1
EXHIBIT 4(m)
Xxxxxxxx Gold Corporation
as Issuer
and
[ ],
as Trustee
---------------------------------
INDENTURE
dated as of
-----------, ----
---------------------------------
2
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.01. Certain Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Other Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Section 1.03. Incorporation by Reference of Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . 4
Section 1.04. Rules of Construction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 2 THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.01. Unlimited In Amount, Issuable In Series, Form and Dating. . . . . . . . . . . . . . . . . . 5
Section 2.02. Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.03. Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.04. Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 2.05. Securityholder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.06. Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.07. Replacement Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.08. Outstanding Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Section 2.09. Treasury Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.10. Temporary Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.11. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.12. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Section 2.13. Special Record Dates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 3 REDEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.01. Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Section 3.02. Selection of Securities to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 3.03. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 3.04. Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.05. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.06. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE 4 COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 4.01. Payment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 4.02. Maintenance of Office or Agency. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.03. Commission Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 4.04. Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.05. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.06. Stay, Extension and Usury Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 4.07. Corporate Existence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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Section 4.08. Payments for Consent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.09. Limitation on Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.10. Limitation on Sale and Lease-Back. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
ARTICLE 5 SUCCESSORS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 5.01. When Company May Merge, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 5.02. Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 6 DEFAULTS AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 6.02. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.03. Other Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 6.04. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.05. Control by Majority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.06. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 6.07. Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.08. Collection Suit by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.09. Trustee May File Proofs of Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 6.10. Priorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.11. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 7 TRUSTEE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.01. Duties of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Section 7.02. Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.03. Individual Rights of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.04. Trustee's Disclaimer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.05. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7.06. Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7.07. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 7.08. Replacement of Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 7.09. Successor Trustee by Merger, etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 7.10. Eligibility; Disqualification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Section 7.11. Preferential Collection of Claims Against Company. . . . . . . . . . . . . . . . . . . . . 30
ARTICLE 8 DISCHARGE OF INDENTURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 8.01. Termination of Company's Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 8.02. Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 8.03. Repayment to Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 9 SUPPLEMENTS, AMENDMENTS AND WAIVERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Section 9.01. Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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Section 9.02. With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Section 9.03. Revocation and Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 9.04. Notation on or Exchange of Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Section 9.05. Trustee to Sign Amendments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 10 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 10.01. Indenture Subject to Trust Indenture Act. . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 10.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Section 10.03. Communication By Holders With Other Holders. . . . . . . . . . . . . . . . . . . . . . . . 36
Section 10.04. Certificate and Opinion as to Conditions Precedent. . . . . . . . . . . . . . . . . . . . . 36
Section 10.05. Statements Required in Certificate or Opinion . . . . . . . . . . . . . . . . . . . . . . . 36
Section 10.06. Rules by Trustee and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 10.07. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 10.08. No Recourse Against Others. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 10.09. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 10.10. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 10.11. Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 10.12. Effect of Headings, Table of Contents, etc. . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 10.13. Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Section 10.14. No Interpretation of Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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CROSS-REFERENCE TABLE*
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
-------------- -----------------
310 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03
313 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06; 10.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.03; 10.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(b)(ii)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 10.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(d)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316 (a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.09
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.13; 9.03
317 (a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318 (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 10.01
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
N.A. means not applicable.
----------------
*THIS CROSS-REFERENCE TABLE IS NOT PART OF THE INDENTURE.
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INDENTURE dated as of _________________, ______ between Xxxxxxxx Gold
Corporation, a Delaware corporation (the "Company"), and
____________________________, a ______________________, as Trustee (the
"Trustee").
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes or other evidences of indebtedness to be issued in one or more series
(the "Securities"), as herein provided, up to such principal amount as may from
time to time be authorized in or pursuant to one or more resolutions of the
Board of Directors or by supplemental indenture.
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of each series of the
Securities:
ARTICLE 1
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01. Certain Definitions.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
purposes of this definition, "control" (including, with correlative meanings,
the terms "controlling," "controlled by" and "under common control with"), as
used with respect to any Person, shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting stock, by
agreement or otherwise; provided, however, that beneficial ownership of 20% or
more of the voting stock of a Person shall be deemed to be control.
"Agent" means any Registrar, Paying Agent, authenticating agent or
co-Registrar.
"Board of Directors" means the Board of Directors of the Company or
any authorized committee thereof.
"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, if appropriate).
"Commission" means the Securities and Exchange Commission.
"Company" means the party named as such above until a successor
replaces it pursuant to this Indenture and thereafter means the successor.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
7
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession, which are in effect from time to time.
"Global Security" shall mean a Security issued to evidence all or a
part of any series of Securities that is executed by the Company and
authenticated and delivered by the Trustee to a depositary or pursuant to such
depositary's instructions, all in accordance with this Indenture and pursuant
to an Officer's Certificate, which shall be registered as to principal and
interest in the name of such depositary or its nominee.
"Holder" or "Securityholder" means a Person in whose name a Security
is registered in the register of Securities kept by the Registrar.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"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.
"Officer" means the Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial
Officer, any Vice-President, the Treasurer, the Controller, the Secretary, any
Assistant Treasurer or any Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers,
one of whom must be the Chief Executive Officer, the President, the Chief
Financial Officer, the Treasurer or principal accounting officer of the
Company.
"Opinion of Counsel" means a written opinion from legal counsel who
is reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security which provides
that an amount less than its principal amount is due and payable upon
acceleration after an Event of Default.
"Person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint stock company, trust,
unincorporated organization or government or any agency or political
subdivision thereof.
"Principal" of a Security means the principal amount due on the
stated maturity of the Security plus the premium, if any, on the Security.
2
8
"Securities" means the Securities authenticated and delivered under
this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Subsidiary" means any corporation, partnership or limited liability
company of which the Company, or the Company and one or more Subsidiaries, or
any one or more Subsidiaries, directly or indirectly own (i) in the case of a
corporation, voting securities entitling the holders thereof to elect a
majority of the directors, either at all times or so long as there is no
default or contingency which permits the holders of any other class of
securities to vote for the election of one or more directors, (ii) in the case
of a partnership, at least a majority of the general partnership interests and
at least a majority of total outstanding partnership interests or (iii) in the
case of a limited liability company, at least a majority of the membership
interests.
"TIA" means the Trust Indenture Act of 1939, as amended from time to
time, and as in effect on the date of execution of this Indenture.
"Trustee" means the party named as such above until a successor
becomes such pursuant to this Indenture and thereafter means or includes each
party who is then a trustee hereunder, and if at any time there is more than
one such party, "Trustee" as used with respect to the Securities of any series
means the Trustee with respect to Securities of that series. If Trustees with
respect to different series of Securities are trustees under this Indenture,
nothing herein shall constitute the Trustees co-trustees of the same trust, and
each Trustee shall be the trustee of a trust separate and apart from any trust
administered by any other Trustee with respect to a different series of
Securities.
"Trust Officer" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
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Section 1.02. Other Definitions.
------------ -----------------
Term Defined in Section
---- ------------------
"Bankruptcy Law" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Custodian" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Legal Holiday" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.07
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"redemption price" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.03
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"U.S. Government Obligations" . . . . . . . . . . . . . . . . . . . . . . . . . 8.01
Section 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities.
"indenture securityholder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the Securities means the Company.
All other terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by Commission rule under the TIA
have the meanings so assigned to them.
Section 1.04. Rules of Construction.
Unless the context otherwise requires:
(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and in the plural
include the singular; and
(v) provisions apply to successive events and transactions.
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ARTICLE 2
THE SECURITIES
Section 2.01. Unlimited In Amount, Issuable In Series, Form and Dating.
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 or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series:
(a) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(b) any limit upon the aggregate principal amount of
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 this Article 2);
(c) the date or dates on which the principal of the
Securities of the series is payable;
(d) the rate or rates at which the Securities of the
series shall bear interest, if any, or the manner in which such rate
or rates shall be determined, the date or dates from which such
interest shall accrue, the interest payment dates on which such
interest shall be payable and the record dates for the determination
of Holders to whom interest is payable;
(e) the place or places where the principal of and any
interest on Securities of the series shall be payable, if other than
as provided herein;
(f) the price or prices at which (if any), the period or
periods within which (if any) and the terms and conditions upon which
(if other than as provided herein) Securities of the series may be
redeemed, in whole or in part, at the option, or as an obligation, of
the Company;
(g) the obligation, if any, of the Company to redeem,
purchase or repay Securities of the series, in whole or in part,
pursuant to any sinking fund or analogous provisions or at the option
of a Holder thereof and the price or prices at which and the period
and periods within which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid
pursuant to such obligation;
(h) if other than denominations of $1,000 and any multiple
thereof, the denominations in which Securities of the series shall be
issuable;
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(i) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which
shall be payable upon declaration of acceleration of the maturity
thereof pursuant to Section 6.02 hereof;
(j) any addition to or change in the covenants set forth in
Article 4 which applies to Securities of the series;
(k) any Events of Default with respect to the Securities
of a particular series, if not set forth herein;
(l) the Trustee for the series of Securities;
(m) whether the Securities of the series shall be issued
in whole or in part in the form of a Global Security or Securities;
the terms and conditions, if any, upon which such Global Security or
Securities may be exchanged in whole or in part for other individual
Securities, and the depositary for such Global Security and
Securities;
(n) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, but which may
modify or delete any provision of this Indenture with respect to such
series; provided, however, that no such term may modify or delete any
provision hereof if imposed by the TIA; and provided, further, that
any modification or deletion of the rights, duties or immunities of
the Trustee hereunder shall have been consented to in writing by the
Trustee).
All Securities of any series shall be substantially identical except
as to denomination and except as may otherwise be provided in or pursuant to
such Board Resolution or in any such indenture supplemental hereto.
The principal of and any interest on the Securities shall be payable
at the office or agency of the Company designated in the form of Security for
the series (each such place herein called the "Place of Payment"); provided,
however, that payment of interest may be made at the option of the Company by
check mailed to the address of the Person entitled thereto as such address
shall appear in the register of Securities referred to in Section 2.03 hereof.
Each Security shall be in one of the forms approved from time to time
by or pursuant to a Board Resolution, or established in one or more indentures
supplemental hereto. Prior to the delivery of a Security to the Trustee for
authentication in any form approved by or pursuant to a Board Resolution, the
Company shall deliver to the Trustee the Board Resolution by or pursuant to
which such form of Security has been approved, which Board Resolution shall
have attached thereto a true and correct copy of the form of Security which has
been approved by or pursuant thereto, or, if a Board Resolution authorizes a
specific officer or officers to approve a form of Security, a certificate of
such officer or officers approving the form of Security attached thereto.
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The Securities may have notations, legends or endorsements required
by law, stock exchange rule or usage. Each Security shall be dated the date of
its authentication.
Section 2.02. Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Securities.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee shall authenticate Securities for original issue upon a
written order of the Company signed by two Officers.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company
or an Affiliate of the Company.
Section 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities of a
particular series may be presented for registration of transfer or for exchange
(the "Registrar") and an office or agency where Securities of that series may
be presented for payment (a "Paying Agent"). The Registrar for a particular
series of Securities shall keep a register of the Securities of that series and
of their transfer and exchange. The Company may appoint one or more
co-Registrars and one or more additional paying agents for each series of
Securities. The term "Paying Agent" includes any additional paying agent. The
Company may change any Paying Agent, Registrar or co-Registrar without prior
notice to any Securityholder. The Company shall notify the Trustee in writing
of the name and address of any Agent not a party to this Indenture.
If the Company fails to maintain a Registrar or Paying Agent for any
series of Securities, the Trustee shall act as such. The Company or any of its
Affiliates may act as Paying Agent, Registrar or co-Registrar.
Section 2.04. Paying Agent to Hold Money in Trust.
Whenever the Company has one or more Paying Agents it will, prior to
each due date of the principal of or interest on, any Securities, deposit with
a Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or
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interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that such Paying Agent will hold in trust for the benefit of
the Securityholders of the particular series for which it is acting, or the
Trustee, all money held by the Paying Agent for the payment of principal or
interest on the Securities of such series, and that such Paying Agent will
notify the Trustee of any Default by the Company or any other obligor of the
series of Securities in making any such payment and at any time during the
continuance of any such Default, upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
If the Company or an Affiliate acts as Paying Agent, it shall segregate and
hold in a separate trust fund for the benefit of the Securityholders of the
particular series for which it is acting all money held by it as Paying Agent.
The Company at any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon so doing, the Paying Agent (if other than the Company or
an Affiliate of the Company) shall have no further liability for such money.
Upon any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Securities.
Section 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
Securityholders, separately by series, and shall otherwise comply with TIA
Section 312(a). If the Trustee is not the Registrar, the Company shall furnish
to the Trustee at least seven Business Days before each interest payment date
and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders, separately by series, relating to such interest
payment date or request, as the case may be.
Section 2.06. Transfer and Exchange.
Where Securities are presented to the Registrar or a co-Registrar
with a request to register a transfer or to exchange them for an equal
principal amount of Securities of like series of other authorized
denominations, the Registrar shall register the transfer or make the exchange
if its requirements for such transactions are met. To permit registrations of
transfers and exchanges, the Company shall issue and the Trustee shall
authenticate Securities at the Registrar's request.
No service charge shall be made for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon
exchanges pursuant to Sections 2.10, 3.06 or 9.04).
The Company need not issue, and the Registrar or co-Registrar need
not register the transfer or exchange of, (i) any Security of a particular
series during a period beginning at
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the opening of business 15 days before the day of any selection of Securities
of that series for redemption under Section 3.02 and ending at the close of
business on the day of selection, or (ii) any Security so selected for
redemption in whole or in part, except the unredeemed portion of any Security
of that series being redeemed in part.
Section 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate a
replacement Security of like series if the Company's and the Trustee's
requirements are met. The Trustee or the Company may require an indemnity bond
to be furnished which is sufficient in the judgment of both to protect the
Company, the Trustee, and any Agent from any loss which any of them may suffer
if a Security is replaced. The Company may charge such Holder for its expenses
in replacing a Security.
Every replacement Security is an additional obligation of the Company
and shall be entitled to all the benefit of the Indenture equally and
proportionately with any and all other Securities of the same series.
Section 2.08. Outstanding Securities.
The Securities of any series outstanding at any time are all the
Securities of that series authenticated by the Trustee except for those
cancelled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they cease to
be outstanding and interest on them ceases to accrue.
Except as set forth in Section 2.09 hereof, a Security does not cease
to be outstanding because the Company or an Affiliate holds the Security.
For each series of Original Issue Discount Securities, the principal
amount of such Securities that shall be deemed to be outstanding and used to
determine whether the necessary Holders have given any request, demand,
authorization, direction, notice, consent or waiver shall be the principal
amount of such Securities that could be declared to be due and payable upon
acceleration upon an Event of Default as of the date of such determination.
When requested by the Trustee, the Company will advise the Trustee of such
amount, showing its computations in reasonable detail.
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Section 2.09. Treasury Securities.
In determining whether the Holders of the required principal amount
of Securities of any series have concurred in any direction, waiver or consent,
Securities owned by the Company or an Affiliate shall be considered as though
they are not outstanding, except that for the purposes of determining whether
the Trustee shall be protected in relying on any such direction, waiver or
consent, only Securities which the Trustee knows are so owned shall be so
considered.
Section 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities upon a written
order of the Company signed by two Officers of the Company. Temporary
Securities shall be substantially in the form of definitive Securities but may
have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Securities in exchange for temporary
Securities.
Holders of temporary securities shall be entitled to all of the
benefits of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Securities surrendered for registration
of transfer, exchange, payment, replacement or cancellation and shall destroy
such Securities (subject to the record retention requirements of the Exchange
Act). Certification of the destruction of all cancelled Securities shall be
delivered to the Company. The Company may not issue new Securities to replace
Securities that it has paid or that have been delivered to the Trustee for
cancellation.
Section 2.12. Defaulted Interest.
If the Company fails to make a payment of interest on any series of
Securities, it shall pay such defaulted interest plus (to the extent lawful)
any interest payable on the defaulted interest, in any lawful manner. It may
elect to pay such defaulted interest, plus any such interest payable on it, to
the Persons who are Holders of such Securities on which the interest is due on
a subsequent special record date. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each such
Security. The Company shall fix any such record date and payment date for such
payment. At least 15 days before any such record date, the Company shall mail
to Securityholders affected thereby a notice that states the record date,
payment date, and amount of such interest to be paid.
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Section 2.13. Special Record Dates.
(a) The Company may, but shall not be obligated to, set a
record date for the purpose of determining the identity of Holders entitled to
consent to any supplement, amendment or waiver permitted by this Indenture. If
a record date is fixed, the Holders of Securities of that series outstanding on
such record date, and no other Holders, shall be entitled to consent to such
supplement, amendment or waiver or revoke any consent previously given, whether
or not such Holders remain Holders after such record date. No consent shall be
valid or effective for more than 90 days after such record date unless consents
from Holders of the principal amount of Securities of that series required
hereunder for such amendment or waiver to be effective shall have also been
given and not revoked within such 90-day period.
(b) The Trustee may, but shall not be obligated to, fix any day
as a record date for the purpose of determining the Holders of any series of
Securities entitled to join in the giving or making of any notice of Default,
any declaration of acceleration, any request to institute proceedings or any
other similar direction. If a record date is fixed, the Holders of Securities
of that series outstanding 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, however, that
no such action shall be effective hereunder unless taken on or prior to the
date 90 days after such record date.
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee.
If the Company elects to redeem Securities of any series pursuant to
any optional redemption provisions thereof, it shall notify the Trustee of the
redemption date and the principal amount of Securities of that series to be
redeemed.
The Company shall give each notice provided for in this Section in an
Officers' Certificate at least 45 days before the redemption date (unless a
shorter notice period shall be satisfactory to the Trustee), which notice shall
specify the provisions of such Security pursuant to which the Company elects to
redeem such Securities.
If the Company elects to reduce the principal amount of Securities of
any series to be redeemed pursuant to mandatory redemption provisions thereof,
it shall notify the Trustee of the amount of, and the basis for, any such
reduction. If the Company elects to credit against any such mandatory
redemption Securities it has not previously delivered to the Trustee for
cancellation, it shall deliver such Securities with such notice.
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Section 3.02. Selection of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
Trustee shall select the Securities of that series to be redeemed by a method
that complies with the requirements of any exchange on which the Securities of
that series are listed, or, if the Securities of that series are not listed on
an exchange, on a pro rata basis or by lot. The Trustee shall make the
selection not more than 75 days and not less than 30 days before the redemption
date from Securities of that series outstanding and not previously called for
redemption. Except as otherwise provided as to any particular series of
Securities, Securities and portions thereof that the Trustee selects shall be
in amounts equal to the minimum authorized denomination for Securities of the
series to be redeemed or any integral multiple thereof. Provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption. The Trustee shall notify the Company
promptly in writing of the Securities or portions of Securities to be called
for redemption.
Section 3.03. Notice of Redemption.
Except as otherwise provided as to any particular series of
Securities, at least 30 days but not more than 60 days before a redemption
date, the Company shall mail a notice of redemption to each Holder whose
Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price fixed in accordance with the
terms of the Securities of the series to be redeemed, plus accrued
interest, if any, to the date fixed for redemption (the "redemption
price");
(3) if any Security is being redeemed in part, the
portion of the principal amount of such Security to be redeemed and
that, after the redemption date, upon surrender of such Security, a
new Security or Securities in principal amount equal to the
unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(6) that, unless the Company defaults in payment of
the redemption price, interest on Securities called for redemption
ceases to accrue on and after the redemption date;
(7) The paragraph of the series of Securities and/or
Section of any supplemental indenture pursuant to which such
Securities called for redemption are being redeemed; and
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(8) the CUSIP number, if any, of the Securities to be
redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that
the Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as
provided in the preceding paragraph. The notice mailed in the manner herein
provided shall be conclusively presumed to have been duly given whether or not
the Holder receives such notice. In any case, failure to give such notice by
mail or any defect in the notice of the Holder of any Security shall not affect
the validity of the proceeding for the redemption of any other Security.
Section 3.04. Effect of Notice of Redemption.
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Securities called for redemption become due and payable on the
redemption date for the redemption price. Upon surrender to the Paying Agent,
such Securities will be paid at the Redemption Price.
Section 3.05. Deposit of Redemption Price.
On or before the redemption date, the Company shall deposit with the
Paying Agent (or, if the Company or any Subsidiary is the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the redemption price of
all Securities called for redemption on that date other than Securities which
have previously been delivered by the Company to the Trustee for cancellation.
The Paying Agent shall return to the Company any money not required for that
purpose.
Section 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder at the expense of
the Company a new Security of like series equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE 4
COVENANTS
Section 4.01. Payment of Securities.
The Company shall pay or cause to be paid the principal of and
interest on the Securities on the dates and in the manner provided in this
Indenture and the Securities. Principal and interest shall be considered paid
on the date due if the Paying Agent, if other than the Company or an Affiliate,
holds as of 10:00 a.m. Eastern Time on that date
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immediately available funds designated for and sufficient to pay all principal
and interest then due.
To the extent lawful, the Company shall pay interest on overdue
principal and overdue installments of interest at the rate per annum borne by
the applicable series of Securities.
Section 4.02. Maintenance of Office or Agency.
The Company shall maintain in the City of New York, an office or
agency (which may be an office of the Trustee or an affiliate of the Trustee or
Registrar) where Securities may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company shall 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.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
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 the
City of New York for such purposes. The Company shall 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.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03.
Section 4.03. Commission Reports.
The Company shall deliver to the Trustee within 15 days after the
required filing date copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the
foregoing as the Commission may by rules and regulations prescribe) which the
Company is required to file with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act; provided, however the Company shall not be required to
deliver to the Trustee any materials for which the Company has sought and
received confidential treatment by the Commission. The Company will cause any
quarterly and annual reports which it mails to its stockholders to be mailed to
the Holders of the Securities. If the Company is not subject to the
requirements of Section 13 or 15(d) of the Exchange Act, the Company shall
continue to file with the Trustee (in each case within 15 days after the time
that such documents would have been filed with the Commission) such reports,
information and other documents as it would file if it were subject to the
requirements of Section 13 or 15(d) of the Exchange Act (other than such
confidential materials referenced above). The Company also shall comply with
the other provisions of TIA Section 314(a).
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Section 4.04. Compliance Certificate.
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company, an Officers' Certificate (one of the
signers of which shall be the principal accounting officer, principal financial
officer or principal executive officer) stating that in the course of the
performance by the signers of their duties as officers of the Company, they
would normally have knowledge of any failure by the Company to comply with all
conditions, or default by the Company with respect to any covenants, under this
Indenture, and further stating whether or not they have knowledge of any such
failure or default and, if so, specifying each such failure or default and the
nature thereof. For purposes of this Section, such compliance shall be
determined without regard to any period of grace or requirement of notice
provided for in this Indenture. The certificate need not comply with Section
10.04.
The first certificate delivered pursuant to this Section 4.03 shall
be for the fiscal year ending on _________, ____.
Section 4.05. Taxes.
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and governmental
levies except (i) as contested in good faith by appropriate proceedings and
with respect to which appropriate reserves have been taken in accordance with
GAAP or (ii) where the failure to effect such payment is not adverse in any
material respect to the Holders.
Section 4.06. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay, extension or usury law wherever
enacted, now or at any time hereafter in force, that may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it shall not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but
shall suffer and permit the execution of every such power as though no such law
has been enacted.
Section 4.07. Corporate Existence.
Subject to Article 5 hereof, the Company shall do or cause to be done
all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of each Subsidiary and (ii) the
rights (charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Subsidiaries, if the Board of Directors shall
determine that the preservation thereof is no
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longer desirable in the conduct of the business of the Company and its
Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any
material respect to the Holders.
Section 4.08. Payments for Consent.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of the Securities for or as an
inducement to any consent, waiver or amendment of any terms or provisions of
this Indenture or of the Securities or any series thereof unless such
consideration is offered to be paid or agreed to be paid to all Holders of the
Securities of such series that so consent, waive or agree to amend in the time
frame set forth in solicitation documents relating to such consent, waiver or
agreement.
Section 4.09 Limitation on Liens.
(a) The Company will not, and will not permit any Subsidiary
to, create, incur, assume or guarantee any indebtedness for money borrowed
(hereinafter in Sections 4.09 and 4.10 referred to as "Debt"), secured by a
mortgage, security interest, pledge, lien, charge or similar encumbrance
(mortgages, security interests, pledges, liens, charges and other encumbrances,
hereinafter in Sections 4.09 and 4.10 referred to as a "Mortgage") upon any
manufacturing plant or manufacturing facility which is (i) owned by the Company
or any Subsidiary and (ii) located within the continental United States of
America, except any such plant which, in the opinion of the Board of Directors,
is not of material importance to the total business conducted by the Company
and the Subsidiaries taken as a whole (the "Principal Property") or upon any
shares of stock or indebtedness of any Subsidiary (whether such Principal
Property, shares of stock or indebtedness are now owned or hereafter acquired)
without in any such case effectively providing concurrently with the issuance,
assumption or guaranty of any such Debt that the outstanding Securities
(together with, if the Company shall so determine, any other indebtedness of or
guarantee by the Company or such Subsidiary ranking equally with the
outstanding Securities and then existing or thereafter created) shall be
secured equally and ratably with such Debt; provided, however, that the
foregoing restrictions shall not apply to Debt secured by:
(i) Mortgages on property, shares of stock or
indebtedness of any corporation existing at the time such corporation
becomes a Subsidiary;
(ii) Mortgages on property existing at the time of
acquisition of such property by the Company or a Subsidiary,
Mortgages to secure the payment of all or any part of the purchase
price of such property incurred prior to, at the time of, or within
180 days after the acquisition of such property by the Company or a
Subsidiary, or Mortgages to secure any debt incurred prior to, at the
time of, or within 180 days after the completion of construction or
commencement of full operation of any property for the purpose of
financing all or any part of the cost to the Company or a Subsidiary
of improvements to such property;
(iii) Mortgages securing Debt of a Subsidiary owing to the
Company or to another Subsidiary;
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(iv) Mortgages existing at the date of this Indenture;
(v) Mortgages on property of a Person existing at the
time such Person is merged into or consolidated with the Company or a
Subsidiary or at the time of a sale, lease or other disposition of
the properties of a Person as an entirety or substantially as an
entirety to the Company or a Subsidiary;
(vi) Mortgages on property of the Company or a Subsidiary
in favor of the United States of America or any State thereof, or any
department, agency, instrumentality or political subdivision thereof,
to secure any payments, including advance or progress payments,
pursuant to any contract or statute or to secure any indebtedness
incurred or guaranteed for the purpose of financing all or any part
of the purchase price or the cost of construction of the property
subject to such Mortgages (including, but not limited to, Mortgages
incurred in connection with pollution control bonds, industrial
revenue bonds or similar financings); or
(vii) Any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any
Mortgage referred to in the foregoing clauses (i) to (vi), inclusive;
provided, however, that such extension, renewal or replacement shall
be limited to all or part of the property which secured the Mortgage
so extended, renewed or replaced (plus improvements on such
property).
(b) Notwithstanding the foregoing provisions of this Section
4.09, the Company and any one or more Subsidiaries may issue, assume or
guarantee Debt secured by a Mortgage which would otherwise be subject to the
foregoing restrictions in an aggregate amount which, together with all other
outstanding Debt of the Company and its Subsidiaries which (if originally
issued, assumed or guaranteed at such time) would otherwise be subject to the
foregoing restrictions (not including Debt permitted to be secured under
clauses (i) through (vii) above), does not at the time exceed the greater of
$______________ or 10% of Consolidated Net Tangible Assets of the Company and
its consolidated Subsidiaries as shown on the most recent consolidated
financial statements of the Company and its consolidated Subsidiaries.
Section 4.10. Limitation on Sale and Lease-Back.
The Company will not, nor will it permit any Subsidiary to, enter
into any arrangement with any person or entity that provides for the leasing to
the Company or any Subsidiary of any Principal Property (except for leases for
a term of not more than three years and except for leases between the Company
and a Subsidiary or between Subsidiaries), which Principal Property has been or
is to be sold or transferred by the Company or such Subsidiary to such person,
unless (a) the Company or such Subsidiary would be entitled, pursuant to the
provisions of Section 4.09, to issue, assume or guarantee Debt secured by
Mortgage upon such Principal Property at least equal in the amount to the
Attributable Debt (as defined below) in respect of such arrangement without
equally and ratably securing the outstanding Securities; provided, however,
that from and after the date on which such arrangement becomes effective the
Attributable Debt in respect of such arrangement shall be
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deemed for all purposes under Sections 4.09 and 4.10 to be Debt subject to the
provisions of Section 4.09, or (b) the Company shall apply an amount in cash
equal to the greater of the net proceeds of such sale or the Attributable Debt
in respect of such an arrangement to the retirement (other than any mandatory
retirement or by way or payment at maturity) within 120 days of the effective
date of any such arrangement, of Debt (except as otherwise provided by the
terms of any series of outstanding Securities) of the Company of any Subsidiary
(other than the Debt owed by the Company or any Subsidiary to the Company or
any Subsidiary) which by its terms matures at or is extendible or renewable at
the opinion of the obligor to a date more than twelve months after the date of
the creation of such Debt.
For the purposes of this Section 4.10, the term "Attributable Debt"
means, at the time of determination, the lesser of (a) the fair market value of
such property (as determined by the Board of Directors of the Company) or (b)
the present value (discounted at the rate implicit in the terms of the relevant
lease) of the obligation of the lessee for net rental payments during the
remaining term of the lease (including any period for which such lease has been
extended).
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ARTICLE 5
SUCCESSORS
Section 5.01. When Company May Merge, etc.
The Company shall not consolidate or merge with or into (whether or
not the Company is the surviving corporation), or sell, assign, transfer,
lease, convey or otherwise dispose of all or substantially all of its
properties or assets in one or more related transactions to any Person unless:
(1) the Company is the surviving corporation or the
entity or Person formed by or surviving any such consolidation or
merger (if other than the Company) or to which such sale, assignment,
transfer, lease, conveyance or other disposition shall have been made
is a corporation organized and existing under the laws of the United
States, any state thereof or the District of Columbia;
(2) the entity or Person formed by or assuming any
such consolidation or merger (if other than the Company) or the
entity or Person to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made assumes by
supplemental indenture all the obligations of the Company under the
Securities and this Indenture; and
(3) immediately prior to and after the transaction no
Default or Event of Default exists.
The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
Section 5.02. Successor Corporation Substituted.
Upon any consolidation or merger, or any transfer by the Company
(other than by lease) of all or substantially all of the assets of the Company
in accordance with Section 5.01, the successor corporation formed by such
consolidation or into which the Company is merged or to which such transfer is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein. In the event of
any such transfer, the predecessor Company shall be released and discharged
from all liabilities and obligations in respect of the Securities and the
Indenture, and the predecessor Company may be dissolved, wound up or liquidated
at any time thereafter.
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ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
An "Event of Default" occurs with respect to Securities of any
particular series if:
(1) the Company defaults in the payment of interest on
any Security of that series when the same becomes due and payable and
the Default continues for a period of 30 days;
(2) the Company defaults in the payment of the
principal of any Security of that series when the same becomes due
and payable at maturity, upon redemption or otherwise;
(3) an Event of Default, as defined in the Securities
of that series, occurs and is continuing, or the Company fails to
comply with any of its other agreements in the Securities of that
series or in this Indenture with respect to that series and the
Default continues for the period and after the notice specified
below;
(4) the Company pursuant to or within the meaning of
any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for
relief against it in an involuntary case;
(C) consents to the appointment of a Custodian
of it or for all or substantially all of its property;
(D) makes a general assignment for the benefit
of its creditors; or
(E) admits in writing its inability generally
to pay its debts as the same become due.
(5) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that:
(A) is for relief against the Company in an
involuntary case;
(B) appoints a Custodian of the Company or for
all or substantially all of its property; or
(C) orders the liquidation of the Company;
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and the order or decree remains unstayed and in effect for
60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
A Default under clause (3) above is not an Event of Default with
respect to a particular series of Securities until the Trustee or the Holders
of at least 25% in principal amount of the then outstanding Securities of that
series notify the Company of the Default and the Company does not cure the
Default within 30 days after receipt of the notice. The notice must specify
the Default, demand that it be remedied and state that the notice is a "Notice
of Default."
Section 6.02. Acceleration.
If an Event of Default with respect to Securities of any series
(other than an Event of Default specified in clauses (4) and (5) of Section
6.01) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of at least 25% in principal amount of the then outstanding Securities
of that series by notice to the Company and the Trustee, may declare the unpaid
principal (or, in the case of Original Issue Discount Securities, such lesser
amount as may be provided for in such Securities) of and any accrued interest
on all the Securities of that series to be due and payable on the Securities of
that series. Upon such declaration the principal (or such lesser amount) and
interest shall be due and payable immediately. If an Event of Default
specified in clause (4) or (5) of Section 6.01 occurs, all of such amount shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder. The Holders of a majority in
principal amount of the then outstanding Securities of that series by notice to
the Trustee may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default with respect to that series have been cured or waived except nonpayment
of principal (or such lesser amount) or interest that has become due solely
because of the acceleration.
Section 6.03. Other Remedies.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may pursue any available remedy to
collect the payment of principal or interest on the Securities of that series
or to enforce the performance of any provision of the Securities of that series
or this Indenture.
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The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All
remedies are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults.
Subject to Section 9.02, the Holders of a majority in principal
amount of the then outstanding Securities of any series by notice to the
Trustee may waive an existing Default or Event of Default with respect to that
series and its consequences except a Default or Event of Default in the payment
of the principal (including any mandatory sinking fund or like payment) of or
interest on any Security of that series.
Section 6.05. Control by Majority.
The Holders of a majority in principal amount of the then outstanding
Securities of any series may direct the time, method and place of conducting
any proceeding for any remedy with respect to that series available to the
Trustee or exercising any trust or power conferred on it. However, the Trustee
may refuse to follow any direction that conflicts with law or this Indenture,
that is unduly prejudicial to the rights of another Holder of Securities of
that series, or that may involve the Trustee in personal liability. The
Trustee may take any other action which it deems proper which is not
inconsistent with any such direction.
Section 6.06. Limitation on Suits.
A Holder of Securities of any series may not pursue a remedy with
respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice of
a continuing Event of Default with respect to that series;
(2) the Holders of at least 25% in principal amount of
the then outstanding Securities of that series make a written request
to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee
indemnity satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer and, if
requested, the provision of indemnity; and
(5) during such 60-day period the Holders of a
majority in principal amount of the then outstanding Securities of
that series do not give the Trustee a direction inconsistent with the
request.
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No Holder of any series of Securities may use this Indenture to prejudice the
rights of another Holder of Securities of that series or to obtain a preference
or priority over another Holder of Securities of that series.
Section 6.07. Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security to receive payment of principal of and interest, if
any, on the Security, on or after the respective due dates expressed in the
Security, or to bring suit for the enforcement of any such payment on or after
such respective dates, shall not be impaired or affected without the consent of
the Holder.
Section 6.08. Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) occurs and
is continuing with respect to Securities of any series, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount of principal (or such portion of the principal as may be
specified as due upon acceleration at that time in the terms of that series of
Securities) and interest, if any, remaining unpaid on the Securities of that
series then outstanding, together with (to the extent lawful) interest on
overdue principal and interest, and such further amount as shall be sufficient
to cover the costs and, to the extent lawful, expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel and any other amounts due the Trustee under
Section 7.07.
Section 6.09. Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee and the Securityholders allowed in any judicial proceedings relative to
the Company (or any other obligor on the Securities), its creditors or its
property and shall be entitled to and empowered to collect and receive any
money or other property payable or deliverable on any such claims and to
distribute the same, and any custodian in any such judicial proceedings 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 to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agent and counsel, and any other amounts due the Trustee under Section
7.07. Nothing contained herein shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder 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 Securityholder in any such proceeding.
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Section 6.10. Priorities.
If the Trustee collects any money with respect to Securities of any
series pursuant to this Article, it shall pay out the money in the following
order:
First: to the Trustee, its agents and attorneys
for amounts due under Section 7.07,
including payment of all compensation,
expense and liabilities incurred, and all
advances made, by the Trustee and the
costs and expenses of collection;
Second: to Securityholders for amounts due and
unpaid on the Securities of such series
for principal and interest, ratably,
without preference or priority of any
kind, according to the amounts due and
payable on the Securities of such series
for principal and interest, respectively;
and
Third: to the Company or to such party as a court
of competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Securities of any series pursuant to this Section. The Trustee
shall notify the Company in writing reasonably in advance of any such record
date and payment date.
Section 6.11. 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 or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defense made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10% in principal
amount of the then outstanding Securities.
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ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default known
to the Trustee:
(i) the duties of the Trustee shall be determined
solely by the express provisions of this Indenture
or the TIA and the Trustee need perform only those
duties that are specifically set forth in this
Indenture or the TIA and no others, and no implied
covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions
expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the
requirements of this Indenture. However, the
Trustee shall examine the certificates and
opinions to determine whether or not they conform
to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph does not limit the effect of
paragraph (b) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a responsible
officer of the Trustee, unless it is proved that
the Trustee was negligent in ascertaining the
pertinent facts; and
(iii) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith
in accordance with a direction received by it
pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or incur any liability. The Trustee may refuse to
perform any duty or exercise
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any right or power unless it receives security and indemnity satisfactory to it
against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Absent written instruction from the Company, the Trustee shall not be required
to invest any such money. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
Section 7.02. Rights of Trustee.
Subject to TIA Section 315(a) through (d):
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, or both. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers, unless the Trustee's conduct constitutes negligence.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice form the Company shall be sufficient
if signed by an Officer of the Company.
Section 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to TIA
Sections 310(b) and 311.
Section 7.04. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for
any statement in the Securities other than its certificate of authentication.
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Section 7.05. Notice of Defaults.
If a Default or Event of Default with respect to the Securities of any
series occurs and is continuing and if it is known to the Trustee, the Trustee
shall mail to all Holders of Securities of that series a notice of the Default
or Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment on any such Security, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of such
Securityholders.
Section 7.06. Reports by Trustee to Holders.
Within 60 days after each November 15 beginning with November 15,
1995, the Trustee with respect to any series of Securities shall mail to
Holders of Securities of that series as provided in TIA Section 313(c) a brief
report dated as of such November 15 that complies with TIA Section 313(a) (if
such report is required by TIA Section 313(a)). The Trustee shall also comply
with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be mailed to the Company and filed with the Commission and each stock
exchange on which any of the Securities are listed, as required by TIA Section
313(d). The Company shall notify the Trustee when the Securities are listed on
any stock exchange.
Section 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed upon in writing for its services hereunder.
The Company shall reimburse the Trustee upon written request for all reasonable
out-of-pocket expenses incurred by it. Such expenses shall include the
reasonable compensation and out-of-pocket expenses of the Trustee's agents and
counsel.
The Company shall indemnify the Trustee for any loss or liability
incurred by it, without negligence or bad faith on its part, in connection with
the administration of this Indenture and its duties hereunder. The Trustee
shall notify the Company promptly of any claim for which it may seek indemnity.
The Company shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company shall pay the
reasonable fees and expenses of such counsel. The Company need not pay for any
settlement made without its consent.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee in its capacity as Trustee, except money or
property held in trust to pay principal and interest on particular Securities.
Such lien will survive the satisfaction and discharge of this Indenture.
If the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(4) or (5) occurs, the expenses and the
compensation for the services will be intended to constitute expenses of
administration under any applicable Bankruptcy Law.
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Section 7.08. Replacement of Trustee.
A resignation or removal of the Trustee with respect to one or more
or all series of Securities and appointment of a successor Trustee shall become
effective only upon the successor Trustee's acceptance of appointment as
provided in this Section.
The Trustee may resign with respect to one or more or all series of
Securities by so notifying the Company in writing. The Holders of a majority
in principal amount of the then outstanding Securities of any series may remove
the Trustee as to that series by so notifying the Trustee in writing and may
appoint a successor Trustee with the Company's consent. The Company may remove
the Trustee with respect to one or more or all series of Securities if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an
insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If, as to any series of Securities, the Trustee resigns or is removed
or if a vacancy exists in the office of Trustee for any reason, the Company
shall promptly appoint a successor Trustee for that series. Within one year
after the successor Trustee with respect to any series takes office, the
Holders of a majority in principal amount of the then outstanding Securities of
that series may appoint a successor Trustee to replace the successor Trustee
appointed by the Company. If a successor Trustee as to a particular series
does not take office within 60 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of at least 10% in
principal amount of the then outstanding Securities of that series may petition
any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10 with respect to any
series, any Holder of Securities of that series who satisfies the requirements
of TIA Section 310(b) may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee for that
series.
A successor Trustee as to any series of Securities shall deliver a
written acceptance of its appointment to the retiring Trustee and to the
Company. Immediately after that, the retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee (subject to the
lien provided for in Section 7.07), the resignation or removal of the retiring
Trustee shall become effective, and the successor Trustee shall have all the
rights, powers and duties of the Trustee under this Indenture as to that
series. The successor Trustee shall mail a notice of its succession to the
Holders of Securities of that series.
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Notwithstanding replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.07 hereof shall continue for
the benefit of the retiring trustee.
In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (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) shall contain such provisions as shall be 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 or desirable to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; provided,
however, that nothing herein or in such supplemental Indenture shall constitute
such Trustee co-trustees of the same trust and that each such Trustee shall be
trustee of a trust hereunder separate and apart from any trust hereunder
administered by any other such Trustee.
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.
Section 7.09. Successor Trustee by Merger, etc.
If the Trustee as to any series of Securities consolidates, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee as to that series.
Section 7.10. Eligibility; Disqualification.
Each series of Securities shall always have a Trustee who satisfies
the requirements of TIA Section 310(a). The Trustee as to any series of
Securities shall always have a combined capital and surplus of at least
$100,000,000 as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
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Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01. Termination of Company's Obligations.
Except as otherwise provided in this Section, the Company may
terminate its obligations under the Securities of any series and this Indenture
with respect to that series, if:
(a) all Securities of that series previously
authenticated and delivered (other than destroyed, lost or stolen
Securities which have been replaced or Securities of that series
which are paid pursuant to Section 4.01 or Securities of that series
for whose payment money or securities has theretofore been held in
trust and thereafter repaid to the Company, as provided in Section
8.03) have been delivered to the Trustee for cancellation and the
Company has paid all sums payable by it hereunder with respect to
such series; or
(b) (1) the Securities of that series mature
within one year or all of them are to be called for redemption within
one year after arrangements satisfactory to the Trustee for giving
the notice of redemption; and
(2) the Company irrevocably deposits in trust with
the Trustee during such one-year period, under the terms of an
irrevocable trust agreement in form and substance satisfactory to the
Trustee, as trust funds solely for the benefit of the Holders of
Securities of that series for that purpose, money or U.S. Government
Obligations, or a combination thereof, with the U.S. Government
Obligations maturing as to principal and interest in such amounts and
at such times as are sufficient, without consideration of any
reinvestment of such interest, to pay principal of and interest on the
Securities of that series to maturity or redemption, as the case may
be, and to pay all other sums payable by it hereunder; or
(c) (1) the Company irrevocably deposits in trust
with the Trustee under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee, as trust funds solely
for the benefit of the Holders of Securities of that series for that
purpose, money or U.S. Government Obligations, or a combination
thereof, with the U.S. Government Obligations maturing as to
principal and interest in such amounts and at such times as are
sufficient, without consideration of any reinvestment of such
interest, to pay principal of and interest on the Securities of that
series to maturity or redemption, as the case may be;
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(2) the Company shall have delivered to the Trustee
either (A) a ruling directed to the Trustee received from the
Internal Revenue Service to the effect that the Holders of the
Securities of that series will not recognize income, gain or loss for
federal income tax purposes as a result of the Company's exercise of
its option under this clause (c) and will be subject to federal income
tax on the same amount and in the same manner and at the same times as
would have been the case if such option had not been exercised, or (B)
an Opinion of Counsel to the same effect as the ruling described in
subclause (A) above accompanied by a ruling to that effect published
by the Internal Revenue Service, unless there has been a change in the
applicable federal income tax law since the date of this Indenture
such that a ruling from the Internal Revenue Service is no longer
required;
(3) the Company has paid or caused to be paid all sums
then payable by the Company hereunder; and
(4) the Company has delivered to the Trustee for that
series an Officers' Certificate and an Opinion of Counsel, each
stating that all conditions precedent provided for in this clause (c)
relating to termination of obligations of the Company have been
complied with.
The Company's obligations under Sections 2.03, 2.04, 2.05, 2.06,
2.07, 4.01 (together with its payment obligations under the Securities of that
series), 7.07, 7.08, 8.03 and 8.04 shall survive until the Securities of that
series are no longer outstanding. Thereafter, and after any discharge pursuant
to clause (a) above, only the Company's obligations in Sections 7.07 and 8.03
shall survive. If and when a ruling from the Internal Revenue Service or
Opinion of Counsel referred to in clause (c)(2) above is able to be provided
specifically without regard to, and not in reliance upon, the continuance of
the Company's obligations under Section 4.01 and its payment obligations under
the Securities of that series, then the Company's payment obligations under
such Section 4.01 and the Securities of that series shall cease upon delivery
to the Trustee of such ruling or Opinion of Counsel and compliance with the
other conditions precedent provided for in clause (c) above relating to the
satisfaction and discharge of this Indenture.
After any such irrevocable deposit the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of that series and under this Indenture except for those surviving
obligations specified above.
"U.S. Government Obligations" means direct obligations of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged. U.S. Government Obligations shall not be
callable at the issuer's option.
Section 8.02. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01 with respect to Securities of any
series. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying
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Agent and in accordance with this Indenture to the payment of principal and
interest on the Securities of that series.
Section 8.03. Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company
upon request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon
request any money held by them for the payment of principal or interest that
remains unclaimed for two years after the date upon which such payment shall
have become due. After payment to the Company, Securityholders entitled to the
money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person, provided, however,
that the Trustee or such Paying Agent before being required to make such
repayment may at the expense of the Company mail to each such holder a notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such mailing any
unclaimed balance of such money then remaining will be repaid to the Company.
ARTICLE 9
SUPPLEMENTS, AMENDMENTS AND WAIVERS
Section 9.01. Without Consent of Holders.
The Company and the Trustee as to any series of Securities may
supplement or amend this Indenture or the Securities without notice to or the
consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5;
(3) to comply with any requirements of the Commission
in connection with the qualification of this Indenture under the TIA;
(4) to provide for uncertificated Securities in
addition to or in place of certificated Securities;
(5) to add to, change or eliminate any of the
provisions of this Indenture in respect of one or more series of
Securities, provided, however, 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
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there is no outstanding Security of any series created prior to the
execution of such supplemental indenture and entitled to the benefit
of such provision;
(6) to make any change that does not adversely affect
in any material respect the interests of the Securityholders of any
series; or
(7) to establish additional series of Securities as
permitted by Section 2.01.
Section 9.02. With Consent of Holders.
Subject to Section 6.07, the Company and the Trustee as to any series
of Securities may amend this Indenture or the Securities of that series with
the written consent of the Holders of a majority in principal amount of the
then outstanding Securities of each series affected by the amendment, with each
such series voting as a separate class. The Holders of a majority in principal
amount of the then outstanding Securities of any series may also waive
compliance in a particular instance by the Company with any provision of this
Indenture with respect to that series or the Securities of that series;
provided, however, that without the consent of each Securityholder affected, an
amendment or waiver may not:
(1) reduce the percentage of the principal amount of
Securities whose Holders must consent to an amendment or waiver;
(2) reduce the rate of, or change the time for payment
of interest on, any Security;
(3) reduce the principal of or change the fixed
maturity of any Security or alter the redemption provisions with
respect thereto;
(4) make any Security payable in money other than that
stated in the Security;
(5) make any change in Section 6.04, 6.07 or 9.02
(this sentence); or
(6) waive a default in the payment of the principal
of, or interest on, any Security, except to the extent otherwise
provided for in Section 6.02.
An amendment or waiver under this Section which waives, changes or
eliminates any covenant or other provision of this Indenture which has
expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of
such series with respect to such covenant or other provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Securities of
any other series.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver, but
it shall be sufficient if such consent approves the substance thereof.
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After an amendment or waiver under this Section becomes effective,
the Company shall mail to Holders of Securities of each series affected thereby
a notice briefly describing the amendment or waiver. The Company will mail
supplemental indentures to Holders upon request. Any failure of the Company to
mail such notice, or any defect therein, shall not, however, in any way impair
or affect the validity of any such supplemental indenture or waiver.
Section 9.03. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made
on any Security; provided, however, that unless a record date shall have been
established pursuant to Section 2.13(a), any such Holder or subsequent Holder
may revoke the consent as to his Security or portion of a Security if the
Trustee receives the notice of revocation before the date on which the
amendment or waiver becomes effective. An amendment or waiver shall become
effective on receipt by the Trustee of consents from the Holders of the
requisite percentage principal amount of the outstanding Securities of any
series, and thereafter shall bind every Holder of Securities of that series.
Section 9.04. Notation on or Exchange of Securities.
If an amendment or waiver changes the terms of a Security: (a) the
Trustee may require the Holder of the Security to deliver it to the Trustee,
the Trustee may place an appropriate notation on the Security about the changed
terms and return it to the Holder and the Trustee may place an appropriate
notation on any Security thereafter authenticated; or (b) if the Company or the
Trustee so determines, the Company in exchange for the Security shall issue and
the Trustee shall authenticate a new Security that reflects the changed terms.
Section 9.05. Trustee to Sign Amendments, etc.
The Trustee shall receive an Opinion of Counsel stating that the
execution of any amendment or waiver proposed pursuant to this Article is
authorized or permitted by this Indenture. Subject to the preceding sentence,
the Trustee shall sign such amendment or waiver if the same does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. The
Trustee may, but shall not be obligated to, execute any such amendment,
supplement or waiver which affects the Trustee's own rights, duties,
liabilities or immunities under this Indenture or otherwise.
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ARTICLE 10
MISCELLANEOUS
Section 10.01. Indenture Subject to Trust Indenture Act.
This Indenture is subject to the provisions of the TIA which are
required to be part of this Indenture, and shall, to the extent applicable, be
governed by such provisions.
Section 10.02. Notices.
Any notice or communication is duly given if in writing and delivered
in person or sent by first-class mail (registered or certified, return receipt
requested), telecopier or overnight air courier guaranteeing next day delivery,
addressed as follows:
If to the Company:
Xxxxxxxx Gold Corporation
0000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
If to the Trustee:
-------------------------------
-------------------------------
-------------------------------
-------------------------------
Attention:[___________________]
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar.
Failure to mail a notice or communication to a Securityholder or any defect in
it shall not affect its sufficiency with respect to other Securityholders. If
the Company mails a notice or communication to Securityholders, it shall mail a
copy to the Trustee at the same time.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
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Section 10.03. Communication By Holders With Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities.
The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA Section 312(c).
Section 10.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the
opinion of the signers, all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been
complied with; and
(b) an Opinion of Counsel stating that, in the opinion
of such counsel, all such conditions precedent have been complied
with.
Section 10.05. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificate provided for in Section 4.03) shall include:
(1) a statement that the Person making such
certificate or opinion has read such covenant or condition;
(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 such Person,
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 or not, in the opinion
of such Person, such condition or covenant has been complied with;
provided, however, that with respect to matters of fact an Opinion of
Counsel may rely on an officer's certificate or certificates of
public officials.
Section 10.06. Rules by Trustee and Agents.
The Trustee as to Securities of any series may make reasonable rules
for action by or at a meeting of Holders of Securities of that series. The
Registrar and any Paying Agent or Authenticating Agent may make reasonable
rules and set reasonable requirements for their functions.
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Section 10.07. Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in New York, New York or Englewood, Colorado, are not required to
be open. If a payment date is a Legal Holiday at a place of payment, payment
may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
Section 10.08. No Recourse Against Others.
A past, present or future director, officer, employee, stockholder or
incorporator, as such, of the Company or any successor corporation shall not
have any liability for any obligations of the Company under the Securities or
the Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration of issuance of the Securities. Such waiver may not be effective
to waive liabilities under the federal securities laws and it is the view of
the Commission that such a waiver is against public policy.
Section 10.09. Counterparts.
This Indenture may be executed by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Section 10.10. Governing Law.
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS
INDENTURE AND THE SECURITIES, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS
THEREOF.
Section 10.11. Severability.
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 10.12. Effect of Headings, Table of Contents, etc.
The Article and Section headings herein and the table of contents are
for convenience only and shall not affect the construction hereof.
Section 10.13. Successors and Assigns.
All covenants and agreements of the Company in this Indenture and the
Securities shall bind its successors and assigns. All agreements of the
Trustee in this Indenture shall bind its successor.
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Section 10.14. No Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan
or debt agreement of the Company or any Subsidiary. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have executed this Indenture
as of the date first above written.
Xxxxxxxx Gold Corporation
By
-------------------------------------
Name:
Title:
[ ],
as Trustee
By
-------------------------------------
Name:
Title:
X-0
00
XXXXX XX XXXXXXXX )
) ss.
CITY OF ENGLEWOOD )
On this _____ day of _____________, before me personally came
__________________, to me known, who being by me duly sworn, did depose and say
that he is _________________ of Xxxxxxxx Gold Corporation, one of the entities
described in and which executed the above instrument; and that he signed his
name thereto by authority of the Board of Directors of such entity.
-------------------------
Notary Public
(Notarial Seal)
STATE OF
---------- )
) ss.
CITY OF )
-----------
On this _____ day of _____________, before me personally came
__________________, to me known, who being by me duly sworn, did depose and say
that he is Trust Officer of _______________________________, one of the
entities described in and which executed the above instrument; and that he
signed his name thereto by authority of the Board of Directors of such entity.
-------------------------
Notary Public
(Notarial Seal)
S-2
