
"Board
Resolution" means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
"Business
Day", when used with respect to any Place of Payment, means each Monday,
Tuesday, Wednesday, Thursday and Friday that is not a day on which banking
institutions in that Place of Payment are authorized or obligated by law or
executive order to close.
"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, par value $0.01 per share, of the
Company.
"Company"
means the Person named as the "Company" in the first paragraph of this
instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company
Request" or "Company Order" means a written request or order signed in the name
of the Company by its Chairman of the Board, its President or a Vice President,
and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Corporate
Trust Office" means the principal office of the Trustee in
______________________ at which at any particular time its corporate trust
business shall be administered.
"corporation"
means a corporation, association, company, limited liability company,
joint-stock company or business trust.
"Covenant
Defeasance" has the meaning specified in Section 1303.
"Defaulted
Interest" has the meaning specified in Section 307.
"Defeasance"
has the meaning specified in Section 1302.
"Depositary"
means, with respect to Securities of any series issuable in whole or in part in
the form of one or more Global Securities, any Person 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 204 (or such legend as may be
specified as contemplated by Section 301 for such Securities).
"Guarantee"
means the unconditional guarantee of the payment of the principal of, or any
premium or interest on, the Guaranteed Securities by one or more Guarantors, as
more fully set forth in Article Fourteen.
"Guaranteed
Securities" means a series of Securities made subject to a Guarantee (as set
forth in Article Fourteen) pursuant to Section 301.
-3-
"Guarantor"
means each Person named as a "Guarantor" 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 "Guarantor" shall mean
such successor Person.
"Guarantors'
Board Resolutions" mean copies of the respective resolutions certified by the
respective Secretary or an Assistant Secretary of the respective Guarantors, and
to be in full force and effect on the date of such certification, and delivered
to the Trustee.
"Guarantors'
Officers' Certificates" means the respective certificates signed by any two
Officers or by any Officer and an Assistant Treasurer or an Assistant Secretary
of the respective Guarantors or any Person designated by an Officer in writing
as authorized to execute and deliver each such certificate, 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 such Guarantor.
"Guarantor
Request" or "Guarantor Order" means a written request or order signed in the
name of each Guarantor by the Chairman of the Board, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Controller, the
Secretary or an Assistant Secretary of each Guarantor, and delivered to the
Trustee.
"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.
"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.
-4-
"Notice
of Default" means a written notice of the kind specified in Section 501(4) or
501(5).
"Officers'
Certificate" means a certificate signed by the Chairman of the Board, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary, of the Company or any person designated by
an Officer in writing as authorized to execute and deliver such certificate, 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 a written opinion of counsel, who may be counsel for the
Company or the Guarantors, as the case may be.
"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 or the Guarantors) in trust or set aside and segregated in trust by the
Company or the Guarantors (if the Company or the Guarantors shall act as its or
their 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;
(3) Securities
as to which Defeasance has been effected pursuant to Section 1302;
and
(4) Securities
that 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;
-5-
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, the Guarantors or any other obligor upon the Securities or any
Affiliate of the Company, the Guarantors 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 a Responsible Officer of 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, the Guarantors or any other obligor upon the
Securities or any Affiliate of the Company, the Guarantors 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.
"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.
-6-
"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.
"Responsible
Officer", when used with respect to the Trustee, means any vice president, any
assistant treasurer, any trust officer or assistant trust officer or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of his or her knowledge of and familiarity with the particular
subject.
"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.
"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"
means, with respect to any Person, a corporation more than 50% 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 other Subsidiaries of such Person. For the purposes
of this definition, "voting stock" means stock that ordinarily has voting power
for the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
"Trust
Indenture Act" means the 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.
-7-
"U.S.
Government Obligation" has the meaning specified in Section 1304.
"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".
SECTION
102 Compliance Certificates and
Opinions.
Upon any
application or request by the Company or the Guarantors to the Trustee to take
any action under any provision of this Indenture, the Company or the Guarantors,
as the case may be, 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 Guarantors' Officers' Certificates, if to be
given by the Guarantors, 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.
Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (except for certificates provided for in Section
1004) 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 or she has made such
examination or investigation as is necessary to enable him or her to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(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.
-8-
Any
certificate or opinion of an officer of the Company or any Guarantor, as the
case may be, may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such certificate or opinion
of counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
SECTION
104 Acts of Holders; Record
Dates.
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 may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company and to
the Guarantors. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Company and the Guarantors, if made in the manner provided
in this Section 104.
The fact
and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
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, the Company or the
Guarantors in reliance thereon, whether or not notation of such action is made
upon such Security.
-9-
The
Company may, in the circumstances permitted by the Trust Indenture Act, 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.
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 104, 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 104, 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.
-10-
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, Company
and the Guarantors.
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,
(1) the
Trustee by any Holder, by the Company or by the Guarantors shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office,
Attention:_______________________, or
(2) the
Company or the Guarantors by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company or the
Guarantors, as the case may be, addressed to such party 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 or
the Guarantors, as the case may be.
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 or her 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.
-11-
Where
this Indenture provides for notice of any event to a Holder of a Global
Security, such notice shall be sufficiently given if given to the Depositary for
such Security (or its designee), pursuant to its Applicable Procedures, not
later than the latest date (if any), and not earlier than the earliest date (if
any), prescribed for the giving of such notice.
SECTION
107 Conflict with Trust Indenture
Act.
If any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that 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 that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may
be.
SECTION
108 Effect of Headings and Table of
Contents.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION
109 Successors and
Assigns.
All
covenants and agreements in this Indenture by the Company or the Guarantors, as
the case may be, shall bind its or their successors and assigns, whether so
expressed or not.
SECTION
110 Separability
Clause.
In case
any provision in this Indenture or in the Securities shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION
111 Benefits of
Indenture.
Nothing
in this Indenture or in the Securities, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder and the
Holders, any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION
112 Governing Law.
This
Indenture and the Securities 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 or 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 or
Redemption Date, or at the Maturity, provided that no interest shall accrue with
respect to such payment for the period from and after such Interest Payment
Date, Redemption Date or Maturity, as the case may be to the date of such
payment.
-12-
SECTION
114 Counterparts
This
Indenture may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
SECTION
115 Limited Liability; Immunity of
Shareholders, Partners, Trustees, Officers and Agents of the Company and the
Guarantors.
Notwithstanding
any other provision of this Indenture or of the Securities of any series or of
the Guarantees to the contrary, no recourse shall be had, whether by levy or
execution or otherwise, for the payment of any sums due under any Security,
including, without limitation, the principal of, premium, if any, or interest
payable under any Security, or for the payment or performance of any obligation,
covenant or agreement under, or for any claim based on, this Indenture or any
Security or otherwise in respect of this Indenture or any Security, against (i)
the Company, the Company's assets or against any principal, shareholder, member,
officer, director, trustee or employee of the Company or any successor, or (ii)
the Guarantors, any partner of any Guarantor, whether limited or general, or any
successor of any such partner or any such partner's or successor's assets or
against any principal, shareholder, member, officer, director, trustee or
employee of any such partner or successor, under any rule of law, statute or
constitution, or by the enforcement of any assessment or penalty or by any legal
or equitable proceeding or otherwise, or any principal, shareholder, member,
officer, director, trustee or employee of any Guarantor, nor shall any of such
parties be personally liable for any such amounts, obligations or claims, or
liable for any deficiency judgment based thereon or with respect thereto, it
being expressly understood that the sole remedies hereunder or under any other
document with respect to the Securities against such parties with respect to
such amounts, obligations or claims shall be against the Issuer or, in the case
of a Guarantee thereof, the Guarantors, as the case may be, and that all such
liability of such parties is and is to be, by the acceptance hereof, expressly
waived and released as a condition of, and as consideration for, the execution
of this Indenture and by the acceptance of the Securities and, if applicable,
the Guarantees, by the Holders and as part of the consideration for the issue of
the Securities.
-13-
ARTICLE
TWO
SECURITY
FORMS
SECTION
201 Forms Generally.
The
Securities of each series shall be in substantially the form set forth in this
Article Two, 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, 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.
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.]
ORION
MARINE GROUP, INC.
|
No.
___________
|
$_____________
|
|
Cusip
No. _____________
|
ORION
MARINE GROUP, INC., a corporation duly organized and existing under the laws of
Delaware (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 this 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 _____________ and at the Maturity thereof, at the rate of ____% per
annum, until the principal hereof is paid or made available for payment, [if applicable, insert — ,
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 so payable, but not
punctually paid or duly provided for, on any Interest Payment Date, 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].
-14-
[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.]
[If applicable, insert – This
Security is a Guaranteed Security within the meaning of the Indenture.]
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, against surrender of this Security in the case of any payment due at the
Maturity of the principal hereof (other than any payment of interest that first
becomes payable on a day other than an Interest Payment Date); 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; and provided,
further, that if this Security is a Global Security, payment may be made
pursuant to the Applicable Procedures of the Depositary as permitted in said
Indenture.
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 [if applicable, insert – the
Guarantee of the Guarantors (as defined on the reverse hereof) or] be valid or obligatory for
any purpose.
IN
WITNESS WHEREOF, [if applicable, insert – each
of] the Company [if applicable, insert – and
the Guarantors have]
[has] caused this instrument to be
duly executed under seal.
|
ORION
MARINE GROUP, INC.
|
|||
|
By
|
|||
|
Attest:
|
|||
-15-
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 ______________ (herein called the "Indenture", which term
shall have the meaning assigned to it in such instrument), among the Company,
the Guarantors named therein (herein called the "Guarantors", which term
includes any successor guarantor under the Indenture) in respect of any
Guaranteed Securities and ______________, 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 Guarantors, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof [if applicable, insert – ,
[initially] limited in aggregate principal amount to $[__________] provided that the Company
may, without the consent of any Holder, at any time and from time to time
increase the initial principal amount].
[If applicable, insert — The
Securities of this series are subject to redemption upon not less than 30 days'
nor more than 60 days' notice by mail, [if applicable, insert — (1)
on _______________ in any year commencing with the year _____ and ending with
the year _____ through operation of the sinking fund for this series at a
Redemption Price equal to 100% of the principal amount, and (2)] at any time [if applicable, insert — on or
after _____________, 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 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 [(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
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].]
-16-
[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 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, the
Guarantors and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company, the Guarantors 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 (i) permitting the Holders of not less than a
majority in principal amount of the Securities of any series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company or the Guarantors, as the case may be, with certain
provisions of the Indenture with respect to such series and (ii) permitting the
Holders of a majority in principal amount of the Securities at the time
Outstanding of any series to be affected under the Indenture (with each such
series considered separately for this purpose), on behalf of the Holders of all
Securities of such series, to waive 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 $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal amount of Securities
of this series and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior to
due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in
whose name this Security is registered as the owner hereof for all purposes,
whether or not this Security be overdue, and neither the Company, the Trustee
nor any such agent shall be affected by notice to the contrary.
[If applicable, insert – This
Security is [not] a Guaranteed Security within
the meaning of, and [is
not] subject to the
provisions applicable to the Guarantors [thereof] contained in, the
Indenture. [Reference is made to Article
Fourteen of the Indenture and to the Guarantee endorsed on this Security for a
statement of the respective rights, duties and obligations thereunder of the
Guarantors, the Trustee and the Holders.]]
-18-
[If applicable, insert – This
Security is a Global Security and is subject to the provisions of the Indenture
relating to Global Securities, including the limitations in Section 305 thereof
on transfers and exchanges of Global Securities.]
[If applicable, insert –
Interest on the principal balance of this Security shall be calculated on the
basis of a [365- or
366-day year, as appropriate, for the actual number of days elapsed] [360-day year of twelve 30-day
months]]
THIS
SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
All terms
used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture.
SECTION
204 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
205 Form of
Guarantee.
If the
Securities of any series are entitled to the benefits of Article Fourteen of
this Indenture, there shall be endorsed on such Security a guarantee in
substantially the following form, or in such other form as shall be established
by or pursuant to a Board Resolution or in 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:
-19-
FORM OF
GUARANTEE
For value
received, the undersigned hereby fully and unconditionally guarantees to the
Holder of this Security the cash payments in United States dollars of principal
of and interest on this Security in the amounts and at the time when due and
interest on the overdue principal and interest, if any, on this Security, if
lawful, and the payment of all other obligations of the Issuer under the
Indenture or the Security, to the Holder of this Security and the Trustee, all
in accordance with and subject to the terms and limitations of this Security,
Article Fourteen of the Indenture and this Guarantee. This Guarantee
will become effective in accordance with Article Fourteen of the Indenture and
its terms shall be evidenced therein. The validity and enforceability
of any Guarantee shall not be affected by the fact that it is not affixed to any
particular Security. Capitalized terms used but not defined herein
shall have the meanings ascribed to them in the Indenture, dated as of
____________, by and among Orion Marine Holdings, Inc., the undersigned and
__________________________, as Trustee, as amended or supplemented (the
"Indenture").
The
obligations of the undersigned to the Holders of this Security and to the
Trustee pursuant to the Guarantee and the Indenture are expressly set forth in
Article Fourteen of the Indenture and reference is hereby made to the Indenture
for the precise terms of the Guarantee and all of the other provisions of the
Indenture to which this Guarantee relates.
THIS
GUARANTEE WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW.
This
Guarantee is subject to release upon the terms set forth in the
Indenture.
IN
WITNESS WHEREOF, the undersigned Guarantors have caused this Guarantee to be
duly executed.
|
Dated:
|
X.
XXXXXX CONSTRUCTION, LLC
|
||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
KING
XXXXXX MARINE SERVICE, L.P.
|
|||
|
By:
|
KFMSGP,
LLC
|
||
|
its
general partner
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
XXXXXXX
MARINE CONSTRUCTION, INC.
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
-20-
|
ORION
ADMINISTRATIVE SERVICES, INC.
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
ORION
CONSTRUCTION, L.P.
|
|||
|
By:
|
OCGP,
LLC
|
||
|
its
general partner
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
ORION
DREDGING SERVICES, LLC
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
|
By:
|
ORION
DREDGING SERVICES, LLC
|
||
|
its
sole member
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
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 herein and referred to in the
within-mentioned Indenture.
|
As
Trustee
|
||
|
By
|
||
|
Authorized
Signatory
|
||
-21-
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, if applicable, Guarantors' Board Resolutions
(with respect to Guaranteed Securities) and, subject to Section 303, set forth,
or determined in the manner provided, in an Officers' Certificate and, if
applicable, Guarantors' Officers' Certificates (with respect to Guaranteed
Securities), 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) 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);
(3) 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;
(4) the
date or dates on which the principal of any Securities of the series is
payable;
(5) 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;
(6) the
place or places where the principal of and any premium and interest on any
Securities of the series shall be payable and the manner in which any payment
may be made;
(7) 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;
-22-
(8) 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;
(9) if
other than denominations of $1,000 and any integral multiple thereof, the
denominations in which any Securities of the series shall be
issuable;
(10) if
the amount of principal of or any premium or interest on any Securities of the
series may be determined with reference to a financial or economic measure or
pursuant to a formula, the manner in which such amounts shall be
determined;
(11) 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 the purposes of making payment in the
currency of the United States of America and applying the definition of
"Outstanding" in Section 101;
(12) 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);
(13) 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;
(14) 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);
(15) if
applicable, that the Securities of the series shall be subject to either or both
of Defeasance or Covenant Defeasance as provided in Article Thirteen; provided that no series of
Securities that is convertible for shares of Common Stock or other securities
pursuant to Section 301(19) shall be subject to Defeasance pursuant to
Section 1302;
-23-
(16) 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 Depositaries for such Global Securities, the form of any legend or
legends which shall be borne by any such Global Security in addition to or in
lieu of that set forth in Section 204 and any addition to, elimination of or
other changes in the circumstances 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;
(17) any
addition to, elimination of or other 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;
(18) any
addition to, elimination of or other change in the covenants set forth in
Article Ten or elsewhere herein which applies to Securities of the
series;
(19) the
terms and conditions, if any, pursuant to which the Securities are convertible
for shares of Common Stock or other securities;
(20) if
the Securities of the series are to be Guaranteed Securities; and
(21) 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. All Securities of
any one series need not be issued at one time and, unless otherwise provided or
contemplated by this Section 301 with respect to a series of Securities,
additional Securities of a series may be issued at the option of the Company,
without the consent of any Holder, at any time and from time to
time.
If any of
the terms of the series are established by action taken pursuant to a Board
Resolution or, if applicable, Guarantors' Board Resolutions, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company or by the Secretary or Assistant Secretary of
the respective Guarantors, as the case may be, and delivered to the Trustee at
or prior to the delivery of the Officers' Certificate or Guarantors' Officers'
Certificates setting forth the terms of the series.
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.
-24-
SECTION
303 Execution, Authentication, Delivery
and Dating.
The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Secretary, one of its Assistant Secretaries
or other authorized Person of the Company, and if such Securities are Guaranteed
Securities, on behalf of each Guarantor by the Chairman of the Board, the
President or one of the Vice Presidents of such Guarantor, under the respective
corporate or partnership seal of each Guarantor, as the case may be, reproduced
thereon attested by the Secretary, one of the Assistant Secretaries or other
authorized Person of the Company. 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 or the Guarantors shall bind the Company or
the Guarantors, as the case may be, 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 Guarantees executed by the 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 and, if such Securities are Guaranteed Securities, and the terms
thereof have been established by or pursuant to Guarantors' Board Resolutions,
as permitted by Section 301, that such terms have been established in conformity
with the provisions of this Indenture;
(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 enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles; and
-25-
(4) that
such Guarantees, when the Securities upon which they shall have been endorsed
shall have been 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 each Guarantor
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.
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, including when the size
of an Outstanding series of Securities is increased as contemplated by Section
301, it shall not be necessary to deliver the Officers' Certificate or
Guarantors' Officers' Certificates 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 Guarantee endorsed thereon 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 and the
Guarantors, if such Securities are Guaranteed Securities, may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, if applicable, having
endorsed thereon the Guarantees duly executed by the Guarantors substantially of
the tenor of the definitive Guarantees and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as evidenced by their execution of such Securities
and, if applicable, the Guarantees.
-26-
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 and the Guarantors, if such Securities are Guaranteed
Securities, 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 the Guarantees duly executed by the
Guarantors substantially of the tenor of the definitive Guarantees. 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.
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, 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 and the Guarantors, if such Securities are Guaranteed
Securities, shall execute, and the Trustee shall authenticate and deliver, the
Securities that the Holder making the exchange is entitled to
receive.
All
Securities issued upon any registration of transfer or exchange of Securities
shall be the valid obligations of the Company and the Guarantors, if such
Securities are Guaranteed Securities, respectively, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every
Security presented or surrendered for registration of transfer or 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.
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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 Sections 304, 906 or 1107 not involving any transfer.
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, and subject to such applicable
provisions, if any, as may be specified as contemplated by Section 301, 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 has notified the Company that it is
unwilling or unable or no longer permitted under applicable law to continue as
Depositary for such Global Security or (B) there shall have occurred and be
continuing an Event of Default with respect to such Global Security or (C) the
Company so directs the Trustee by Company Order or (D) 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 and to such applicable provisions, if any, as may be
specified as contemplated by Section 301, 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, Sections 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.
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SECTION
306 Mutilated, Destroyed, Lost and
Stolen Securities.
If any
mutilated Security is surrendered to the Trustee, the Company and the
Guarantors, if such Securities are Guaranteed Securities, shall execute, and the
Trustee shall authenticate and deliver in exchange therefor, a new Security of
the same series and of like tenor and principal amount and, if applicable, a
Guarantee endorsed thereon, and bearing a number not contemporaneously
outstanding.
If there
shall be delivered to the Company, the Guarantors, if applicable, and the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft of
any Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security has been acquired by
a bona fide purchaser, the Company and the Guarantors, if such Securities are
Guaranteed Securities, shall execute, and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and, if applicable,
having a Guarantee endorsed thereon, and bearing a number not contemporaneously
outstanding.
In case
any such mutilated, destroyed, lost or stolen Security has become or is about to
become due and payable, the Company in its discretion may, instead of issuing a
new Security, pay such Security.
Upon the
issuance of any new Security under this Section 306, 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 306 in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company and the Guarantors, if such Securities are
Guaranteed Securities, respectively, 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 306 are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities.
SECTION
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 that 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 or, if no
business is conducted by the Trustee at its Corporate Trust Office on such date,
at 5:00 p.m., New York City time, on such date.
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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:
(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.
Except as
may be provided in this Section 307 or as contemplated in Section 301 with
respect to any Securities of a series, the Person to whom interest shall be
payable on any Security that first becomes payable on a day that is not an
Interest Payment Date shall be the Holder of such Security on the day such
interest is paid.
Subject
to the foregoing provisions of this Section 307, 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.
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SECTION
308 Persons Deemed
Owners.
Prior to
due presentment of a Security for registration of transfer, the Company, the
Guarantors, the Trustee and any agent of the Company, the 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, the Guarantors, the Trustee nor any agent of the Company,
the Guarantors or the Trustee shall be affected by notice to the
contrary.
SECTION
309 Cancellation.
All
Securities surrendered for payment, redemption, registration of transfer or
exchange or for credit against any sinking fund payment shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company or the Guarantors may at any time deliver
to the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company or the Guarantors 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 or the Guarantors have 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 309, 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.
SECTION
311 CUSIP Numbers.
The
Company in issuing the Securities may use "CUSIP" numbers (if then generally in
use), and, if so, the Trustee shall use "CUSIP" numbers in notices of redemption
as a convenience to Holders, provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption and that reliance
may be placed only on the other identification numbers printed on the
Securities. Any such redemption shall not be affected by any defect
in or omission of such numbers.
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ARTICLE
FOUR
SATISFACTION
AND DISCHARGE
SECTION
401 Satisfaction and Discharge of
Indenture.
This
Indenture shall upon Company Request cease to be of further effect (except as to
any surviving rights of registration of transfer or exchange of any Security
expressly provided for herein or in the terms of such Security), 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 theretofore authenticated and delivered (other than
(i) Securities that have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306 and (ii) Securities for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company or the Guarantors 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 not theretofore delivered to the Trustee for
cancellation
(i) have
become due and payable, or
(ii) will
become due and payable at their Stated Maturity within one year, or
(iii) are
to be called for redemption within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company,
and the
Company or the Guarantors, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds in trust for
the purpose money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and any premium and interest to the date of such
deposit (in the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the
Company has paid or caused to be paid all other sums payable hereunder by the
Company; 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 have been complied
with.
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Notwithstanding
the satisfaction and discharge of this Indenture, the obligations of the Company
and the Guarantors, if applicable, to the Trustee under Section 607, 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 401, 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
or the Guarantors acting as its or their 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.
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 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 or warranty of the Company or the
Guarantors (if any Guaranteed Securities are Outstanding) in this Indenture
(other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section 501 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 and the Guarantors by the Trustee or to the Company, the
Guarantors 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
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(5) a
default under any bond, debenture, note or other evidence of indebtedness for
money borrowed by the Company (including a default with respect to Securities of
any series other than that series) having an aggregate principal amount
outstanding of at least $15,000,000, or under any mortgage, indenture or
instrument (including this Indenture) under which there may be issued or by
which there may be secured or evidenced any indebtedness for money borrowed by
the Company having an aggregate principal amount outstanding of at least
$15,000,000, whether such indebtedness now exists or shall hereafter be created,
which default (A) shall constitute a failure to pay any portion of the
principal of such indebtedness when due and payable after the expiration of any
applicable grace period with respect thereto or (B) shall have resulted in
such indebtedness becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, without, in the case of
Clause (A), such indebtedness having been discharged or without, in the
case of Clause (B), such indebtedness having been discharged or such
acceleration having been rescinded or annulled, in each such case within a period of 10
days after there shall have 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 and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be rescinded or
annulled, as the case may be, and stating that such notice is a "Notice of
Default" hereunder; provided, however, that, subject to the
provisions of Sections 601 and 602, the Trustee shall not be deemed to have
knowledge of such default unless either (A) a Responsible Officer of the Trustee
shall have knowledge of such default or (B) the Trustee shall have received
written notice thereof from the Company, from any Holder, from the holder of any
such indebtedness or from the trustee under any such mortgage, indenture or
other instrument; or
(6) the
entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Company or the Guarantors (if any Guaranteed
Securities are Outstanding) 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 or the Guarantors (if
any Guaranteed Securities are Outstanding) a bankrupt or insolvent, or approving
as properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or the Guarantors (if any Guaranteed
Securities are Outstanding) under any applicable Federal or State law, or
appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or the Guarantors (if any Guaranteed
Securities are Outstanding) or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 60 consecutive days; or
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(7) the
commencement by the Company or the Guarantors (if any Guaranteed Securities are
Outstanding) 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 to the entry of a decree or order for relief in respect of the
Company or the Guarantors (if any Guaranteed Securities are Outstanding) 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 the filing by it of a
petition or answer or consent seeking reorganization or relief under any
applicable Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or the Guarantors (if any Guaranteed Securities are Outstanding) or of
any substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its inability to
pay its debts generally as they become due, or the taking of corporate action by
the Company or the Guarantors (if any Guaranteed Securities are Outstanding) in
furtherance of any such action; or
(8) 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 specified in Section 501(6) or
501(7)) with respect to Securities of any series at the time Outstanding occurs
and is continuing, then in every such case the Trustee, upon receipt of a
request from the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series, shall, 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 or the
Guarantors (if any Guaranteed Securities are Outstanding) (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 specified in Section 501(6) or 501(7) 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 Five
provided, the Holders of a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Company, the Guarantors (if
any Guaranteed Securities are Outstanding) and the Trustee, may rescind and
annul such declaration and its consequences if:
(1) the
Company or the Guarantors have paid or deposited with the Trustee a sum
sufficient to pay:
(A) all
overdue interest on all Securities of that series,
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(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;
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 have 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.
-36-
SECTION
504 Trustee May File Proofs of
Claim.
In case
of any judicial proceeding relative to the Company, the Guarantors (if any
Guaranteed Securities are Outstanding) (or any other obligor upon the
Securities), its property or its creditors, the Trustee shall be entitled and
empowered, by intervention in such proceeding or otherwise, to take any and all
actions authorized under 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.
No
provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; 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 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 Five shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal 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; and
SECOND: To
the payment of the amounts then due and unpaid for principal of and any premium
and interest on the Securities in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for principal
and any premium and interest, respectively.
-37-
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;
(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 indemnity reasonably satisfactory
to the Trustee against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(5) no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount of
the Outstanding Securities of 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, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
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 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.
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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.
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 Five 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, or
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(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 affected.
Upon any
such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon.
SECTION
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 that
neither this Section 514 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 Trustee, the Company or the
Guarantors.
SECTION
515 Waiver of Usury, Stay or Extension
Laws.
Each of
the Company and the Guarantors, in respect of Guaranteed Securities, 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 the Company and the Guarantors, in respect of Guaranteed
Securities (to the extent that they may lawfully do so) hereby expressly waive
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 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 601.
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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(4) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section 602,
the term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
SECTION
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 or the Guarantors mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order or Guarantor
Request or Guarantor Order, as the case may be, and any resolution of the Board
of Directors shall be sufficiently evidenced by a Board Resolution or
Guarantors' Board Resolutions, as applicable;
(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 or, if such matter pertains to the Guarantors, Guarantors' Officers'
Certificates;
(4) the
Trustee may consult with counsel of its selection and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(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 security or indemnity reasonably satisfactory to the Trustee 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 and the Guarantors (if any Guaranteed
Securities are Outstanding), personally or by agent or attorney;
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(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;
(8) the
Trustee shall not be liable for any action taken, suffered, or omitted to be
taken by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture;
(9) the
Trustee shall not be deemed to have notice of any default or Event of Default
unless a Responsible Officer of the Trustee has actual knowledge thereof or
unless written notice of any event which is in fact such a default is received
by the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Securities and this Indenture;
(10) the
rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and
shall be enforceable by, the Trustee in each of its capacities
hereunder;
(11) the
Trustee may request that the Company deliver an Officers' Certificate setting
forth the names of individuals and or titles of officers authorized at such time
to take specified actions pursuant to this Indenture, which Officers'
Certificate may be signed by any person authorized to sign an Officers’
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded; and
(12) the
Trustee may request that each Guarantor deliver Guarantors' Officers'
Certificates setting forth the names of individuals and or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
each of which Guarantors' Officers' Certificates may be signed by any person
authorized to sign a Guarantor's Officers' Certificate, including any person
specified as so authorized in any such certificate previously delivered and not
superseded.
SECTION
604 Not Responsible for Recitals or
Issuance of Securities.
The
recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company
or the Guarantors, 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.
Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of Securities or the proceeds
thereof.
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SECTION
605 May Hold
Securities.
The
Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or
any other agent of the Company or the Guarantors, 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 or the Guarantors 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 in
writing with the Company or the Guarantors, as the case may be.
SECTION
607 Compensation and
Reimbursement.
The
Company agrees:
(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 and any predecessor Trustee for, and to hold it harmless
against, any and all loss, liability or expense including taxes (other than
taxes imposed on the income of the Trustee) 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.
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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 609
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 609, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article Six.
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 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.
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 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,
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.
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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 or removal, the Trustee resigning or being removed may
petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
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 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, the Guarantors 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.
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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 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, the Guarantors 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 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 Six.
SECTION
612 Merger, Conversion, Consolidation or
Succession to Business.
Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article Six, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such authenticating Trustee may adopt such authentication and
deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
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SECTION
613 Preferential Collection of Claims
Against Company.
If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Securities), the Trustee shall be subject to the provisions of
the Trust Indenture Act regarding the collection of claims against the Company
(or any such other obligor).
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 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 corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as 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 614, 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 614, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section
614.
Any
corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any corporation succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An
Authenticating Agent may resign at any time by giving written notice thereof to
the Trustee and 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 614, 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 614.
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The
Trustee agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 607 as the Company and the
Authenticating Agent shall from time to time agree in writing.
If an
appointment with respect to one or more series is made pursuant to this Section
614, 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.
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As
Trustee
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By
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As
Authenticating Agent
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By
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ARTICLE
SEVEN
HOLDERS'
LISTS AND REPORTS BY TRUSTEE, COMPANY AND GUARANTORS
SECTION
701 Company and Guarantors to Furnish
Trustee Names and Addresses of Holders.
The
Company and the Guarantors (with respect to Securities of each Series that are
Guaranteed Securities) will furnish or cause to be furnished to the
Trustee:
(1) semi-annually,
not later than March 15 and September 15 in each year, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of
Securities of each series as of the preceding March 1 or September 1,
as the case may be, and
(2) at
such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company or the Guarantors (with respect to Securities of each
Series that are Guaranteed Securities) 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.
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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, the Guarantors and the Trustee that none of the Company, the Guarantors
or the Trustee or 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.
Reports
so required to be transmitted at stated intervals of not more than 12 months
shall be transmitted within 60 days after the first date of issuance of
Securities and on each anniversary of such date.
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 or the Guarantors. The Company will notify
the Trustee when any Securities are listed on any stock exchange.
SECTION
704 Reports by Company and
Guarantors.
The
Company and, if Guaranteed Securities are Outstanding, the 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. If the Company is not required to file with the
Commission information, documents or reports pursuant to either of those
sections of the Exchange Act, then it will file with the Trustee and the
Commission such reports, if any, as may be prescribed by the Commission at such
time. If any Guarantor, at a time that Guaranteed Securities are
Outstanding, is not required to file with the Commission information, documents
or reports pursuant to either of those sections of the Exchange Act, then it
will file with the Trustee and the Commission such reports, if any, as may be
prescribed by the Commission at such time.
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ARTICLE
EIGHT
CONSOLIDATION,
MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION
801 Company and Guarantors May
Consolidate, Etc., Only on Certain Terms.
The
Company and the Guarantors, if Guaranteed Securities are Outstanding, shall not
consolidate with or merge into any other Person or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, and each of
the Company and the Guarantors, if Guaranteed Securities are Outstanding, shall
not permit any Person to consolidate with or merge into the Company or any
Guarantor, as the case may be, or convey, transfer or lease its properties and
assets substantially as an entirety to the Company or any Guarantor, as the case
may be, unless:
(1) in
case the Company or any Guarantor, if Guaranteed Securities are Outstanding,
shall consolidate with or merge into another Person or convey, transfer or lease
its properties and assets substantially as an entirety to any Person, the Person
formed by such consolidation or into which the Company or any such Guarantor, as
the case may be, is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company or any such
Guarantor, as the case may be, substantially as an entirety shall be a
corporation, partnership or trust, shall be 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 or, as the case
may be, the obligations of any such Guarantor under the Guarantee and the
performance or observance of every covenant of this Indenture on the part of
such Guarantor, to be performed or observed;
(2) immediately
after giving effect to such transaction and treating any indebtedness which
becomes an obligation of the Company or any Subsidiary of it or any Guarantor or
any Subsidiary of it, as applicable, as a result of such transaction as having
been incurred by the Company or such Subsidiary or any Guarantor 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 conveyance, transfer or
lease, properties or assets of the Company or any Guarantor, as the case may be,
would become subject to a mortgage, pledge, lien, security interest or other
encumbrance that would not be permitted by this Indenture, the Company, such
Guarantor or such successor Person, 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; and
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(4) the
Company has or the Guarantors have delivered to the Trustee an Officers'
Certificate or Guarantors' Officer's Certificates, as applicable, and an Opinion
of Counsel, each stating that such consolidation, merger, conveyance, transfer
or lease and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture comply with this Article Eight and that
all conditions precedent herein provided for relating to such transaction have
been complied with.
SECTION
802 Successor
Substituted.
Upon any
consolidation of the Company with, or merger of the Company into, any other
Person or any conveyance, transfer or lease of the properties and assets of the
Company substantially as an entirety in accordance with Section 801, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor 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.
If
Guaranteed Securities are Outstanding, upon any consolidation of any Guarantor
with, or merger of any Guarantor into, any other Person or any conveyance,
transfer or lease of the properties and assets of any such Guarantor
substantially as an entirety in accordance with Section 801, the successor
Person formed by such consolidation or into which such Guarantor is merged or to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, such Guarantor under
this Indenture with the same effect as if such successor Person had been named
as a 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 the Securities.
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 Guarantors (when authorized by Guarantors' 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 Guarantor and
the assumption by any such successor of the covenants of the Company or the
Guarantors, as the case may be, contained herein and in the Securities;
or
(2) to
add to the covenants of the Company or the Guarantors 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 the
Guarantors; or
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(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 pursuant to the provisions of Section 801(3) or otherwise;
or
(7) to
establish the form or terms of Securities of any series and the Guarantees
thereof 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
(9) to
add Guarantees to the Securities of any series to which the Guarantees shall not
have already been attached; or
(10) to
add to, change or eliminate any of the provisions of this Indenture to such
extent as shall be necessary to comply with the rules or regulations of any
securities exchange or automated quotation system on which any of the Securities
may be listed or traded; or
(11) to
cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other
provisions with respect to matters or questions arising under this Indenture,
provided that such
action pursuant to this Clause (11) shall not adversely affect the interests of
the Holders of Securities of any series in any material respect.
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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 Guarantors (if the
Securities are Guaranteed Securities) and the Trustee, the Company (when
authorized by a Board Resolution), the Guarantors (when authorized by
Guarantors' 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
any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce
the percentage in principal amount of the Outstanding Securities of any series,
the consent of whose Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify
or affect in any manner adverse to the interests of the Holders of any
Securities the terms and conditions of the obligations of the Guarantors in
respect of the due and punctual payment of principal of, or any premium or
interest on, or any sinking fund requirements, with respect to Guaranteed
Securities, or
(4) modify
any of the provisions of this Section 902, Section 513 or Section 1008, except
to increase any such percentage or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the Holder of
each Outstanding Security affected thereby; 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 902
and Section 1008, or the deletion of this proviso, in accordance with the
requirements of Sections 611 and 901(8).
A
supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or 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.
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It shall
not be necessary for any Act of Holders under this Section 902 to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
The
Company may, but shall not be obligated to, fix a record date for the purpose of
determining the Persons entitled to consent to any indenture supplemental
hereto. If a record date is fixed, the Holders on such record date,
or their duly designated proxies, and only such Persons, shall be entitled to
consent to such supplemental indenture, whether or not such Holders remain
Holders after such record date; provided, that unless such
consent shall have become effective by virtue of the requisite percentage having
been obtained prior to the date which is 90 days after such record date,
any such consent previously given shall automatically and without further action
by any Holder be cancelled and of no further effect.
SECTION
903 Execution of Supplemental
Indentures.
In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article Nine or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive, and
(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 Nine, this Indenture
shall be modified in accordance therewith, and such supplemental indenture shall
form a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
SECTION
905 Conformity with Trust Indenture
Act.
Every
supplemental indenture executed pursuant to this Article Nine shall conform to
the requirements of the Trust Indenture Act.
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 Nine may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or the Guarantors
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company or the Guarantors, to any such
supplemental indenture may be prepared and executed by the Company and the
Guarantors, if such Securities are Guaranteed Securities, the Guarantees of the
Guarantors, if applicable, may be duly endorsed thereon, and such Securities may
be authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
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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.
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, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The
Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided,
however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in each Place of Payment for
Securities of any series for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
With
respect to any Global Security, and except as otherwise may be specified for
such Global Security as contemplated by Section 301, the Corporate Trust Office
of the Trustee shall be the Place of Payment where such Global Security may be
presented or surrendered for payment or for registration of transfer or
exchange, or where Successor Securities may be delivered in exchange therefor,
provided, however, that
any such payment, presentation, surrender or delivery effected pursuant to the
Applicable Procedures of the Depositary for such Global Security shall be deemed
to have been effected at the Place of Payment for such Global Security in
accordance with the provisions of this Indenture.
SECTION
1003 Money for Securities Payments to Be
Held in Trust.
If the
Company or the Guarantors shall at any time act as its or their 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.
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Whenever
the Company or the Guarantors, as the case may be, shall have one or more Paying
Agents for any series of Securities, it will, prior to each due date of the
principal of or any premium or interest on any Securities of that series,
deposit (or, if the Company or Guarantors have deposited any trust funds with a
trustee pursuant to Section 1304(1), cause such trustee to 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 or the Guarantors, as the case may be, will promptly notify
the Trustee of its action or failure so to act.
The
Company or the Guarantors, as the case may be, 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 1003, 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 (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 or the Guarantors, as the case may be, 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 or Guarantor Order, as applicable, direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Company or the
Guarantors, as the case may be, 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 the Guarantors, as the case may be, 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 or
the Guarantors, as the case may be, 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 or the Guarantors, as the case may be, on
Company Request or Guarantor Request, as applicable, or (if then held by the
Company or the Guarantors, as the case may be) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company or the Guarantors, as the case may be, 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 or the Guarantors,
as the case may be, 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 or the Guarantors, as the case may be, cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in 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
or the Guarantors, as the case may be.
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SECTION
1004 Statement by Officers as to
Default.
The
Company and the Guarantors, if Guaranteed Securities are Outstanding, will
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company or the Guarantors, as the case may be, ending after the date hereof, an
Officers' Certificate or Guarantors' Officers' Certificates, as applicable,
stating whether or not to the best knowledge of the signers thereof the Company
is or the Guarantors, as the case may be, are 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 the Guarantors shall be in default, specifying
all such defaults and the nature and status thereof of which they may have
knowledge.
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 its existence, rights (charter and
statutory) and franchises; provided, however, that the Company
shall not be required to preserve any such right or franchise if the Board of
Directors 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 of Outstanding
Securities.
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 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 1006 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 of
Outstanding Securities.
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.
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SECTION
1008 Insurance.
The
Company will cause each of its properties and each of the properties of its
Subsidiaries which are of an insurable nature to be insured against loss of
damage with insurers of recognized responsibility, in commercially reasonable
amounts and types.
SECTION
1009 Provision of Financial
Information.
Whether
or not the Company is subject to Section 13 or Section 15(d) of the Exchange
Act, the Company will, to the extent permitted under the Exchange Act, file with
the Commission the annual reports, quarterly reports and other documents that
the Company would have been required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act (the "Financial Statements") if
the Company were so subject, such documents to be filed with the Commission on
or prior to the respective dates (the "Required Filing Dates") by which the
Company would have been required so to file such documents if the Company were
so subject.
The
Company will also in any event (x) within 15 days of each Required Filing Date
(i) transmit by mail to all Holders, as their names and addresses appear in the
Security Register, without cost to such Holders, copies of the annual reports
and quarterly reports that the Company would have been required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act if the
Company were subject to such Sections, and (ii) file with the Trustee copies of
the annual reports, quarterly reports and other documents that the Company would
have been required to file with the Commission pursuant to Section 13 or Section
15(d) of the Exchange Act if the Company were subject to such Sections and (y)
if filing such documents by the Company with the Commission is not permitted
under the Exchange Act, promptly upon written request and payment of the
reasonable cost of duplication and delivery, supply copies of such documents to
any prospective Holder.
SECTION
1010 Waiver of Certain
Covenants.
Except as
otherwise specified as contemplated by Section 301 for Securities of a specific
series, the Company and the Guarantors, as the case may be, 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 covenant provided pursuant to
Section 301(18), 901(2) or 901(7) for the benefit of the Holders of such series,
in Article Eight, or in any of Sections 1005 to 1009, inclusive, 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 or the
Guarantors and the duties of the Trustee in respect of any such term, provision
or condition shall remain in full force and effect.
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SECTION
1011 Calculation of Original Issue
Discount.
The
Company shall file with the Trustee promptly following the end of each calendar
year a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on Outstanding Securities as
of the end of such year, but only if as of the end of such year Securities
issued at an original issue discount are then Outstanding.
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
Eleven.
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 60 days prior to
the Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date, 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.
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 not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of 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 not more
than 60 days prior to the Redemption Date 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.
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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.
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,
with a copy to the Trustee and any Paying Agent.
All
notices of redemption shall identify the Securities to be redeemed, including
CUSIP number, if any, and shall state:
(1) the
Redemption Date,
(2) the
Redemption Price,
(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, and
(6) that
the redemption is for a sinking fund, if such is the case.
Notice of
redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Company's request made to the Trustee at least
35 days prior to the Redemption Date, by the Trustee in the name and at the
expense of the Company and shall be irrevocable.
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SECTION
1105 Deposit of Redemption
Price.
Prior to
any Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date or the Securities of the series provide otherwise) accrued interest
on, all the Securities which are to be redeemed on that date.
SECTION
1106 Securities Payable on Redemption
Date.
Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the 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, if applicable, 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, 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
SINKING
FUNDS
SECTION
1201 Applicability of
Article.
The
provisions of this Article Twelve 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.
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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 1202. Each sinking
fund payment shall be applied to the redemption of Securities as provided for by
the terms of such Securities.
SECTION
1202 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 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 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
1203 Redemption of Securities for Sinking
Fund.
Not less
than 60 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 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 nor more than 45 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.
ARTICLE
THIRTEEN
DEFEASANCE
AND COVENANT DEFEASANCE
SECTION
1301 Company's Option to Effect
Defeasance or Covenant Defeasance.
If
applicable to a particular series of Securities, the Company may elect, at its
option at any time, to have Section 1302 or Section 1303 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 1302 or 1303, in
accordance with any applicable requirements provided pursuant to Section 301 and
upon compliance with the conditions set forth below in this
Article Thirteen. Any such election shall be evidenced by a Board
Resolution or in another manner specified as contemplated by Section 301 for
such Securities.
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SECTION
1302 Defeasance and
Discharge.
Upon the
Company's exercise of its option (if any) to have this Section applied to any
applicable series of Securities or any Securities of such series, as the case
may be, the Company and the Guarantors (with respect to Guaranteed Securities)
shall be deemed to have been discharged from its obligations with respect to
such Securities as provided in this Section on and after the date the conditions
set forth in Section 1304 are satisfied (hereinafter called "Defeasance"). For
this purpose, such Defeasance means that the Company and the Guarantors (with
respect to Guaranteed Securities) 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 1304 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, (2) the Company's obligations with respect to such
Securities and the Guarantors' obligations with respect to Guaranteed Securities
under Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (4) this Article Thirteen.
Subject to compliance with this Article, the Company may exercise its option (if
any) to have this Section 1302 applied to any applicable Securities
notwithstanding the prior exercise of its option (if any) to have Section 1303
applied to such Securities.
SECTION
1303 Covenant
Defeasance.
Upon the
Company's exercise of its option (if any) to have this Section 1303 applied
to any applicable series of Securities or any Securities of such series, as the
case may be, (1) each of the Company and the Guarantors (with respect to
Guaranteed Securities) shall be released from its obligations under Section
801(3), Sections 1005 through 1009, inclusive, and any covenants provided
pursuant to Section 301(18), 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(4)
(with respect to any of Section 801(3), Sections 1006 through 1009, inclusive,
and any such covenants provided pursuant to Sections 301(18), 901(2) or 901(7)),
501(5) and 501(8) shall be deemed not to be or result in an Event of Default, in
each case with respect to such Securities as provided in this Section 1303
on and after the date the conditions set forth in Section 1304 are satisfied
(hereinafter called "Covenant Defeasance"). For this purpose, such Covenant
Defeasance means that, with respect to such Securities, the Company and the
Guarantors (with respect to Guaranteed Securities) 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(4)), whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the
remainder of this Indenture and such Securities shall be unaffected
thereby.
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SECTION
1304 Conditions to Defeasance or Covenant
Defeasance.
The
following shall be the conditions to the application of Section 1302 or Section
1303 to any applicable series of Securities or any Securities of such series, 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 Thirteen
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 1302 apply to any applicable series of
Securities or any Securities of such series, 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.
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(3) In
the event of an election to have Section 1303 apply to any applicable series of
Securities or any Securities of such series, 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(6) and (7), at any time on or prior to the
90th day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until after such 90th 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 the Trust Indenture
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 is a party or by which it is bound.
(8) Such
Defeasance or Covenant Defeasance shall not result in the trust arising from
such deposit constituting an investment company within the meaning of the
Investment Company Act unless such trust shall be registered under such Act or
exempt from registration thereunder.
(9) 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.
SECTION
1305 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 1305
and Section 1306, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 1304 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.
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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 1304 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 Thirteen 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 1304 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
1306 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 1302
or 1303 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 1305 with respect to such Securities in accordance with this Article
Thirteen; 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.
ARTICLE
FOURTEEN
GUARANTEE
SECTION
1401 The Guarantee
The
Guarantee set forth in this Article Fourteen shall only be in effect with
respect to Securities of a series to the extent such Guarantee is made
applicable to such series in accordance with Section 301. Each
Guarantor hereby unconditionally guarantees to each Holder of a Guaranteed
Security authenticated and delivered by the Trustee the due and punctual payment
of the principal of, any premium and interest on, such Guaranteed Security,
whether at Stated Maturity, by acceleration, redemption, repayment or otherwise,
in accordance with the terms of such Guaranteed Security and this
Indenture. In case of the failure of the Company punctually to pay
any such principal, premium, interest or any additional amounts, each Guarantor
hereby agrees to cause any such payment to be made punctually when and as the
same shall become due and payable, whether at Stated Maturity, upon
acceleration, redemption, repayment or otherwise, and as if such payment were
made by the Company.
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Each
Guarantor hereby agrees that its obligations hereunder shall be as principal and
not merely as surety, and shall be absolute, irrevocable and unconditional,
irrespective of, and shall be unaffected by, any invalidity, irregularity or
unenforceability of any Guaranteed Security or this Indenture, any failure to
enforce the provisions of any Guaranteed Security or this Indenture, or any
waiver, modification, consent or indulgence granted with respect thereto by the
Holder of such Guaranteed Security or the Trustee, the recovery of any judgment
against the Company or any action to enforce the same, or any other
circumstances which may otherwise constitute a legal or equitable discharge of a
surety or guarantor; provided, however, that, notwithstanding the foregoing, no
such waiver, modification or indulgence shall, without the consent of the
Guarantors, increase the principal amount of such Security or the interest rate
thereon or impose or increase any premium payable upon redemption
thereof. Each Guarantor hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of merger, insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Issuer, protest or notice with respect to any such Guaranteed Security or the
Indebtedness evidenced thereby and all demands whatsoever, and covenants that
this Guarantee will not be discharged except by payment in full of the principal
of, any premium and interest on, and any additional amounts required with
respect to, the Guaranteed Securities and the complete performance of all other
payment obligations contained in the Guaranteed Securities.
This
Guarantee shall continue to be effective or be reinstated, as the case may be,
if at any time payment on any Guaranteed Security, in whole or in part, is
rescinded or must otherwise be repaid to the Company or the Guarantors upon the
bankruptcy, liquidation or reorganization of the Company, the Guarantors or
otherwise.
The
Guarantors shall be subrogated to all rights of the Holder of any Guaranteed
Security against the Company in respect of any amounts paid to such Holder by
the Guarantor pursuant to the provisions of this Guarantee; provided, however, that the
Guarantors 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, any
premium and interest on, and any additional amounts required with respect to,
all Guaranteed Securities shall have been paid in full.
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IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective seals to be hereunto affixed and attested, all as
of the day and year first above written.
|
THE
COMPANY
|
||
|
ORION
MARINE HOLDINGS, INC.
|
||
|
By
|
||
Attest:
______________________________
|
THE
GUARANTORS
|
||
|
X.
XXXXXX CONSTRUCTION, LLC
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
Attest:
______________________________
|
KING
XXXXXX MARINE SERVICE, L.P.
|
|||
|
By:
|
KFMSGP,
LLC
|
||
|
its
general partner
|
|||
|
By:
|
|||
|
Name:
Title:
|
|||
Attest:
______________________________
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|
XXXXXXX
MARINE CONSTRUCTION,
INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
Attest:
______________________________
|
ORION
ADMINISTRATIVE SERVICES,
INC.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
Attest:
______________________________
|
ORION
DREDGING SERVICES, LLC
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
Attest:
______________________________
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|
By:
|
ORION
DREDGING SERVICES,
LLC
|
||
|
its
sole member
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
Attest:
______________________________
|
THE
TRUSTEE
|
||
|
[●]
|
||
|
By
|
||
Attest:
______________________________
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