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EXHIBIT 4.6
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EOG RESOURCES, INC.
TO
BANK OF NEW YORK,
TRUSTEE
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INDENTURE
DATED AS OF ________________________, 2000
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SUBORDINATED DEBT SECURITIES
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EOG RESOURCES, INC.
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE, OF THE
TRUST INDENTURE ACT OF 1939:
Trust Indenture Indenture
Act Section Section
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Section 310(a)(1)................................................................609
(a)(2)................................................................609
(a)(3)................................................................Not Applicable
(a)(4)................................................................Not Applicable
(b)...................................................................608
...................................................................610
Section 311(a)...................................................................613
(b)...................................................................613
Section 312(a)...................................................................701
...................................................................702(a)
(b)...................................................................702(b)
(c)...................................................................702(c)
Section 313(a)...................................................................703(a)
(b)...................................................................703(a)
(c)...................................................................703(a)
(d)...................................................................703(b)
Section 314(a)...................................................................704
(a)(4)................................................................101
...................................................................1004
(b)...................................................................Not Applicable
(c)(1)................................................................102
(c)(2)................................................................102
(c)(3)................................................................Not Applicable
(d)...................................................................Not Applicable
(e)...................................................................102
Section 315(a)...................................................................601
(b)...................................................................602
(c)...................................................................601
(d)...................................................................601
(e)...................................................................514
Section 316(a)...................................................................101
(a)(1)(A).............................................................502
...................................................................512
(a)(1)(B).............................................................513
(a)(2)................................................................Not Applicable
(b)...................................................................508
(c)...................................................................104(c)
Section 317(a)(1)................................................................503
(a)(2)................................................................504
(b)...................................................................1003
Section 318(a)...................................................................107
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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TABLE OF CONTENTS
ARTICLE ONE. Definitions and Other Provisions of General Application...................................1
SECTION 101. Definitions.............................................................................1
"Act"........................................................................................2
"Affiliate"..................................................................................2
"Associated Rights"..........................................................................2
"Authenticating Agent".......................................................................2
"Board of Directors".........................................................................2
"Board Resolution"...........................................................................2
"Business Day"...............................................................................2
"Commission".................................................................................2
"Common Stock"...............................................................................2
"Company"....................................................................................2
"Company Request" or "Company Order".........................................................3
"Conversion Agent"...........................................................................3
"Conversion Price"...........................................................................3
"Corporate Trust Office".....................................................................3
"corporation"................................................................................3
"Date of Conversion".........................................................................3
"Defaulted Interest".........................................................................3
"Depository".................................................................................3
"Eligible Obligations".......................................................................3
"Event of Default"...........................................................................3
"Federal Bankruptcy Act".....................................................................3
"Global Security"............................................................................3
"Holder".....................................................................................3
"Indenture"..................................................................................3
"interest"'..................................................................................4
"Interest Payment Date"......................................................................4
"Last Sale Price"............................................................................4
"Lien".......................................................................................4
"Maturity"...................................................................................4
"Officers' Certificate"......................................................................4
"Opinion of Counsel".........................................................................4
"Original Issue Discount Security"...........................................................4
"Outstanding"................................................................................4
"Paying Agent"...............................................................................5
"Person".....................................................................................6
"Place of Payment"...........................................................................6
"Predecessor Security".......................................................................6
"Redemption Date"............................................................................6
"Redemption Price"...........................................................................6
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Note: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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"Regular Record Date"........................................................................6
"Responsible Officer"........................................................................6
"Securities".................................................................................6
"Security Register" and "Security Registrar".................................................6
"Senior Indebtedness"........................................................................6
"Special Record Date"........................................................................7
"Stated Maturity"............................................................................7
"Subsidiary".................................................................................7
"Trading Day"................................................................................7
"Trustee"....................................................................................7
"Trust Indenture Act"........................................................................7
"U.S. Government Obligations"................................................................7
"Vice President".............................................................................8
SECTION 102. Compliance Certificates and Opinions....................................................8
SECTION 103. Form of Documents Delivered to Trustee..................................................8
SECTION 104. Acts of Holders; Record Dates...........................................................9
SECTION 105. Notices, Etc., to Trustee and Company..................................................10
SECTION 106. Notice to Holders; Waiver..............................................................10
SECTION 107. Conflict with Trust Indenture Act......................................................11
SECTION 108. Effect of Headings and Table of Contents...............................................11
SECTION 109. Successors and Assigns.................................................................11
SECTION 110. Separability Clause....................................................................11
SECTION 111. Benefits of Indenture..................................................................11
SECTION 112. Governing Law..........................................................................11
SECTION 113. Interest Limitation....................................................................11
SECTION 114. Legal Holidays.........................................................................12
ARTICLE TWO. Security Forms...........................................................................13
SECTION 201. Forms Generally........................................................................13
SECTION 202. Form of Trustee's Certificate of Authentication........................................13
ARTICLE THREE. The Securities.........................................................................13
SECTION 301. Amount Unlimited; Issuable in Series...................................................13
SECTION 302. Denominations..........................................................................16
SECTION 303. Execution, Authentication, Delivery and Dating.........................................16
SECTION 304. Temporary Securities...................................................................17
SECTION 305. Registration, Registration of Transfer and Exchange....................................17
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.......................................19
SECTION 307. Payment of Interest; Interest Rights Preserved.........................................20
SECTION 308. Persons Deemed Owners..................................................................21
SECTION 309. Cancellation...........................................................................21
SECTION 310. Computation of Interest................................................................22
ARTICLE FOUR. Satisfaction and Discharge..............................................................22
SECTION 401. Satisfaction and Discharge of Indenture................................................22
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SECTION 402. Application of Trust Money.............................................................23
ARTICLE FIVE. Remedies................................................................................23
SECTION 501. Events of Default......................................................................23
SECTION 502. Acceleration of Maturity; Rescission and Annulment.....................................24
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee........................26
SECTION 504. Trustee May File Proofs of Claim.......................................................26
SECTION 505. Trustee May Enforce Claims Without Possession of Securities............................27
SECTION 506. Application of Money Collected.........................................................27
SECTION 507. Limitation on Suits....................................................................27
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest..............28
SECTION 509. Restoration of Rights and Remedies.....................................................28
SECTION 510. Rights and Remedies Cumulative.........................................................29
SECTION 511. Delay or Omission Not Waiver...........................................................29
SECTION 512. Control by Holders.....................................................................29
SECTION 513. Waiver of Past Defaults................................................................29
SECTION 514. Undertaking for Costs..................................................................30
SECTION 515. Waiver of Stay or Extension Laws.......................................................30
ARTICLE SIX. The Trustee..............................................................................30
SECTION 601. Certain Duties and Responsibilities....................................................30
SECTION 602. Notice of Defaults.....................................................................31
SECTION 603. Certain Rights of Trustee..............................................................31
SECTION 604. Not Responsible for Recitals or Issuance of Securities.................................32
SECTION 605. May Hold Securities....................................................................33
SECTION 606. Money Held in Trust....................................................................33
SECTION 607. Compensation and Reimbursement.........................................................33
SECTION 608. Disqualification; Conflicting Interests................................................33
SECTION 609. Corporate Trustee Required; Eligibility................................................34
SECTION 610. Resignation and Removal; Appointment of Successor......................................34
SECTION 611. Acceptance of Appointment by Successor.................................................35
SECTION 612. Merger, Conversion, Consolidation or Succession to Business............................36
SECTION 613. Preferential Collection of Claims Against Company......................................37
SECTION 614. Appointment of Authenticating Agent....................................................37
ARTICLE SEVEN. Holders' Lists and Reports by Trustee and Company......................................38
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders..............................38
SECTION 702. Preservation of Information; Communications to Holders.................................39
SECTION 703. Reports by Trustee.....................................................................39
SECTION 704. Reports by Company.....................................................................39
ARTICLE EIGHT. Consolidation, Merger and Sale.........................................................40
SECTION 801. Consolidation, Merger or Sale Permitted Under Certain Conditions.......................40
SECTION 802. Substitution of Successor Corporation for the Company..................................40
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SECTION 803. Opinion of Counsel and Officers' Certificate to be given to Trustee....................41
ARTICLE NINE. Supplemental Indentures.................................................................41
SECTION 901. Supplemental Indentures Without Consent of Holders.....................................41
SECTION 902. Supplemental Indentures with Consent of Holders........................................42
SECTION 903. Execution of Supplemental Indentures...................................................43
SECTION 904. Effect of Supplemental Indentures......................................................44
SECTION 905. Conformity with Trust Indenture Act....................................................44
SECTION 906. Reference in Securities to Supplemental Indentures.....................................44
ARTICLE TEN. Covenants................................................................................44
SECTION 1001. Payment of Principal, Premium and Interest............................................44
SECTION 1002. Maintenance of Office or Agency.......................................................44
SECTION 1003. Money for Securities Payments to Be Held in Trust.....................................45
SECTION 1004. Corporate Existence...................................................................46
SECTION 1005. Maintenance of Properties.............................................................46
SECTION 1006. Payment of Taxes and Other Claims.....................................................46
SECTION 1007. Statement by Officers as to Default...................................................46
SECTION 1008. Waiver of Certain Covenants...........................................................47
ARTICLE ELEVEN. Redemption of Securities..............................................................47
SECTION 1101. Applicability of ARTICLE..............................................................47
SECTION 1102. Election to Redeem; Notice to Trustee.................................................47
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.....................................48
SECTION 1104. Notice of Redemption..................................................................48
SECTION 1105. Deposit of Redemption Price...........................................................49
SECTION 1106. Securities Payable on Redemption Date.................................................49
SECTION 1107. Securities Redeemed in Part...........................................................49
ARTICLE TWELVE. Sinking Funds.........................................................................50
SECTION 1201. Applicability of ARTICLE..............................................................50
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.................................50
SECTION 1203. Redemption of Securities for Sinking Fund.............................................50
ARTICLE THIRTEEN. Immunity of Incorporators, Stockholders, Officers and Directors.....................51
SECTION 1301. Liability Solely Corporate............................................................51
ARTICLE FOURTEEN. Conversion..........................................................................51
SECTION 1401. Applicability of ARTICLE..............................................................51
SECTION 1402. Exercise of Conversion Privilege......................................................52
SECTION 1403. Fractional Interests..................................................................53
SECTION 1404. Adjustment of Conversion Price........................................................53
SECTION 1405. Continuation of Conversion Privilege in Case of Merger, Consolidation or Sale of
Assets................................................................................56
SECTION 1406. Notice of Certain Events..............................................................57
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SECTION 1407. Taxes on Conversion...................................................................58
SECTION 1408. Company to Provide Stock..............................................................58
SECTION 1409. Disclaimer of Responsibility for Certain Matters......................................59
SECTION 1410. Return of Funds Deposited for Redemption of Converted Securities......................59
ARTICLE FIFTEEN. Subordination........................................................................59
SECTION 1501. Securities Subordinated to Senior Indebtedness........................................59
SECTION 1502. Reliance on Certificate of Liquidating Agent; Further Evidence as to Ownership of
Senior Indebtedness...................................................................62
SECTION 1503. Payment Permitted If No Default.......................................................62
SECTION 1504. Disputes with Holders of Certain Senior Indebtedness..................................62
SECTION 1505. Trustee Not Charged with Knowledge of Prohibition.....................................63
SECTION 1506. Trustee to Effectuate Subordination...................................................63
SECTION 1507. Rights of Trustee as Holder of Senior Indebtedness....................................63
SECTION 1508. ARTICLE Applicable to Paying Agents...................................................64
SECTION 1509. Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders
of Senior Indebtedness................................................................64
SECTION 1510. Trustee Not Fiduciary for Holders of Senior Indebtedness..............................64
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SUBORDINATED INDENTURE, dated as of ___________, 2000, between EOG
RESOURCES, INC., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
0000 Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, and Bank of New York, a
national banking association duly organized and existing under the laws of the
United States of America, as Trustee (herein called the "Trustee"), the office
of the Trustee at which at the date hereof its corporate trust business is
principally administered being _______________________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as provided in this Indenture.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE.
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION.
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation; and
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the words "herein", "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Associated Rights" means any rights to purchase shares of the Issuer's
capital stock or other securities that are associated with any class of stock
constituting Common Stock for purposes hereof if at the time of the issuance
thereof such rights are not separable from any class of stock except upon the
occurrence of a contingency, whether such rights exist at the date of the
execution hereof or are thereafter issued by the Company as a dividend on any
such class of stock or otherwise.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment, means
any Monday, Tuesday, Wednesday, Thursday or Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Stock" means the common stock, par value $1.00 per share, of
the Issuer as the same exists at the date of execution and delivery of this
Indenture or other capital stock of the Issuer into which such common stock is
reclassified or changed from time to time.
"Company" means the corporation named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
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"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Conversion Agent" means any Person authorized by the Company to issue
Common Stock upon conversion of any one or more series of convertible Securities
on behalf of the Company.
"Conversion Price" has the meaning set forth in Section 1404.
"Corporate Trust Office" means the principal office of the Trustee in
New York, New York, at which at any particular time its corporate trust business
with respect to the Indenture shall be administered, which office at the date
hereof is that indicated in the introductory paragraph of this Indenture, except
that with respect to the presentation of Securities for payment or for
registration of transfer and exchange, such term shall mean the office of the
Trustee, which office at the date hereof is located at ______________________,
Attention: ____________________.
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Date of Conversion" has the meaning set forth in Section 1402.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depository for such series by the Company
pursuant to Section 301.
"Eligible Obligations" means interest bearing obligations as a result
of the deposit of which the Securities are rated in the highest generic
long-term debt rating category assigned to legally defeased debt by one or more
nationally recognized rating agencies.
"Event of Default" has the meaning specified in Section 501.
"Federal Bankruptcy Act" means the Bankruptcy Code of 1978, as amended,
or Title 11 of the United States Code.
"Global Security" means a Security bearing the legend specified in
Section 204 evidencing all or part of a series of Securities, issued to the
Depository for such series or its nominee, and registered in the name of such
Depository or nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant
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to the applicable provisions hereof, including, for all purposes of this
instrument and any such supplemental indenture, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this instrument and any
such supplemental indenture, respectively. The term "Indenture" shall also
include the terms of particular series of Securities established as contemplated
by Section 301; provided, however, that if at any time more than one Person is
acting as Trustee under this instrument, "Indenture" shall mean with respect to
any one or more series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of particular
series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Last Sale Price" has the meaning set forth in Section 1403.
"Lien" means any mortgage, pledge, lien, security interest or similar
charge or encumbrance.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, and who shall be acceptable to the
Trustee.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
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(i) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306 or in exchange
for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee or
Authenticating Agent proof satisfactory to it and the Company that such
Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or whether a
quorum is present at a meeting of Holders of Securities, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, (ii) the principal amount of a Security
denominated in one or more foreign currencies or currency units shall be the
U.S. dollar equivalent, determined in the manner provided as contemplated by
Section 301 on the date of original issuance of such Security, of the principal
amount (or, in the case of an Original Issue Discount Security, the U.S. dollar
equivalent on the date of original issuance of such Security of the amount
determined as provided in (i) above) of such security, and (iii) Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver or upon any such determination as to the presence of a
quorum, only Securities which the Trustee knows to be so owned shall be so
disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any one or more series of Securities
on behalf of the Company.
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"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
officer of the Trustee assigned to the Trustee's corporate trust department,
including in such department any vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any assistant
cashier, any trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of such officer's knowledge of
and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture; provided, however, that if at any time there is more than
one Person acting as Trustee under this instrument, "Securities" with respect to
the Indenture as to which such Person is Trustee shall have the meaning stated
in the first recital of this instrument and shall more particularly mean
Securities authenticated and delivered under this instrument, exclusive,
however, of Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means principal of (and premium, if any) and
unpaid interest on indebtedness of the Company outstanding at any time except
(a) any indebtedness as to which,
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by the terms of the instrument creating or evidencing the same, it is provided
that such indebtedness is not senior in right of payment to the Securities, (b)
the Securities, (c) existing subordinated indebtedness of the Company, (d) any
indebtedness of the Company to a wholly owned Subsidiary of the Company, (e)
interest accruing after the filing of a petition initiating any proceeding
referred to in Sections 501(4) and 501(5) unless such interest is an allowed
claim enforceable against the Company proceeding under federal or state
bankruptcy laws and (f) trade accounts payable.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trading Day" has the meaning set forth in Section 1403.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder,
provided, however, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case are not
callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligations or a specific payment of
interest on or principal of any such U.S. Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided that
(except as required by law) such custodian is not authorized to make any
deduction from the amount
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payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligations evidenced by such
depository receipt.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other set forth in this
Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
such individual has made such examination or investigation as is
necessary to enable such individual to express an informed opinion as
to whether or not such covenant or condition has been complied with;
and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel unless such
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officer knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any such certificate or
opinion of counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is
in the possession of the Company, unless such counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee and, where
it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in
favor of the Trustee and the Company, if made in the manner provided in
this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other
officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to
him the execution thereof. Where such execution is by a signer acting
in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The
fact and date of the execution of any such instrument or writing, or
the authority of the Person executing the same, may also be proved in
any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the
Trust Indenture Act, fix any day as the record date for the purpose of
determining the Holders of Securities of any series entitled to give or
take any request, demand, authorization, direction, notice, consent,
waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders of Securities of such series.
If not set by the Company prior to the first solicitation of a Holder
of Securities of such series made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the
record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of
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Holders required to be provided pursuant to Section 701) prior to such
first solicitation or vote, as the case may be. With regard to any
record date for action to be taken by the Holders of one or more series
of Securities, only the Holders of Securities of such series on such
date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon
such Security.
SECTION 105. Notices, Etc., to Trustee and Company
ANY request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Vice President, Corporate Trust, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at such Holder's address as it appears in the Security Register,
not later than the latest date (if any), and not earlier than the earliest date
(if any), prescribed for the giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
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In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the latter provision shall be deemed to
apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of Texas.
SECTION 113. Interest Limitation.
It is the intention of the Company to conform strictly to all
applicable usury laws and any subsequent revisions, repeals or judicial
interpretations thereof. Accordingly, if the transactions contemplated hereby
would be usurious under any applicable law then, in that event, notwithstanding
anything to the contrary in the Securities or this Indenture, it is agreed as
follows: (i) the aggregate of all consideration which constitutes interest under
applicable law
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with respect to a Security shall under no circumstances exceed the maximum
amount allowed by applicable law, and any excess shall be credited to the
principal amount of such Security (or, if the principal amount of such Security
shall have been paid in full, refunded to the Company), to the extent permitted
by applicable law; and (ii) in the event that the maturity of any Security is
accelerated or in the event of any redemption of such Security, then such
consideration that constitutes interest under applicable law may never include
more than the maximum amount allowed by applicable law, and any excess shall be
credited to the principal amount of such Security (or, if the principal amount
of such Security shall be paid in full, refunded to the Company), to the extent
permitted by applicable law. All calculations made to compute the rate of
interest with respect to a Security for the purpose of determining whether such
rate exceeds the maximum amount allowed by applicable law shall be made, to the
extent permitted by such applicable law, by allocating and spreading during the
period of the full stated term of such Security all interest any time contracted
for, taken, reserved, charged or received by such Holder or by the Trustee on
behalf of any such Holder in connection therewith so that the amount or rate of
interest charged for any and all periods of time during the term of the Security
does not exceed the maximum amount or rate of interest allowed to be charged by
law during the relevant period of time. Notwithstanding any of the foregoing, if
at any time applicable laws shall be changed so as to permit a higher rate or
amount of interest to be charged than that permitted prior to such change, then
unless prohibited by law, references in this Indenture or any Security to
"applicable law" when used in the context of determining the maximum interest or
rate of interest that can be charged shall be deemed to refer to such applicable
law as so amended to allow the greater amount or rate of interest.
The right to accelerate maturity of any Security does not include the
right to accelerate any interest which has not otherwise accrued to the date of
such acceleration, provided, however, that the foregoing shall not prohibit the
continuing accrual after acceleration of interest in accordance with the terms
of the Indenture and such Security.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
(other than a provision of the Securities of any series which specifically
states that such provision shall apply in lieu of this Section)) payment of
interest or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date or Redemption Date, or at the Stated Maturity, provided that
payment on such succeeding Business Day shall not include interest accrued for
the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
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ARTICLE TWO.
SECURITY FORMS.
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially in such form
(not inconsistent with this Indenture) as shall be established by or pursuant to
one or more Board Resolutions (as set forth in a Board Resolution or, to the
extent established pursuant to rather than set forth in a Board Resolution, an
Officer's Certificate detailing such establishment) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have imprinted or otherwise reproduced thereon such legends
or endorsements, not inconsistent with the provisions of this Indenture, as may
be required to comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to general
usage, all as may be determined by the officers executing such Securities, as
evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner permitted by the
rules of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
-----------------------------------,
as Trustee
By
---------------------------------
Authorized Signatory
ARTICLE THREE.
THE SECURITIES.
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
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The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series, the title of the Securities of the
series (which shall distinguish the Securities of the series from Securities of
any other series);
(1) whether the Securities will be convertible into Common
Stock (or cash in lieu thereof) and, if so, the terms and conditions
upon which such conversion will be effected including the initial
Conversion Price and any adjustments thereto in addition to or
different from those set forth in Section 1404, the conversion period
and other provisions in addition to or in lieu of those set forth
herein;
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107
and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of and any
premium on the Securities of the series is payable;
(5) the rate or rates (which may be fixed or variable), or the
method by which such rate or rates shall be determined, at which the
Securities of the series shall bear interest, if any, the date or dates
from which such interest shall accrue, or the method by which such date
or dates shall be determined, the Interest Payment Dates on which any
such interest shall be payable and the Regular Record Date for any
interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium
and interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company, if
the Company is to have that option;
(8) the obligation, if any, and the option, if any, of the
Company to redeem, purchase or repay Securities of the series pursuant
to any sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which, the price or
prices at which and the terms and conditions upon which Securities of
the series
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shall be redeemed, purchased or repaid, in whole or in part, pursuant
to such obligation or option;
(9) if other than denominations of $ 1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) the currency, currencies or currency units in which
payment of the principal of and any premium and interest on any
Securities of the series shall be payable if other than the currency of
the United States of America and the manner of determining the
equivalent thereof in the currency of the United States of America for
purposes of the definition of "Outstanding" in Section 101;
(11) if the amount of payments of principal of or any premium
or interest on any Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(12) If the principal of or any premium or interest on any
Securities of the series is to be payable, at the election of the
Company or a Holder thereof, in one or more currencies or currency
units other than that or those in which the Securities are stated to be
payable, the currency, currencies or currency units in which payment of
the principal of and any premium and interest on Securities of such
series as to which such election is made shall be payable, and the
periods within which and the terms and conditions upon which such
election is to be made;
(13) 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 502 or provable in bankruptcy pursuant to Section
504 or the method by which such portion shall be determined;
(14) any trustees, paying agents, conversion agents, transfer
agents or registrars with respect to Securities of such series;
(15) whether the Securities of the series shall be issued upon
original issuance in whole or in part in the form of one or more Global
Securities and, in such case, (a) the Depository with respect to such
Global Security or Securities, which Depository at the time of
designation and at all times while it serves as Depository shall be a
clearing agency registered under the Securities Exchange Act of 1934,
as amended; and (b) the circumstances under which any such Global
Security may be exchanged for Securities registered in the name of, and
any transfer of such Global Security may be registered to, a Person
other than such Depository or its nominee, if other than as set forth
in Section 305; and
(16) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted
by Section 901(5)).
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All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and set forth, or determined in the
manner provided, in the Officers' Certificate referred to above or in any such
indenture supplemental hereto.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities of each series shall be executed on behalf of the
Company by its Chairman of the Board, a Vice Chairman of the Board, its
President or one of its Vice Presidents, under its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order otherwise required
pursuant to such preceding paragraph at or prior to the time of authentication
of each Security of such series if such documents are delivered at or prior to
the authentication upon original issuance of the first Security of such series
to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially
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in the form provided for herein executed by the Trustee by manual signature, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309, together with a written statement (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
stating that such Security has never been issued and sold by the Company, for
all purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor one or more
definitive Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept a register for each series of
Securities (the registers so maintained being herein sometimes collectively
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers of Securities. The "Security Registrar" for the
purpose of registering Securities and transfers of Securities as herein provided
shall be either the Company or such other Person as the Company may appoint,
including the Trustee.
In no case shall there be more than one Security Register for a series
of Securities. If the Trustee shall at any time not be authorized to keep and
maintain the Security Register with respect to any series of Securities, the
Trustee shall have the right to inspect the Security Register
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for such series of Securities at all reasonable times and to rely conclusively
upon a certificate of the Person in charge of such Security Register as to the
names and addresses of the Holders of the Securities and the principal amounts
and numbers of such Securities so held.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series, of any authorized denominations and of a like tenor and
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like tenor and aggregate principal amount, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any Global Security shall be exchangeable pursuant
to this Section 305 for Securities registered in the names of, and a transfer of
a Global Security of any series may be registered to, any Person other than the
Depository for such Security or its nominee only if (i) such Depository notifies
the Company that it is unwilling or unable to continue as Depository for such
Global Security or if at any time such Depository ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, (ii) the
Company executes and delivers to the
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Trustee a Company Order that such Global Security shall be so exchangeable and
the transfer thereof so registrable or (iii) there shall have occurred and be
continuing an Event of Default or an event which, with the giving of notice or
lapse of time, or both, would constitute an Event of Default with respect to the
Securities of such series. Upon the occurrence in respect of any Global Security
of any series of any one or more of the conditions specified in clauses (i),
(ii) or (iii) of the preceding sentence or such other conditions as may be
specified as contemplated by Section 301 for such series, such Global Security
may be exchanged for Securities registered in the names of, and the transfer of
such Global Security may be registered to, such Persons (including Persons other
than the Depository with respect to such series and its nominees) as such
Depository shall direct. Notwithstanding any other provision of this Indenture,
any Security authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, any Global Security shall also be a Global Security
and bear the legend specified in Section 204 except for any Security
authenticated and delivered in exchange for, or upon registration of transfer
of, a Global Security pursuant to the preceding sentence.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at his address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements
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of any securities exchange on which such Securities may be listed, and
upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to
this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Unless otherwise specified pursuant to Section 301, at the option of
the Company, interest on the Securities of any series that bears interest may be
paid by mailing a check to the address of any Holder as such address shall
appear in the Securities Register.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by a Depository or impair, as between a
Depository and holders of beneficial interests in any Global Security, the
operation of customary practices governing the exercise of the rights of the
Depository (or its nominee) as Holder of such Global Security.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
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SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
ARTICLE FOUR.
SATISFACTION AND DISCHARGE.
SECTION 401. Satisfaction and Discharge of Indenture.
With respect to any series of Securities, if at any time (a) the
Company shall have paid or caused to be paid the principal of and any premium
and interest on all the Securities of such series Outstanding hereunder, as and
when the same shall have become due and payable, or (b) the Company shall have
delivered to the Trustee for cancellation all Securities of such series
theretofore authenticated (other than any Securities of such series which shall
have been apparently destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 306) or (c) the Company and the Trustee
shall have entered into an agreement in form and substance satisfactory to the
Company and the Trustee providing for the creation of an escrow fund and the
Company shall have irrevocably deposited or caused to be so deposited in trust
with the Trustee, as escrow agent of said fund, sufficient funds in cash and/or
Eligible Obligations and/or U.S. Government Obligations, maturing as to
principal and interest in such amounts and at such times, as will be sufficient
without consideration of any reinvestment of such interest, and as further
expressed in the opinion of a nationally recognized firm of independent public
accountants in a written certification thereof delivered to the Trustee at or
prior to the time of such deposit, to pay at the Stated Maturity or Redemption
Date all such Securities of such series not theretofore delivered to the Trustee
for cancellation, including principal and any premium and interest to the Stated
Maturity or Redemption Date, and if the Company shall also pay or cause to be
paid all other sums payable hereunder by the Company then this Indenture shall
cease to be of further effect with respect to the Securities of such series
(except as to (i) rights of registration of transfer and exchange, (ii)
substitution of mutilated, defaced, or apparently destroyed, lost or stolen
Securities of such series, (iii) rights of Holders of Securities of such series
to receive payments of principal thereof (and premium, if any) and interest
thereon and remaining obligations to make mandatory sinking fund payments, (iv)
the rights, remaining obligations, if any, and immunities of the Trustee
hereunder and (v) the rights of the Holders of Securities of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee
payable to all or any of them), and the Trustee, on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture with respect to the Securities of
such series. In the event Eligible Obligations are to be deposited with the
Trustee pursuant to this Section, the Opinion of Counsel to be delivered
hereunder shall state substantially to the effect that neither the Trustee nor
any trust fund deposit created pursuant to this Section will be required to be
registered under the Investment Company Act of 1940, as amended. The Company
agrees to reimburse the Trustee
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for any costs or expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Securities of
such series.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities of such series, the obligations of the Company to the
Trustee under Section 607 and, if funds shall have been deposited with the
Trustee pursuant to subclause (c) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities of the
relevant series and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal and any
premium and interest for whose payment such money has been deposited with the
Trustee, which funds need not be segregated except to the extent required by
law.
ARTICLE FIVE.
REMEDIES.
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) which
shall have occurred and is continuing:
(1) default in the payment of any interest upon any Security
of that series when such interest becomes due and payable or default in
the payment of any mandatory sinking fund payment provided for by the
terms of any series of Securities, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of one or more series
of Securities other than that series), and continuance of such default
or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in principal
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amount of the Outstanding Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(4) without petition, approval or consent of the Company, a
period of 60 days shall have elapsed after
(a) the entry of an order for relief under the Federal
Bankruptcy Act by a court of competent jurisdiction; or
(b) the entry by a court of competent jurisdiction of an order
granting relief under any applicable bankruptcy, insolvency or other
similar law or statute of the United States of America or any State
thereof; or
(c) the appointment by such a court of a trustee, custodian,
receiver or other similar official of the Company or of all or any
substantial part of its property upon the application of any creditor
in any insolvency or bankruptcy proceeding or other creditor's suit;
but such period of 60 days shall not include any period during which
any such decree or order shall be stayed upon appeal or otherwise; or
(5) the filing by the Company of, or consenting or acquiescing
by the Company to a petition seeking an order for relief under the
Federal Bankruptcy Act or the making by it of an assignment for the
benefit of creditors or the consenting by it to, or failure by it to
contest, the appointment of a custodian or receiver of all or any
substantial part of the property of the Company; or the filing by the
Company of a petition or answer seeking, consenting to or acquiescing
in the granting of relief under any other applicable bankruptcy,
insolvency or other similar law or statute of the United States of
America or any State thereof; or
(6) any other Event of Default provided with respect to
Securities of that series.
Subject to the provisions of Section 601, the Trustee shall not be
charged with or be deemed to have knowledge of any default or Event of Default,
except for Events of Default specified in clause (1) or (2) of this Section 501,
until a Responsible Officer has actual notice thereof or until a written notice
of any such event is received by the Trustee at the Corporate Trust Office,
Attention: Vice President, Corporate Trust and such notice refers to the
Securities generally, the Company or the Indenture.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default described in clause (1), (2) or (6) of Section
501 with respect to Securities of any series at the time Outstanding has
occurred, then in every such case, during the continuance of any such Event of
Default, the Trustee or the Holders of not less than 25% in
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principal amount of the Outstanding Securities of that series may declare the
principal amount (or, if the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all of the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or
specified portion thereof) shall become immediately due and payable. If an Event
of Default described in clause (3), (4) or (5) of Section 501 occurs and is
continuing, then in every such case the Trustee or the Holders of not less than
25% in principal amount of all the Securities then Outstanding may declare the
principal amount (or, if any such Securities are Original issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of all of the Securities to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by the Holders), and upon any such declaration such principal amount (or
specified portion thereof) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or of
all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series (or
of all series, as the case may be),
(B) the principal of (and premium, if any, on) any Securities
of that series (or of all series, as the case may be) which has become due
otherwise than by such declaration of acceleration and any interest thereon at
the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is legally
enforceable, interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series (or of all series, as the case may be), other than the
non-payment of the principal of Securities of that series (or of all
series, as the case may be), which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
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SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on
such Securities for principal and any premium and interest and, to the
extent that payment of such interest shall be legally enforceable, interest
on any overdue principal and premium and on any overdue interest, at the
rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series (or of
all series, as the case may be) occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series (or of all series, as the case may be) by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company (or any other obligor upon the Securities),
its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act in order to have claims of the Holders
and the Trustee allowed in any such proceeding. In particular, the Trustee shall
be authorized to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the Securities and
to file such other papers or documents as may be necessary or advisable in order
to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and to
collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses,
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disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and any premium and interest,
respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series in the case of any Event of
Default described in clause (1), (2) or (6) of Section 501, or the
Holders of not less than 25% in principal amount of all
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Outstanding Securities in the case of any Event of Default described in
clause (3), (4) or (5) of Section 501, shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
not less than a majority in principal amount of the Outstanding
Securities of that series in the case of any Event of Default described
in clause (1), (2) or (6) of Section 501, or, in the case of any Event
of Default described in clause (3), (4) or (5) of Section 501, by the
Holders of not less than a majority in principal amount of all
Outstanding Securities;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of
any other Holders of Securities of the same series, in the case of any Event
of Default described in clause (1), (2) or (6) of Section 501, or of Holders
of all Securities in the case of any Event of Default described in clause
(3), (4) or (5) of Section 501, or to obtain or to seek to obtain priority
or preference over any other of such Holders or to enforce any right under
this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all Holders of Securities of the same series, in the case
of any Event of Default described in clause (1), (2) or (6) of Section 501,
or of Holders of all Securities in the case of any Event of Default
described in clause (3), (4) or (5) of Section 501.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
any interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights
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and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
With respect to the Securities of any series, the Holders of not less
than a majority in principal amount of the Outstanding Securities of such series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, relating to or arising under clause (1), (2) or
(6) of Section 501, and, with respect to all Securities, the Holders of not less
than a majority in principal amount of all Outstanding Securities shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, not relating to or arising under clause (1), (2) or (6) of Section
501, provided that in each case
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
Subject to Section 502, the Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series waive any past default
described in clause (1), (2) or (6) of Section 501 (or, in the case of a
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default described in clause (3), (4) or (5) of Section 501, the Holders of not
less than a majority in principal amount of all Outstanding Securities may waive
any such past default), and its consequences, except a default
(1) in respect of the payment of the principal of or any
premium or interest on any Security, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shaft extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust
Indenture Act; provided that neither this Section nor the Trust Indenture Act
shall be deemed to authorize any court to require such an undertaking or to make
such an assessment in any suit instituted by the Company.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and 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 will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX.
THE TRUSTEE.
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
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grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series
and the Trustee knows of such default, the Trustee shall give the Holders of
Securities of such series notice of such default as and to the extent provided
by the Trust Indenture Act; provided, however, that (a) in the case of any
default of the character specified in Section 501(3) with respect to Securities
of such series, no such notice to Holders shall be given until at least 30 days
after the occurrence thereof, and (b) except in the case of a default in the
payment of the principal of or any premium or interest on any Security of such
series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the Board of Directors, the Executive Committee or
Trust Committee of Directors or a Responsible Officer of the Trustee in good
faith determines that the withholding of such notice is in the interest of the
Holders of the Securities of such series. For the purpose of this Section, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to Securities of such
series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed
or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
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(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(h) the Trustee shall have no responsibility to determine
whether any payments with respect to the Securities are in compliance
with any applicable usury laws and subsequent revisions, repeals or
judicial interpretations thereof. Notwithstanding any provisions of
this Indenture or the Securities, the Trustee and any Paying Agent
shall have the right to assume that payments with respect to the
Securities are in compliance with any applicable usury laws unless and
until it shall have received from the Company, in conformity with
Sections 102 and 103 of this Indenture, (1) an Opinion of Counsel to
the effect that, as the result of a final judicial interpretation by a
court of competent jurisdiction, any payments with respect to the
Securities will exceed the maximum amount allowed by applicable law and
that any direction to the Trustee by the Company for action under
Section 113 of this Indenture is in compliance with all applicable
usury laws and the provisions of this Indenture and the Securities and
(2) an Officers' Certificate setting forth the action required to be
taken with respect to the Securities pursuant to Section 113 of this
Indenture, together with any computations or calculations with respect
thereof, and stating that such action is in compliance with the
provisions of this Indenture and the Securities.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the legality, validity or sufficiency of this Indenture or of the Securities.
The Trustee or any Authenticating Agent shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
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SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or of the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would have if it were not the Trustee, Authenticating Agent,
Paying Agent, Security Registrar or such other agent.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee and any
Paying Agent shall be under no liability for interest on any money received by
it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of any express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including, without
limitation, the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or
willful misconduct; and
(3) to indemnify the Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or
willful misconduct on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
SECTION 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
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SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000 and its Corporate Trust
Office in Houston, Texas or New York, New York. If such Person publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been a
bona fide Holder of a Security of the applicable series for at least
six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting with respect
to any series of Securities or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to any one or more of such series of Securities, or
(ii) subject to Section 514, any
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Holder who has been a bona fide Holder of a Security of that series for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee or Trustees with
respect to Securities of that series.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Outstanding Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect, to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series to all
Holders of Securities of such series in the manner provided in Section 106. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all series of Outstanding Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
retiring Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
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(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
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authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
The Trustee may, with notice to the Company, appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon original issue and upon exchange, registration of transfer or
partial redemption thereof or pursuant to Section 306, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent and a certificate
of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and subject to supervision or examination
by Federal or State authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section, such Authenticating
Agent shall resign immediately in the manner and with the effect specified in
this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent; provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at
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any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders of Securities of the series with respect to which such Authenticating
Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
----------------------------------------
As Trustee
By
-------------------------------------
As Authenticating Agent
By
-------------------------------------
As Authorized Officer
ARTICLE SEVEN.
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will, with respect to each series of Securities
Outstanding, furnish or cause to be furnished to the Trustee
(a) semi-annually, on dates mutually acceptable to the Trustee
and the Company, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of such series as of
a date mutually acceptable to the Trustee and the Company, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished (or if any provision of this
Indenture or any Security require the Trustee to interact with Holders
of any
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Security as of a given date, such list to provide the names and
addresses of the Holders as of such date);
excluding from any such list names and addresses received by the Trustee in
its capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Paying Agent.
The Trustee may destroy any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities as to which it is Trustee are listed, with the Commission and with
the Company. The Company will notify the Trustee when any Securities are listed
on any stock exchange.
SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided, however, that
any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
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ARTICLE EIGHT.
CONSOLIDATION, MERGER AND SALE.
SECTION 801. Consolidation, Merger or Sale Permitted Under Certain
Conditions.
Nothing contained in this Indenture or in the Securities shall be
deemed to prevent the consolidation or merger of the Company with or into any
other corporation, or the merger into the Company of any other corporation, or
the sale by the Company of its property and assets as, or substantially as, an
entirety, or otherwise; provided, however, (a) that, in case of any such
consolidation or merger, the corporation resulting from such consolidation or
any corporation other than the Company into which such merger shall be made
shall succeed to and be substituted for the Company with the same effect as if
it had been named herein as the party of the first part hereto and shall become
liable and be bound for, and shall expressly assume, by an indenture
supplemental hereto in form satisfactory to the Trustee executed and delivered
to the Trustee, the due and punctual payment of the principal of (and premium,
if any) and interest on, all the Securities then Outstanding and the performance
and observance of each and every covenant and condition of this Indenture on the
part of the Company to be performed or observed, and (b) that, as a condition of
any such sale of the property and assets of the Company as, or substantially as,
an entirety, the corporation to which such property and assets shall be sold
shall (i) expressly assume, as a part of the purchase price thereof, the due and
punctual payment of the principal of (and premium, if any) and interest on all
the Securities and the performance and observance of all the covenants and
conditions of this Indenture on the part of the Company to be performed or
observed, and (ii) simultaneously with the delivery to it of the conveyances or
instruments of transfer of such property and assets, execute and deliver to the
Trustee an indenture supplemental hereto in form satisfactory to the Trustee,
whereby such purchasing corporation shall so assume the due and punctual payment
of the principal of (and premium, if any) and interest on all the Securities
then outstanding and the performance and observance of each and every covenant
and condition of this Indenture on the part of the Company to be performed or
observed, to the same extent that the Company be bound and liable and provided
further that no such consolidation, merger or sale shall be made if, immediately
after such transaction the corporation (whether the Company or such other
corporation) formed by or surviving any such consolidation or merger, or to
which such sale or conveyance shall have been made, shall be in default in the
performance or observance of any of the terms, covenants and conditions of this
Indenture to be kept or performed by the Company, and (if other than the
Company) shall not be a corporation organized under the laws of the United
States or a State thereof.
SECTION 802. Substitution of Successor Corporation for the Company.
The Company will not consolidate with any other corporation or permit
the Company to be merged into any other corporation, or sell its property and
assets as, or substantially as, an entirety except upon the terms and conditions
set forth in this Article 8. If at any time there be any consolidation, merger,
sale or conveyance of property to which the covenants of this Article 8 are
applicable, then in any such event the successor corporation will promptly
deliver to the
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Trustee: (i) an Officers' Certificate stating that as of the time immediately
after the effective date of any such transaction the covenants of the Company
contained in this Article 8 have been complied with and the successor
corporation is not in default under the provisions of this Indenture; and (ii)
an Opinion of Counsel stating that in his opinion such covenants have been
complied with and that any instrument or instruments executed in the performance
of such covenants comply with the requirements thereof. Upon any consolidation
or merger, or any sale of the property and assets of the Company as, or
substantially as, an entirety in accordance with the provisions of this Article
8, the corporation formed by such consolidation or into which the Company shall
have been merged or to which such sale shall have been made shall succeed to and
be substituted for the Company with the same effect as if it had been named
herein as a party hereto, and thereafter from time to time such corporation may
exercise each and every right and power of the Company under this Indenture, in
the name of the Company or in its own name; and any act or proceeding by any
provision of this Indenture required or permitted to be done by any board or
officer of the Company may be done with like force and effect by the like board
or officer of any corporation that shall at the time be the successor of the
Company hereunder; and in the event of any such conveyance or transfer, the
Company (which term shall for this purpose mean the person named as the
"Company" in the first paragraph of this Indenture or any prior successor
corporation which shall theretofore have become such in the manner described in
Section 801) shall be discharged from all obligations and covenants under the
Indenture and the Securities and may be dissolved and liquidated.
SECTION 803. Opinion of Counsel and Officers' Certificate to be given
to Trustee.
The Trustee shall be entitled to receive an Opinion of Counsel and
Officers' Certificate as conclusive evidence that any such consolidation,
merger, sale or conveyance and any assumption permitted or required by the terms
of this Article 8 comply with the provisions of this Article 8.
ARTICLE NINE.
SUPPLEMENTAL INDENTURES.
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for
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the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default with respect to
all or any series of Securities (and if such Events of Default are to
be for the benefit of less than all series of Securities, stating that
such Events of Default are being included solely for the benefit of
such series); or
(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or
to permit or facilitate the issuance of Securities in uncertificated
form; or
(5) to add to, change or eliminate any of the provisions of
this Indenture in respect of one or more series of Securities, provided
that any such addition, change or elimination (i) shall neither (A)
apply to any Security of any series created prior to the execution of
such supplemental indenture entitled to the benefit of such provision
nor (B) modify the rights of the Holder of any such Security with
respect to such provision or (ii) shall become effective with respect
to any such series only when there is no Security of such series
Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause (9) shall not adversely affect the interests of
the Holders of Securities of any series in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of more than 50% in principal amount of
all Outstanding Securities affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of modifying in any manner the right of the Holders of Securities under this
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Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the amount thereof provable in bankruptcy
pursuant to Section 504, or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1009, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this Section
and Section 1009, or the deletion of this proviso, in accordance with
the requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter
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into any such supplemental indenture which affects the Trustee's own rights,
duties, immunities or liabilities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for outstanding Securities of such series.
ARTICLE TEN.
COVENANTS.
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay or cause to be paid the
principal of and any premium and interest on the Securities of that series in
accordance with the terms of the Securities and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where, if applicable, the Securities
of that series may be presented for conversion and where notices and demands to
or upon the Company in respect of the Securities of that series and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
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Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee and the
Holders of such series of any such designation or rescission and of any change
in the location of any such other office or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay the principal and any premium and interest so
becoming due, such sum to be held as provided by the Trust Indenture Act, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will (i) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment in respect of the
Securities of that series, and upon the written request of the Trustee,
forthwith pay to the Trustee all sums held in trust by such Paying Agent for
payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
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Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the judgment of the Company, desirable in the conduct of its business or the
business of any Subsidiary and not disadvantageous in any material respect to
the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the income,
profits or property of the Company or any Subsidiary; provided, however, that
the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment or charge whose amount, applicability or
validity is being contested in good faith by appropriate proceedings.
SECTION 1007. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture, and, if the Company
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shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
SECTION 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1002, and 1004 to 1006,
inclusive, if before the time for such compliance the Holders of more than 50%
in principal amount of the Outstanding Securities shall, by Act of such Holders,
waive such compliance in such instance with such term, provision or condition.
In the event that there shall be included in this Indenture any covenant, other
than a covenant to pay principal, premium (if any) and interest, solely for the
benefit of one or more, but less than all, series of Securities, then, unless
otherwise expressly provided with respect to such covenant, the Company may
similarly omit in any particular instance to comply with any term, provision or
condition of such covenant if before the time for such compliance the holders of
more than 50% in principal amount of all Outstanding Securities entitled to the
benefit of such covenant, by Act of such Holders, waive such compliance in such
instance with such term, provision, or condition. No such waiver contemplated by
this Section 1008 shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
ARTICLE ELEVEN.
REDEMPTION OF SECURITIES.
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the Company
of less than all the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of any
redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this
Indenture, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction.
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SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by lot or by
such other method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions (equal to the minimum
authorized denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series.
If less than all of the Securities of such series and of a specified tenor are
to be redeemed, the particular Securities to be redeemed shall be selected not
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series and specified tenor not previously called
for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular
Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
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(6) that the redemption is for a sinking fund, if such is the
case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company, in which event the
Company shall provide the Trustee with the information required by clauses (1)
through (6) above.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date. The Paying Agent shall provide notice to
the Trustee of such deposit.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered. If a Global Security is so surrendered, such new
Security so issued shall be a new Global Security.
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ARTICLE TWELVE.
SINKING FUNDS.
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver to the Trustee Outstanding Securities of a
series (other than any previously called for redemption) theretofore purchased
or otherwise acquired by the Company and (2) may receive credit for Securities
of a series which have been previously delivered to the Trustee by the Company
or for Securities of a series which have been redeemed either at the election of
the Company pursuant to the terms of such Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any mandatory
sinking fund payment with respect to the Securities of such series required to
be made pursuant to the terms of such Securities as provided for by the terms of
such series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 (which Securities will, if not previously delivered,
accompany such certificate) and whether the Company intends to exercise its
right to make a permitted optional sinking fund payment with respect to such
series, and will deliver to the Trustee any Securities to be so delivered. Not
less than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 1103 and cause notice of the redemption thereof to
be given in the name of and at the expense of the
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Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN.
IMMUNITY OF INCORPORATORS, STOCKHOLDERS,
OFFICERS AND DIRECTORS.
SECTION 1301. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of (or
premium, if any) or interest on any Securities or any part thereof, or for any
claim based thereon or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or agreement of this
Indenture, against any incorporator, or against any stockholder, officer or
director, as such, past, present or future, of the Company, or of any
predecessor or successor corporation, either directly or through the Company or
any such predecessor or successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, it being expressly agreed and understood that this
Indenture and all the Securities are solely corporate obligations, and that no
personal liability whatsoever shall attach to, or be insured by, any such
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company or of any predecessor or successor corporation, either
directly or through the Company or any such predecessor or successor
corporation, because of the indebtedness hereby authorized or under or by reason
of any of the obligations, covenants, promises or agreements contained in this
Indenture or in any of the Securities or to be implicit herefrom or therefrom;
and that any such personal liability is hereby expressly waived and released as
a condition of, and as part of the consideration for, the execution of this
Indenture and the issue of the Securities; provided, however, that nothing
herein or in the Securities contained shall be taken to prevent recourse to and
the enforcement of the liability, if any, of any stockholder or subscriber to
capital stock of the Company upon or in respect of shares of capital stock not
fully paid up.
ARTICLE FOURTEEN.
CONVERSION.
SECTION 1401. Applicability of Article.
The provisions of this Article shall be applicable to the Securities of
any series which are convertible into Common Stock or, if so provided in a Board
Resolution, Officer's Certificate or executed supplemental indenture referred to
in Section 301 by or pursuant to which the form and terms of the Securities of
such series were established, cash in lieu thereof, as and to the extent
provided by the terms of the Securities of such series.
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SECTION 1402. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security to the Conversion Agent
at any time during usual business hours at its office or agency maintained for
the purpose as provided in this Indenture, accompanied by a fully executed
written notice, in substantially the form set forth on the reverse of the
Security, that the Holder elects to convert such Security or a stated portion
thereof constituting a multiple of $1,000 in principal amount, and, if such
Security is surrendered for conversion during the period between the close of
business on any record date for such Security and the opening of business on the
related interest payment date and has not been called for redemption on a
redemption date within such period (or on such interest payment date),
accompanied also by payment of an amount equal to the interest payable on such
interest date on the portion of the principal amount of the Security being
surrendered for conversion. Such notice shall also state the name or names (and
address) in which the certificate or certificates for shares of Common Stock
shall be issued (or to whom payment in cash in lieu of Common Stock shall be
made). Securities surrendered for conversion shall (if so required by the
Company or the Conversion Agent) be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the Issuer
and the Conversion Agent duly executed by, the Holder or his attorney duly
authorized in writing. As promptly as practicable after the receipt of such
notice and the surrender of such Security as aforesaid, the Company shall,
subject to the provisions of Section 1407, issue and deliver at such office or
agency to such Holder, or on his written order, a certificate or certificates
for the number of full shares of Common Stock issuable on conversion of such
Security in accordance with the provisions of such Security and cash, as
provided in Section 1403, in respect of any fraction of a share of Common Stock
otherwise issuable upon such conversion or, if so provided in a Board
Resolution, Officer's Certificate or executed supplemental indenture referred to
in Section 301 by or pursuant to which the form and terms of the Securities of
such series were established, cash in lieu of shares of Common Stock. Such
conversion shall be at the Conversion Price in effect, and shall be deemed to
have been effected, immediately prior to the close of business on the date
(herein called the "Date of Conversion") on which such notice in proper form
shall have been received by the Conversion Agent and such Security shall have
been surrendered as aforesaid, and the Person or Persons in whose name or names
any certificate or certificates for shares of Common Stock shall be issuable, if
any, upon such conversion shall be deemed to have become on the Date of
Conversion the holder or holders of record of the shares represented thereby;
provided, however, that any such surrender on any date when the stock transfer
books of the Company shall be closed shall constitute the Person or Persons in
whose name or names the certificate or certificates for such shares are to be
issued, if any, as the record holder or holders thereof for all purposes at the
opening of business on the next succeeding day on which such stock transfer
books are open but such conversion shall nevertheless be at the Conversion price
in effect at the close of business on the date when such Security shall have
been so surrendered with the conversion notice in proper form. In the case of
conversion of a portion, but less than all, of a Security, the Company shall
execute, and the trustee shall authenticate and deliver to the Holder thereof,
at the expense of the Company, a Security or Securities in the aggregate
principal amount of the unconverted portion of the Security surrendered. Except
as otherwise expressly provided in this Indenture, no payment or adjustment
shall be made for interest accrued on any
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Security (or portion thereof) converted or for dividends or distributions on any
Common Stock issued upon conversion of any Security. The right, if any, of a
Holder of any Security to cause the Company to redeem, purchase or repay such
Security shall terminate upon receipt by the Company of any notice of conversion
of such Security.
SECTION 1403. Fractional Interests.
No fractions of shares or scrip representing fractions of shares shall
be issued upon conversion of Securities. If more than one Security shall be
surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities so surrendered. If any
fraction of a share of Common Stock would, except for the provisions of this
Section 1403, be issuable on the conversion of any of any Security or
Securities, the Company shall make payment in lieu thereof in cash equal to the
value of such fraction computed on the basis of the Last Sale Price of one share
of Common Stock on the most recent Trading Day prior to the Date of Conversion.
"Last Sale Price" on any Trading Day shall mean (i) the closing price regular
way (or, if no closing price is reported the average of the bid and asked
prices) as reported on the New York Stock Exchange Composite Tape, or (ii) if on
such Trading Day the Common Stock is not listed or admitted to trading on such
exchange, the closing price regular way (or, if no closing price is reported the
average of the bid and asked prices) on the principal national securities
exchange on which the Common Stock is listed or admitted to trading, or (iii) if
not listed or admitted to trading on any national securities exchange on such
Trading Day, then the average of the closing bid and asked prices as reported
through the National Association of Securities Dealers, Inc. on its NASDAQ
National Market System or NASDAQ System or a similar organization if NASDAQ is
no longer reporting information, or (iv) if the Common Stock is not listed or
admitted to trading on any national securities exchange or quoted on such
National Market System or NASDAQ System on such Trading Day, then the average of
the closing bid and asked prices in the over-the-counter market as furnished by
any New York Stock Exchange member firm selected from time to time by the
Company for that purpose or (v) if not quoted by any such organization on such
Trading Day, the fair value of such Common Stock on such Trading Day, as
determined by the Board of Directors. The term "Trading Day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday, other than any day on which
securities are not traded on any of the above mentioned exchanges or in such
markets.
SECTION 1404. Adjustment of Conversion Price.
The conversion price or rate (herein called the "Conversion Price") for
a series of Securities shall be as set forth in a Board Resolution, Officer's
Certificate or executed supplemental indenture referred to in Section 301 by or
pursuant to which the form and terms of the Securities of such series were
established, and, except as otherwise provided therein, shall be subject to
adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend or make a
distribution in shares of Common Stock on the Common Stock, (2)
subdivide its outstanding shares of Common Stock into a greater number
of shares, (3) combine its outstanding shares of
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Common Stock into a smaller number of shares, (4) issue by
reclassification of its Common Stock any shares of capital stock of the
Company or (5) redeem any Associated rights, the conversion Price in
effect immediately prior to such action shall be adjusted so that the
Holder of any Security thereafter surrendered for conversion shall be
entitled to receive the number of shares of Common Stock or other
capital stock of the Company which he would have owned immediately
following such action had such Security been converted immediately
prior thereto. An adjustment made pursuant to this subsection (a) shall
become effective immediately, except as provided in subsection (e)
below, after the record date in the case of a dividend or distribution
and shall become effective immediately after the effective date in the
case of a subdivision, combination or reclassification. If as a result
of an adjustment made pursuant to this subsection (a), the Holder of
any Security thereafter surrendered for conversion shall become
entitled to receive shares of two or more classes of capital stock
(including shares of Common Stock and other capital stock) of the
Company, the Board of Directors (whose determination shall be
conclusive and shall be described in a statement filed with the
Trustee) shall determine the allocation of the adjusted Conversion
Price between or among shares of such classes of capital stock or
shares of Common Stock and other capital stock.
(b) In case the Company shall issue rights or warrants to all
holders of Common Stock entitling them to subscribe for or purchase
shares of Common Stock at a price per share less than the current
market price per share (as determined pursuant to subsection (d) below)
of the Common Stock on the record date mentioned below, the Conversion
Price shall be adjusted to a price, computed to the nearest cent, so
that the same shall equal the price determined by multiplying:
(1) the Conversion Price in effect immediately prior
to the date of issuance of such rights or warrants by a
fraction, of which
(2) the numerator shall be (A) the number of shares
of Common Stock outstanding on the date of issuance of such
rights or warrants, immediately prior to such issuance, plus
(B) the number of shares which the aggregate offering price of
the total number of shares so offered for subscription or
purchase would purchase at such current market price
(determined by multiplying such total number of shares by the
exercise price of such rights or warrants and dividing the
product so obtained by such current market price), and of
which
(3) the denominator shall be (A) the number of shares
of Common Stock outstanding on the date of issuance of such
rights or warrants, immediately prior to such issuance, plus
(B) the number of additional shares of Common Stock which are
so offered for subscription or purchase.
Such adjustment shall become effective immediately, except as provided
in subsection (e) below, after the record date for the determination of
holders entitled to receive such rights or warrants.
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(c) In case the Company shall distribute to substantially all
holders of Common Stock, evidences of indebtedness, equity securities
(including equity interests in the Company's Subsidiaries) other than
Common Stock, or other assets (other than cash dividends paid out of
surplus of the Company), or shall distribute to substantially all
holders of Common Stock rights or warrants to subscribe for securities
(other than those referred to in subsection (b) above) then in each
such case the Conversion Price shall be adjusted so that the same shall
equal the price determined by multiplying the Conversion Price in
effect immediately prior to the date of such distribution by a fraction
of which the numerator shall be the current market price per share
(determined as provided in subsection (d) below) of the Common Stock on
the record date mentioned below less the then fair market value (as
determined by the Board of Directors, whose determination shall, if
made in good faith, be conclusive evidence of such fair market value)
of the portion of the assets so determined or of such subscription
rights or warrants applicable to one share of Common Stock, and of
which the denominator shall be such current market price per share of
the Common Stock. Such adjustment shall become effective immediately,
except as provided in subsection (e) below, after the record date for
the determination of stockholders entitled to receive such
distribution.
(d) For the purpose of any computation under subsections (b)
and (c) above, the current market price per share of Common Stock on
any date shall be deemed to be the average of the Last Sale Prices for
the 30 consecutive Trading Days commencing 45 Trading Days before the
date in question.
(e) In any case in which this Section 1404 shall require that
an adjustment be made immediately following a record date, the Company
may elect to defer the effectiveness of such adjustment (but in no
event until a date later than the effective time of the event giving
rise to such adjustment), in which case the Company shall, with respect
to any Security converted after such record date and before such
adjustment shall have become effective, (i) defer paying any cash
payment pursuant to Section 1403 or issuing to the Holder of such
Security the number of shares of Common Stock and other capital stock
of the Company issuable upon such conversion in excess of the number of
shares of Common Stock and other capital stock of the Company issuable
thereupon only on the basis of the Conversion Price prior to adjustment
and (ii) not later than five Business Days after such adjustment shall
have become effective, pay to such Holder the appropriate cash payment
pursuant to Section 1403 and issue to such Holder the additional shares
of Common Stock and other capital stock of the Company issuable on such
conversion.
(f) No adjustment in the conversion Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% of the Conversion Price; provided, that any adjustments which
by reason of this subsection (f) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment
and, provided further, that adjustment shall be required and made in
accordance with the provisions of this Article Fourteen (other than
this subsection (f) not later than such time as may be required in
order to preserve the tax-free nature of a distribution to the holders
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of Securities or Common Stock. All calculations under this Article
Fourteen shall be made to the nearest cent or to the nearest
one-hundredth of a share, as the case may be.
(g) Whenever the Conversion Price is adjusted as herein
provided, the Company shall promptly (i) file with the Trustee and each
Conversion Agent an Officer's Certificate setting forth the Conversion
Price after such adjustment and setting forth a brief statement of the
facts requiring such adjustment, which certificate shall be conclusive
evidence of the correctness of such adjustment, and (ii) mail or cause
to be mailed a notice of such adjustment to each Holder of Securities
in the manner provided in Section 106.
Anything in this Section 1404 to the contrary notwithstanding, the Company
shall be entitled to make such reductions in the Conversion Price, in
addition to those required by this Section 1404, as it in its discretion
shall determine to be advisable in order that any stock dividend,
subdivision of shares, distribution of rights or warrants to purchase stock
or securities, or distribution of other assets (other than cash dividends)
hereafter made by the Company to its stockholders shall not be taxable.
SECTION 1405. Continuation of Conversion Privilege in Case of Merger,
Consolidation or Sale of Assets.
If any of the following shall occur, namely: (a) any consolidation or
merger of the Company as a result of which the holders of Common Stock shall be
entitled to receive stock, other securities or other assets (including cash)
with respect to or in exchange for Common Stock; or (b) sale, lease, exchange or
other disposition of all or substantially all of the property and assets of the
Company as an entirety, then the Company, or such successor or purchasing
corporation, as the case may be, shall, as a condition precedent to such
consolidation, merger, sale, lease, exchange or other disposition, execute and
deliver to the Trustee a supplemental indenture (which shall conform to the
Trust Indenture Act of 1939 as in force at the date of the execution thereof)
providing that the Holder of each convertible Security then Outstanding shall
have the right to convert such Security into the kind and amount of shares of
stock and other securities and property (including cash) receivable upon or in
connection with such consolidation, merger, sale, lease, exchange or other
disposition by a holder of the number of shares of Common Stock issuable upon
conversion of such Security immediately prior to such consolidation, merger,
sale, lease, exchange or other disposition. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article Fourteen. If, in the
case of any such consolidation, merger, sale, lease, exchange or other
disposition, the stock or other securities and property (including cash)
receivable thereupon or in connection therewith by a holder of shares of Common
Stock includes shares of stock or other securities and property (including cash)
of a corporation other than the successor or purchasing corporation, as the case
may be, in such consolidation, merger, sale, lease, exchange or other
disposition, then such supplemental indenture shall also be executed by such
other corporation and shall contain such additional provisions to protect the
interests of the Holders of the Securities as the Board of Directors shall
reasonably consider necessary by reason of the foregoing. The provisions of this
Section 1405
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shall similarly apply to successive consolidations, mergers, sales, leases,
exchanges or other dispositions.
Notice of the execution of each such supplemental indenture shall be
mailed to each Holder of Securities in the manner provided in Section 106.
Neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or property (including cash) receivable by Holders of
Securities upon the conversion of their Securities after any such consolidation,
merger, sale, lease, exchange or other disposition or to any adjustment to be
made with respect thereto, but, subject to the provisions of Sections 601 and
603, may accept as conclusive evidence of the correctness of any such
provisions, and shall be protected in relying upon, the Officer's Certificate
(which the Company shall be obligated to file with the Trustee prior to the
execution of any such supplemental indenture) with respect thereto.
Section 1406. Notice of Certain Events.
If:
(a) the Company shall declare a dividend (or any other
distribution) payable to the holders of Common Stock otherwise than in
cash; or
(b) the Company shall authorize the granting to all holders of
Common Stock of rights to subscribe for or purchase any shares of stock
of any class or of any other rights; or
(c) the Company shall authorize any reclassification or change
of the Common Stock (other than a subdivision or combination of its
outstanding shares of Common Stock), or any consolidation or merger to
which the Company is a party and for which approval of any stockholders
of the Company is required, or the sale, lease, exchange or other
disposition of all or substantially all the property and assets of the
Company; or
(d) there shall be authorized or ordered any voluntary or
involuntary dissolution, liquidation or winding-up of the Company;
then, the Company shall cause to be filed at the office or agency maintained
for the purpose of conversion of the Securities as provided in Section 1002,
and shall cause to be mailed to each Holder of Securities, in the manner
provided in Section 106, at least 20 days before the date hereinafter
specified (or the earlier of the dates hereinafter specified, in the event
that more than one date is specified), a notice stating the date on which
(1) a record is expected to be taken for the purpose of such dividend,
distribution or rights, or if a record is not to be taken, the date as of
which the holders of Common Stock of record to be entitled to such dividend,
distribution or rights are to be determined, or (2) such reclassification,
change, consolidation, merger, sale, lease, exchange or other disposition,
dissolution, liquidation or winding-up is
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expected to become effective and the date, if any is to be fixed, as of
which it is expected that holders of Common Stock of record shall be
entitled to exchange their shares of Common Stock for securities or other
property deliverable upon such reclassification, change, consolidate,
merger, sale, lease, exchange or other disposition, dissolution,
liquidation or winding-up.
SECTION 1407. Taxes on Conversion.
The Company will pay any and all documentary, stamp or similar taxes
payable to the United States of America or any political subdivision or taxing
authority thereof or therein in respect of the issue or delivery of shares of
Common Stock on conversion of Securities pursuant thereto; provided, however,
that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issue or delivery of shares of Common
Stock in an name other than that of the Holder of the Securities to be converted
(or payment of cash in lieu thereof to a Person other than such Holder) and no
such issue or delivery (or payment) shall be made unless and until the Person
requesting such issue or delivery (or payment) has paid to the Company the
amount of any such tax or has established, to the satisfaction of the Company,
that such tax has been paid. The Company extends no protection with respect to
any other taxes imposed in connection with conversion of Securities.
SECTION 1408. Company to Provide Stock.
The Company shall reserve, free from preemptive rights, out of its
authorized but unissued shares, sufficient shares to provide for the conversion
of convertible Securities from time to time as such Securities are presented for
conversion, provided, however, that nothing contained herein shall be construed
to preclude the Company from satisfying its obligations in respect of the
conversion of Securities by delivery of repurchased shares of Common Stock which
are held in the treasury of the Company.
If any shares of Common Stock to be reserved for the purpose of
conversion of Securities hereunder require registration with or approval of any
governmental authority under any federal or state law before such shares may be
validly issued or delivered upon conversion, then the Company covenants that it
will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be; provided, however, that nothing in
this Section 1408 shall be deemed to affect in any way the obligations of the
Company to convert Securities into Common Stock as provided in this Article
Fourteen.
Before taking any action which would cause an adjustment reducing the
Conversion Price below the then par value, if any, of the Common Stock, the
Company will take all corporate action which may, in the opinion of counsel, be
necessary in order that the Company may validly and legally issue fully paid and
non-assessable shares of Common Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be fully paid and
non-assessable by the Company and free of preemptive rights.
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SECTION 1409. Disclaimer of Responsibility for Certain Matters.
Neither the Trustee, any Conversion Agent nor any agent of either shall
at any time be under any duty or responsibility to any Holder of Securities to
determine whether any facts exist which may require any adjustment of the
Conversion Price, or with respect to the Officer's Certificate referred to in
Section 1404(g), or with respect to the nature or extent of any such adjustment
when made, or with respect to the method employed, or herein or in any
supplemental indenture provided to be employed, in making the same. Neither the
Trustee, any Conversion Agent nor any agent of either shall be accountable with
respect to the validity or value (or the kind or amount) of any shares of Common
Stock, or of any securities or property (including cash), which may at any time
be issued or delivered upon the conversion of any Security; and neither the
Trustee, any Conversion Agent nor any agent of either makes any representation
with respect thereto. Neither the Trustee, any Conversion Agent nor any agent of
either shall be responsible for any failure of the Company to issue, register
the transfer of or deliver any shares of Common Stock or stock certificates or
other securities or property (including cash) upon the surrender of any Security
for the purpose of conversion or, subject to Sections 601 and 603, to comply
with any of the covenants of the Company contained in this Article Fourteen.
SECTION 1410. Return of Funds Deposited for Redemption of Converted
Securities.
Any funds which at any time shall have been deposited by the Company or
on its behalf with the Trustee or any Paying Agent for the purpose of paying the
principal of and interest, if any, on any of the Securities and which shall not
be required for such purposes because of the conversion of such Securities, as
provided in this Indenture, shall forthwith after such conversion be repaid to
the Company by the Trustee or such Paying Agent.
ARTICLE FIFTEEN.
SUBORDINATION.
SECTION 1501. Securities Subordinated to Senior Indebtedness.
The Company covenants and agrees that anything in this Indenture or the
Securities of any series to the contrary notwithstanding, the indebtedness
evidenced by the Securities of each series is subordinate and junior in right of
payment to all Senior Indebtedness to the extent provided herein, and each
Holder of Securities of each series, by his acceptance thereof, likewise
covenants and agrees to the subordination herein provided and shall be bound by
the provisions hereof.
Subject to Section 1504, if the Company shall default in the payment of
any principal of or interest on any Senior Indebtedness when the same becomes
due and payable, whether at maturity or at a date fixed for prepayment or by
declaration of acceleration or otherwise, then, upon written notice of such
default to the Company by the holders of such Senior Indebtedness or any trustee
therefor, unless and until such default shall have been cured or waived or shall
have ceased to exist, no direct or indirect payment (in cash, property,
securities, by set-off or
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otherwise) shall be made or agreed to be made on account of the principal of or
interest on any of the Securities, or in respect of any redemption, retirement,
purchase or other acquisition of any of the Securities other than those made in
capital stock of the Company (or cash in lieu of fractional shares thereof)
pursuant to Article Fourteen or otherwise made in capital stock of the Company
(or cash in lieu of fractional shares thereof).
If (a) without the consent of the Company a court having jurisdiction
shall enter an order for relief with respect to the Company under the Bankruptcy
Code or without the consent of the Company a court having jurisdiction shall
enter a judgment, order or decree adjudging the Company as bankrupt or
insolvent, or enter an order for relief for reorganization, arrangement,
adjustment or composition of or in respect of the Company under the Bankruptcy
Code or applicable state insolvency law, or (b) the Company shall institute
proceedings for entry of an order for relief with respect to the Company under
the Bankruptcy Code or for an adjudication of insolvency, or shall consent to
the institution of bankruptcy or insolvency proceedings against it, or shall
file a petition seeking, or seek or consent to reorganization, arrangement,
composition or relief under the Bankruptcy Code or any applicable state law, or
shall consent to the filing of such petition or to the appointment of a
receiver, custodian, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of substantially all of its property, or the Company
shall make a general assignment for the benefit of creditors as recognized under
the Bankruptcy Code, then all Senior Indebtedness (including any interest
thereon accruing after the commencement of any such proceedings) shall first be
paid in full before any payment or distribution, whether in cash, securities or
other property, shall be made to any Holder of any Securities on account
thereof. Any payment or distribution, whether in cash, securities or other
property (other than securities of the Company or any other corporation provided
for by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in these subordination provisions
with respect to the indebtedness evidenced by the Securities, to the payment of
all Senior Indebtedness then outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), which would
otherwise (but for these subordination provisions) be payable or deliverable in
respect of the Securities of any series shall be paid or delivered directly to
the holders of Senior Indebtedness in accordance with the priorities then
existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) shall
have been paid in full. In the event of any such proceeding, after payment in
full of all sums owing with respect to Senior Indebtedness, the Holders of the
Securities, together with the holders of any obligations of the Company ranking
on a parity with the Securities, shall be entitled to be paid from the remaining
assets of the Company the amounts at the time due and owing on account of unpaid
principal of and interest, if any, on the Securities and such other obligations
before any payment or other distribution, whether in cash, property or
otherwise, shall be made on account of any capital stock or any obligations of
the Company ranking junior to the Securities and such other obligations.
If, notwithstanding the foregoing, any payment or distribution of any
character, whether in cash, securities or other property (other than securities
of the Company or any other corporation provided for by a plan of reorganization
or readjustment the payment of which is subordinate, at least to the extent
provided in these subordination provisions with respect to the
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indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness then outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment), shall be received by the
Trustee or any Holder in contravention of any of the terms hereof, such payment
or distribution shall be received in trust for the benefit of, and shall be paid
over or delivered and transferred to, the holders of the Senior Indebtedness
then outstanding in accordance with the priorities then existing among such
holders for application to the payment of all Senior Indebtedness remaining
unpaid, to the extent necessary to pay all such Senior Indebtedness in full. In
the event of the failure of the Trustee or any Holder to endorse or assign any
such payment, distribution or security, each holder of Senior Indebtedness is
hereby irrevocably authorized to endorse or assign the same.
No present or future holder of any Senior Indebtedness shall be
prejudiced in the right to enforce subordination of the indebtedness evidenced
by the Securities by any act or failure to act on the part of the Company.
Nothing contained herein shall impair, as between the Company and the Holders of
the Securities of each series, the obligation of the Company to pay to such
Holders the principal of and interest, if any, on such Securities or prevent the
Trustee or the Holder from exercising all rights, powers and remedies otherwise
permitted by applicable law or hereunder upon a default or Event of Default
hereunder, all subject to the rights of the holders of the Senior Indebtedness
to receive cash, securities or other property otherwise payable or deliverable
to the Holders.
Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Indebtedness then outstanding. Upon
the payment in full of all Senior Indebtedness, the Holders of Securities of
each series shall be subrogated to all rights of any holders of Senior
Indebtedness to receive any further payments or distributions applicable to the
Senior Indebtedness until the indebtedness evidenced by the Securities of such
series shall have been paid in full, and such payments or distributions received
by such Holders, by reason of such subrogation, of cash, securities or other
property which otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between the Company and its creditors other than the
holders of Senior Indebtedness, on the one hand, and such Holders, on the other
hand, be deemed to be a payment by the Issuer on account of Senior Indebtedness,
and not on account of the Securities of such series.
The provisions of this Section 1501 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Company in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
The securing of any obligations of the Company, otherwise ranking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
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SECTION 1502. Reliance on Certificate of Liquidating Agent; Further
Evidence as to Ownership of Senior Indebtedness.
Upon any payment or distribution of assets of the Company, the Trustee
and the Holders shall be entitled to rely upon an order or decree issued by any
court of competent jurisdiction in which such dissolution or winding up or
liquidation or reorganization or arrangement proceedings are pending or upon a
certificate of the trustee in bankruptcy, receiver, assignee for the benefit of
creditors or other Person making such payment or distribution, delivered to the
Trustee or to the Holders, for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of the Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Fifteen. In the absence of any such bankruptcy
trustee, receiver, assignee or other Person, the Trustee shall be entitled to
rely upon a written notice by a Person representing himself to be a holder of
Senior Indebtedness (or a trustee or representative on behalf of such holder) as
evidence that such Person is a holder of Senior Indebtedness (or is such a
trustee or representative). If the Trustee determines, in good faith, that
further evidence is required with respect to the right of any Person as a holder
of Senior Indebtedness to participate in any payment or distributions pursuant
to this Article Fifteen, the Trustee may request such person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, as to the extent to which such Person is
entitled to participate in such payment or distribution, and as to other facts
pertinent to the rights of such Person under this Article Fifteen, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 1503. Payment Permitted If No Default.
Nothing contained in this Article Fifteen or elsewhere in this
Indenture, or in any of the Securities, shall prevent (a) the Company at any
time, except during the pendency of any default in the payment of any principal
of or interest on any Senior Indebtedness as described in Section 1501 or of any
of the events described in clauses (a) and (b) of Section 1501, from making
payments of the principal of or interest, if any, on the Securities, or (b) the
application by the Trustee or any Paying Agent of any moneys deposited with it
hereunder to payments of the principal of or interest, if any, on the
Securities, unless and until the Trustee or such Paying Agent, as the case may
be, shall have timely received the Officer's Certificate or written notice
provided for in Section 1505.
SECTION 1504. Disputes with Holders of Certain Senior Indebtedness.
Any failure by the Company to make any payment on or under any Senior
Indebtedness, other than any Senior Indebtedness as to which the provisions of
this Section 1504 shall have been waived by the Company in the instrument or
instruments by which the Company incurred, assumed, guaranteed or otherwise
created such Senior Indebtedness, shall not be deemed a default under Section
1501 if (i) the Company shall be disputing its obligation to make such payment
or perform such obligation, and (ii) either (A) no final judgment relating to
such dispute
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shall have been issued against the Company which is in full force and effect and
is not subject to further review, including a judgment that has become final by
reason of the expiration of the time within which a party may seek further
appeal or review, or (B) in the event of a judgment that is subject to further
review or appeal has been issued, the Company shall in good faith be prosecuting
an appeal or other proceeding for review, and a stay of execution shall have
been obtained pending such appeal or review.
SECTION 1505. Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article Fifteen or elsewhere in this indenture
contained to the contrary notwithstanding, the Trustee shall not at any time be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment of moneys to or by the Trustee and shall be entitled to
assume conclusively that no such facts exist and that no event specified in
clauses (a) and (b) of Section 1501 has happened, unless and until the Trustee
shall have received an Officer's Certificate to that effect or notice in writing
to that effect signed by or on behalf of the holder or holders, or their
representatives, of Senior Indebtedness who shall have been certified by the
Company or otherwise established to the reasonable satisfaction of the Trustee
to be such holder or holders or representatives or from any trustee under any
indenture pursuant to which such Senior Indebtedness shall be outstanding;
provided, however, that, if the Trustee shall not have received the Officer's
Certificate or notice provided for in this Section 1505 at least three Business
Days preceding the date upon which by the terms hereof any such moneys may
become payable for any purpose (including, without limitation, the payment of
either the principal of or interest, if any, on any Security), then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such moneys and apply the same to the purpose for
which they were received and shall not be affected by any notice to the contrary
which may be received by it within three Business Days preceding such date. The
Company shall give prompt written notice to the Trustee and to each Paying Agent
of any facts which would prohibit any payment of moneys to or by the Trustee or
any Paying Agent, and the Trustee shall not be charged with knowledge of the
curing of any default or the elimination of any other fact or condition
preventing such payment or distribution unless and until the trustee shall have
received an Officer's Certificate to such effect.
SECTION 1506. Trustee to Effectuate Subordination.
Each Holder of Securities by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination as between such Holder and holders
of Senior Indebtedness as provided in this Article Fifteen and points the
Trustee its attorney-in-fact for any and all such purposes.
SECTION 1507. Rights of Trustee as Holder of Senior Indebtedness.
The Trustee shall be entitled to all the rights set forth in this
Article Fifteen with respect to any Senior Indebtedness which may at the time be
held by it, to the same extent as any other holder of Senior Indebtedness and
nothing in this Indenture shall deprive the Trustee of any of its
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rights as such holder. Nothing in this Article Fifteen shall apply to claims of,
or payments to, the Trustee under or pursuant to Section 607.
SECTION 1508. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article Fifteen shall in such case (unless the context shall
otherwise require) be construed as extending to and including such Paying Agent
within its meaning as fully for all intents and purposes as if the Paying Agent
were named in this Article Fifteen in addition to or in place of the Trustee;
provided, however, that Sections 1505 and 1507 shall not apply to the Company if
it acts as Paying Agent.
SECTION 1509. Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof which any such holder may have or
be otherwise charged with. The holders of Senior Indebtedness may, at any time
or from time to time and in their absolute discretion, change the manner, place
or terms of payment, change or extend the time of payment of, or renew or alter,
any such Senior Indebtedness, or amend or supplement any instrument pursuant to
which any such Senior Indebtedness is issued or by which it may be secured, or
release any security therefor, or exercise or refrain from exercising any other
of their rights under the Senior Indebtedness, including, without limitation,
the waiver or default thereunder, all without notice to or assent from the
Holders of the Securities or the Trustee and without affecting the obligations
of the Company, the Trustee or the Holders of Securities under this Article
Fifteen.
SECTION 1510. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of the Senior Indebtedness, and shall not be liable to any such holders
if it shall mistakenly pay over or distribute money or assets to Securityholders
or the Company.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
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72
EOG RESOURCES, INC.
By
Attest: -------------------------------------
-----------------------------------
BANK OF NEW YORK
By
Attest: -------------------------------------
-----------------------------------
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73
State of Texas )
) ss.:
County of Xxxxxx )
On the _______________ day of ___________________________________,
_________, before me personally came ________________________________________,
to me known, who, being by me duly sworn, did depose and say that he is
__________________________________________________________________ of EOG
Resources, Inc., one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he signed his
name thereto by like authority.
---------------------------------------
State of New York )
) ss.:
County of New York )
On the _______________ day of ___________________________________,
_________, before me personally came ________________________________________,
to me known, who, being by me duly sworn, did depose and say that he is
__________________________________________________________________ of Bank of
New York, one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation, and that he signed his name thereto
by like authority.
---------------------------------------
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