EXHIBIT 10.1
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XXXXXXXX GAS PIPELINES CENTRAL, INC.
as Issuer
TO
THE BANK OF NEW YORK
as Trustee
----------
INDENTURE
Dated as of November 8, 1999
7 3/8% Senior Notes due 2006
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TABLE OF CONTENTS
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ARTICLE 1
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions ............................................. 1
SECTION 1.02. Acts of Holders; Record Dates ........................... 10
SECTION 1.03. Notices, Etc., to Trustee and Company ................... 11
SECTION 1.04. Notice to Holders; Waiver ............................... 11
SECTION 1.05. Effect of Headings and Table of Contents ................ 12
SECTION 1.06. Successors and Assigns .................................. 12
SECTION 1.07. Separability Clause ..................................... 12
SECTION 1.08. Counterparts ............................................ 12
SECTION 1.09. Benefits of Indenture ................................... 12
SECTION 1.10. Governing Law ........................................... 12
SECTION 1.11. Legal Holidays .......................................... 13
ARTICLE 2
Form of Note
SECTION 2.01. Form Generally .......................................... 13
SECTION 2.02. Form of Face of Note .................................... 13
SECTION 2.03. Form of Reverse of Note ................................. 15
SECTION 2.04. Form of Trustee's Certificate of Authentication and
Transfer Notice ...................................... 18
ARTICLE 3
Issue, Execution Form and Registration of the Notes
SECTION 3.01. Authentication and Delivery of the Notes ................ 21
SECTION 3.02. Denomination ............................................ 21
SECTION 3.03. Execution, Authentication, Delivery and Dating .......... 21
SECTION 3.04. Restricted Legend ....................................... 22
SECTION 3.05. Restrictions on Transfer and Exchange ................... 22
SECTION 3.06. Registration, Transfer and Exchange ..................... 23
SECTION 3.07. Temporary Offshore Global Notes ......................... 26
SECTION 3.08. Mutilated, Destroyed, Lost and Stolen Notes ............. 27
SECTION 3.09. Payment of Principal and Interest ....................... 28
SECTION 3.10. Cancellation ............................................ 29
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ARTICLE 4
Satisfaction and Discharge; Defeasance
SECTION 4.01. Satisfaction and Discharge of Indenture ................. 30
SECTION 4.02. Defeasance and Discharge ................................ 31
SECTION 4.03. Covenant Defeasance ..................................... 31
SECTION 4.04. Conditions to Defeasance or Covenant Defeasance ......... 32
SECTION 4.05. Application of Trust Money .............................. 33
SECTION 4.06. Indemnity for U.S. Government Obligations ............... 33
ARTICLE 5
Remedies
SECTION 5.01. Event of Default ........................................ 34
SECTION 5.02. Acceleration of Maturity; Rescission Annulment .......... 35
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee .............................................. 36
SECTION 5.04. Trustee May File Proofs of Claim ........................ 37
SECTION 5.05. Trustee May Enforce Claims Without Possession of the
Notes ................................................ 38
SECTION 5.06. Application of Money Collected .......................... 38
SECTION 5.07. Limitation on Suits ..................................... 38
SECTION 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest ................................. 39
SECTION 5.09. Restoration of Rights and Remedies ...................... 39
SECTION 5.10. Rights and Remedies Cumulative .......................... 40
SECTION 5.11. Delay or Omission Not Waiver ............................ 40
SECTION 5.12. Control by Holders ...................................... 40
SECTION 5.13. Waiver of Past Defaults ................................. 41
SECTION 5.14. Undertaking for Costs ................................... 41
ARTICLE 6
The Trustee
SECTION 6.01. Certain Duties and Responsibilities ..................... 42
SECTION 6.02. Notice of Defaults ...................................... 43
SECTION 6.03. Certain Rights of Trustee ............................... 43
SECTION 6.04. Not Responsible for Recitals or Issuance of Notes ....... 45
SECTION 6.05. May Hold Notes .......................................... 45
SECTION 6.06. Money Held in Trust ..................................... 45
SECTION 6.07. Compensation and Reimbursement .......................... 45
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SECTION 6.08. Corporate Trustee Required Eligibility................... 46
SECTION 6.09. Resignation and Removal; Appointment of Successor ....... 47
SECTION 6.10. Acceptance of Appointment by Successor .................. 48
SECTION 6.11. Merger, Conversion, Consolidation or Succession to
Business ............................................. 49
SECTION 6.12. Preferential Collection of Claims Against Company........ 49
ARTICLE 7
Concerning The Holders
SECTION 7.01. Evidence of Action Taken by Holders ..................... 50
SECTION 7.02. Proof of Execution of Instruments and of Holding of
Notes; Record Date ................................... 50
SECTION 7.03. Holders to Be Treated as Owners ......................... 50
SECTION 7.04. Notes Owned by the Company Deemed Not Outstanding ....... 50
SECTION 7.05. Right of Revocation of Action Taken ..................... 51
ARTICLE 8
Supplemental Indentures
SECTION 8.01. Supplemental Indentures Without Consent of Holders ...... 52
SECTION 8.02. Supplemental Indentures With Consent of Holders ......... 52
SECTION 8.03. Execution of Supplemental Indentures .................... 53
SECTION 8.04. Effect of Supplemental Indentures ....................... 53
ARTICLE 9
Covenants
SECTION 9.01. Payment of Principal, Premium and Interest .............. 54
SECTION 9.02. Maintenance of Office of Agency ......................... 54
SECTION 9.03. Money for Payments on Notes to Be Held in Trust ......... 54
SECTION 9.04. Statement by Officers as to Default ..................... 56
SECTION 9.05. Payment of Expenses ..................................... 56
SECTION 9.06. Financial Statements .................................... 56
SECTION 9.07. Limitation on Liens ..................................... 57
SECTION 9.08. Limitation on Sale and Lease-back Transactions .......... 58
SECTION 9.09. Consolidation, Merger, Conveyance of Assets ............. 58
SECTION 9.10. Successor Corporation Substituted ....................... 59
SECTION 9.11. Further Assurances ...................................... 59
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ARTICLE 10
Redemption of Notes
SECTION 10.01. Optional Redemption ..................................... 59
SECTION 10.02. Selection by Trustee of Notes to Be Redeemed ............ 59
SECTION 10.03. Notice of Redemption .................................... 60
SECTION 10.04. Deposit of Redemption Price ............................. 61
SECTION 10.05. Notes Payable on Redemption Date ........................ 61
SECTION 10.06. Notes Redeemed in Part .................................. 61
Exhibits
Exhibit A - Restricted Legend
Exhibit B - Rule 144A Certificate
Exhibit C - Certificate of Beneficial Ownership
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INDENTURE, dated as of November 8, 1999, between XXXXXXXX GAS PIPELINES
CENTRAL, INC., a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
Xxx Xxxxxxxx Xxxxxx, Xxxxx, Xxxxxxxx 00000, and THE BANK OF NEW YORK, a New York
banking corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue of its 7 3/8% Senior
Notes due 2006 (the "Notes") and, to provide, among other things, for the
authentication, delivery and administration thereof, the Company has duly
authorized the execution and delivery of this Indenture; and
WHEREAS, 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 Notes by
the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes thereof, as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular;
(b) 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
(c) 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.
Certain terms, used principally in Article 6, are defined in that Article.
"Act" when used with respect to any Holder, has the meaning specified in
Section 1.02.
"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.
"Attributable Debt" means, with respect to any sale and lease-back
transaction as of any particular time, the present value discounted at a rate of
interest implicit in the terms of the lease of the obligations of the lessee
under such lease for net rental payments during the remaining term of the lease
(including any period for which such lease has been extended or may, at the
option of the Company, be extended).
"Beneficial Owner" means, with respect to a Book Entry Interest, a person
who is the beneficial owner of such Book Entry Interest, as reflected on the
books of DTC, or on the books of a Person maintaining an account with such
Depositary (directly as a Depositary participant or as an indirect participant,
in each case in accordance with the rules of DTC).
"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.
"Book Entry Interest" means a beneficial interest in a Global Note,
ownership of which shall be maintained and transfers of which shall be made
through book entries by DTC.
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"Business Day" means any day other than a Saturday, Sunday or any other
day on which banking institutions in New York, New York are authorized or
obligated by any applicable law to close.
"Cedel" means Cedelbank, societe anonyme.
"Certificate of Beneficial Ownership" means a certificate substantially in
the form of Exhibit C hereto.
"Certificated Note" means a Note in registered individual form without
interest coupons.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman or a Vice Chairman of the
Board, its President, a Vice President, its Chief Financial Officer or its Chief
Accounting Officer, and by its Treasurer, a Deputy Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Notes to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of such Notes.
"Comparable Treasury Price" means, with respect to any redemption date, (i)
the average of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, (A) the average
of the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Company obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Quotations. "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer and any
redemption date,
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the average, as determined by the Company, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Company by such Reference Treasury
Dealer at 5:00 p.m. on the third business day preceding such redemption date.
"Consolidated Funded Indebtedness" means the aggregate of all outstanding
Funded Indebtedness of the Company and any consolidated Subsidiaries, determined
on a consolidated basis in accordance with generally accepted accounting
principles.
"Consolidated Net Tangible Assets" means the total assets appearing on a
consolidated balance sheet of the Company and its consolidated Subsidiaries
less, in general: (i) intangible assets; (ii) current and accrued liabilities
(other than Consolidated Funded Indebtedness and capitalized rentals or leases),
deferred credits, deferred gains and deferred income; and (iii) reserves.
"Corporate Trust Office" means the principal office of the Trustee in the
City of New York, New York at which at any particular time its corporate trust
business shall be principally administered, which at the date hereof is located
at 000 Xxxxxxx Xxxxxx, Xxxxx 00 Xxxx, Xxx Xxxx, Xxx Xxxx 00000.
"Covenant Defeasance" has the meaning specified in Section 4.03.
"Defaulted Interest" has the meaning specified in Section 3.09(b), 3.09(c).
"Defeasance" has the meaning specified in Section 4.02.
"Depositary" means the depositary of each Global Note, which initially will
be DTC or, as to an Offshore Global Note, a common depositary for Euroclear and
Cedel.
"DTC" means The Depository Trust Company, a New York corporation.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System, or any successor.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor legislation.
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"Final Payment Date" means (i) November 15, 2006, (ii) with respect to
Notes called for redemption pursuant to Article 10, the date fixed for such
redemption, or (iii) in the event of the acceleration of the maturity of the
principal of the Notes pursuant to Section 5.01, the date of such acceleration.
"Funded Indebtedness" means any Indebtedness that matures more than one
year after the date as of which Funded Indebtedness is being determined less any
such Indebtedness as will be retired through or by means of any deposit or
payment required to be made within one year from such date under any prepayment
provision, sinking fund, purchase fund or otherwise.
"Global Holder" means the nominee of DTC in whose name the Global Note is
registered.
"Global Note" means a Note that evidences the Notes authenticated and
delivered to, and registered in the name of, DTC for such Notes or a nominee
thereof.
"Holder" or "Noteholder" means the registered holder of any Note.
"Indebtedness" means indebtedness that is for money borrowed from others.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof.
"Independent Investment Banker" means one of the Reference Treasury Dealers
appointed by the Company.
"Indirect Participants" mean other entities such as banks, brokers, dealers
and trust companies which have access to DTC's system.
"Initial Purchasers" means the initial purchasers party to the Purchase
Agreement dated November 3, 1999 relating to the sale of the Notes by the
Company.
"Interest Payment Date," when used with respect to any Note, means the
Stated Maturity of an installment of interest on such Note.
"Issue Date" means the date on which the Notes are originally issued under
the Indenture.
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"Maturity" when used with respect to any Note, means the date on which the
principal of such Note 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.
"Notes" means any of the Company's 7 3/8% Notes issued on the Issue Date
due November 15, 2006.
"Officers' Certificate" means a certificate signed by the Chairman or Vice
Chairman of the Board, the President, a Vice President, the Chief Financial
Officer or the Chief Accounting Officer, and by the Treasurer, a Deputy
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company, and delivered to the Trustee.
"Offshore Global Note" means a Global Note that does not bear the
Restricted Legend.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company.
"Optional Redemption" has the meaning specified in Section 2.03 and Article
10 hereof.
"Outstanding" when used with respect to the Notes, means, as of the date
of determination, all of the Notes authenticated and delivered under this
Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes 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 Notes; provided that, if such Notes 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) Notes which have been paid pursuant to Section 3.06 or in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in respect
of which there shall have been presented to the Trustee proof satisfactory
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to it that such Notes are held by a bona fide purchaser in whose hands such
Notes are valid obligations of the Company;
provided that in determining whether the Holders of the requisite principal
amount of the Outstanding Notes have given any request, demand, authorization,
direction, notice, consent or waiver hereunder Notes owned by the Company or any
other obligor upon the Notes or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding.
"Participant" means a member of, or a participant in DTC.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (or premium, if any) or interest on any of the Notes on behalf of
the Company.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity, including a
government or political subdivision or an agency or instrumentality thereof.
"Permanent Offshore Global Note" means an Offshore Global Note that does
not bear the legend set forth in Section 3.04.
"Place of Payment" when used with respect to the Notes, means the place or
places where the principal of (and premium, if any) and interest on the Notes is
payable as contemplated by Section 3.01.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 3.08 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
"Principal Property" means any natural gas pipeline, gathering property, or
natural gas processing plant located in the United States, except any such
property that in the opinion of the Board of Directors is not of material
importance to the total business conducted by the Company and any consolidated
Subsidiaries.
"Purchase Agreement" means the Purchase Agreement dated November 3, 1999
between the Initial Purchasers and the Company, relating to the sale of the
Notes by the Company.
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"Redemption Date" means the date on or after which, from time to time, the
Company, at its option, may redeem the Notes in whole or in part.
"Redemption Price" has the meaning specified in Section 2.03.
"Reference Treasury Dealer" means each of ABN AMRO Incorporated and Warburg
Dillon Read LLC and their respective successors and, at the option of the
Company, additional Primary Treasury Dealers; provided, however, that if any of
the foregoing shall cease to be a primary U.S. Government Notes dealer in New
York City (a "Primary Treasury Dealer"), the Company shall substitute therefor
another Primary Treasury Dealer.
"Regular Record Date" as used with respect to any Interest Payment Date
(except a date for payment of defaulted principal and interest) shall mean the
first day of the calendar month of the Interest Payment Date whether or not such
Regular Record Date is a Business Day.
"Regulation S" means Regulation S under the Securities Act.
"Responsible Officer" means, with respect to the Trustee, any officer
within the corporate trust office of the Trustee, including any vice-president,
any assistant vice-president, any assistant secretary, any assistant treasurer,
trust officer or other officer of the corporate trust office 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 that
officer's knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.
"Restricted Legend" means the legend set forth in Exhibit A hereto.
"Restricted Period" means the relevant 40-day distribution compliance
period as defined in Regulation S.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Certificate" means (i) a certificate substantially in the form
of Exhibit B hereto or (ii) a written certification addressed to the Company and
the Trustee to the effect that the Person making such certification (x) is
acquiring such Note (or beneficial interest) for its own account or one or more
accounts with respect to which it exercises sole investment discretion and that
it and each such account is a qualified institutional buyer within the meaning
of Rule 144A, (y) is aware that the transfer to it or exchange, as applicable,
is being made in reliance
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upon the exemption from the provisions of Section 5 of the Securities Act
provided by Rule 144A and (z) acknowledges that it has received such information
regarding the Company as it has requested pursuant to Rule 144A(d)(4) or has
determined not to request such information.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.09.
"Stated Maturity" when used with respect to any Note or any installment of
principal thereof or interest thereon, means the date specified in such Note as
the fixed date on which the principal of such Note or such installment of
principal or interest is due and payable.
"Subsidiary" means any corporation at least a majority of the outstanding
securities of which having ordinary voting power shall be owned by the Company
and/or another Subsidiary or Subsidiaries.
"Temporary Offshore Global Note" means an Offshore Global Note that bears
the legend set forth in Section 3.07.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) equal to the Comparable Treasury Price for
such redemption date.
"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.
"U.S. Global Note" means a Global Note that bears the Restricted Legend.
"U.S. Government Obligations" has the meaning specified in Section 4.04.
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"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 1.02. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders shall be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the 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 6.01) 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) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Note shall bind every future Holder of the
same Note and the Holder of every Note 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 Note.
(d) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no
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obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding Notes
have authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Notes shall be computed as of such record date; provided that no
such authorization, agreement or consent by the Holders on such record date
shall be deemed effective unless it shall become effective pursuant to the
provisions of this Indenture not later than six months after the record date.
SECTION 1.03. 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,
(a) 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: Corporate Trust Trustee
Administration; provided, however, that such instrument will be considered
properly given if submitted in an electronic format, i.e., by facsimile, E-Mail
or otherwise, or
(b) 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; provided, however, that such instrument will be
considered properly given if submitted in an electronic format, i.e., by
facsimile, E-Mail or otherwise.
SECTION 1.04. 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, not later than the latest date and not earlier than the earliest
date, prescribed for the giving of such notice. In any case where notice to
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,
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such notice may he waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
SECTION 1.05. 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 1.06. 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 1.07. Separability Clause.
In case any provision in this Indenture or in the Notes 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 1.08. Counterparts.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
SECTION 1.09. Benefits of Indenture.
Nothing in this Indenture or in the Notes express or implied, shall give to
any Person, other than the parties hereto and their successors hereunder, any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.10. Governing Law.
This Indenture and the Notes shall be governed by, and construed and
interpreted in accordance with, the laws of the State of New York, and all
rights
12
and remedies shall be governed by such laws without regard for the principles of
its conflicts of laws.
SECTION 1.11. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Note shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Notes) 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 no
interest shall accrue for the period from and after such Interest Payment Date,
Redemption Date or Stated Maturity, as the case may be, except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case with the same force and
effect as if made on such date.
ARTICLE 2
Form of Note
SECTION 2.01. Form Generally.
The Notes and the Trustee's certificate of authentication shall be in
substantially the following form:
SECTION 2.02. Form of Face of Note.
No.__________________
[CUSIP]
XXXXXXXX GAS PIPELINES CENTRAL, INC.
7 3/8% Senior Note due 2006
XXXXXXXX GAS PIPELINES CENTRAL, INC., a Delaware corporation (the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
__________ or registered assigns, the principal sum of _________________ Dollars
($______________________) on November 15, 2006, and to pay
13
interest on said principal sum from November 8, 1999, or from the most recent
interest payment date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, in arrears on May 15 and November
15 of each year commencing May 15, 2000, at a rate of 7 3/8% per annum, until
the principal hereof shall have become due and payable, and on any overdue
principal and premium, if any, and (without duplication and to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the same rate per annum compounded. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year of twelve 30-day months. In the event that any date on which
interest is payable on this Note is not a Business Day, then payment of interest
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay),
except that, if such Business Day is in the next succeeding calendar year, such
payment shall be made on the immediately preceding Business Day, in each case
with the same force and effect as if made on such date. The interest installment
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in the Indenture, be paid to the Person in whose name
this Note (or one or more Predecessor Notes, as defined in said Indenture) is
registered at the close of business on the Regular Record Date (as such term is
defined in the Indenture) for such interest installment. Any such interest
installment not punctually paid or duly provided for shall forthwith cease to be
payable to the registered Holders on such regular record date and may be paid to
the Person in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on a special record date to be fixed by the
Trustee for the payment of such defaulted interest, notice whereof shall be
given to the registered Holders of the Note not less than 10 days prior to such
special record date, or may be paid at any time in any other lawful manner and
upon such notice as more fully provided in the Indenture. Payments on this
Global Note will be made to the Depository Trust Company, or to a successor
Depository.
This Note shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee.
The provisions of this Note are continued on the reverse side hereof and
such continued provisions shall for all purposes have the same effect as though
fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
14
Dated:
----------
XXXXXXXX GAS PIPELINES CENTRAL, INC.
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
SECTION 2.03. Form of Reverse of Note.
This Global Note is one of a duly authorized issuance of notes of the
Company (herein sometimes referred to as the "Notes"), specified in the
Indenture, issued pursuant to an Indenture dated as of November 8, 1999 (the
"Indenture"), duly executed and delivered between the Company and The Bank of
New York; as Trustee (the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the
respective rights, limitations of rights, obligations, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Notes. By the
terms of the Indenture, the Notes are limited in aggregate principal amount to
$175,000,000.
The Company shall have the right to redeem this Note at the option of the
Company, without premium or penalty, in whole or in part at any time (an
"Optional Redemption"), at a redemption price equal to (a) 100% of the principal
amount hereof, and (b) the sum of the present values of the remaining scheduled
payments of principal and interest hereon discounted to the redemption date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate (as such term is defined in the Indenture), plus 15 basis
points, plus any accrued but unpaid interest thereon to the date of such
redemption (the "Redemption Price"). Any redemption pursuant to this paragraph
will be made upon not less than 30 days nor more than 60 days notice, at the
Redemption Price. If the Notes are only partially redeemed by the Company
pursuant to an Optional Redemption, the Notes will be redeemed pro rata or by
lot or by any other method utilized by the Trustee; provided that if, at the
time of redemption, the Notes are registered as a Global Note, DTC shall
15
determine the principal amount of such Notes held by each Beneficial Owner to be
redeemed in accordance with its procedures.
In the event of redemption of this Note in part only, a new Note or Notes
for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
In case an Event of Default, as defined in the Indenture, shall have
occurred and be continuing, the principal of all of the Notes may be declared,
and upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the Holders of at least a majority in aggregate principal
amount of the Notes at the time outstanding, as defined in the Indenture, to
execute supplemental indentures for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of the Indenture or
of any supplemental indenture or of modifying in any manner the rights of the
Holders of the Notes; provided, however, that no such supplemental indenture
shall without the consent of the Holder of each Note affected thereby, (1)
change the due date for the payment of principal of or any installment of
interest on any Note, (2) reduce the principal amount of or the rate of interest
on any Note, (3) change the coin or currency in which or the required places at
which any Note or the interest thereon is payable, or (4) reduce the
above-stated percentage of Notes necessary to modify or amend the Indenture or
the Notes or for waiver of compliance with certain provisions thereof or for
waiver of certain defaults. The Indenture also contains provisions permitting
the Holders of a majority in aggregate principal amount of the Notes at the time
outstanding affected thereby, on behalf of all of the Holders of the Notes, to
waive any past default in the performance of any of the covenants contained in
the Indenture, or established pursuant to the Indenture with respect to the
Notes, and its consequences, except a default in the payment of the principal of
or premium, if any, or interest on any of the Notes. Any such consent or waiver
by the registered Holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such Holder and upon all future
Holders and owners of this Note and of any Note issued in exchange herefor or in
place hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
16
interest on this Note at the time and place and at the rate and in the currency
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, this Note is transferable by the registered Holder hereof upon surrender
of this Note for registration of transfer at the office or agency of the Trustee
in the City and State of New York accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the registered Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Notes of authorized denominations and for
the same aggregate principal amount will be issued to the designated transferee
or transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto.
Prior to due presentment for registration of transfer of this Note, the
Company, the Trustee, and any paying agent may deem and treat the registered
Holder hereof as the absolute owner hereof for the purpose of receiving payment
of or on account of the principal hereof and premium, if any, and interest due
hereon and for all other purposes, and neither the Company nor the Trustee nor
any paying agent shall be affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Note, or for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture, against any incorporator,
stockholder, officer or director, past, present or future, as such, of the
Company or of any 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, all such liability being, by the acceptance hereof and as
part of the consideration for the issuance hereof, expressly waived and
released.
The Notes are issuable only in registered form without interest coupons in
denominations of $1,000 and integral multiples thereof. This Global Note is
exchangeable for Notes in definitive form only under certain limited
circumstances set forth in the Indenture. Notes so issued are issuable only in
registered form without interest coupons in denominations of $1,000 and integral
multiples thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Notes so issued are exchangeable for a like
aggregate principal amount of Notes of a different authorized denomination, as
requested by the Holder surrendering the same.
All terms used in this Note that are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
17
SECTION 2.04. Form of Trustee's Certificate of Authentication and Transfer
Notice.
CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
-----------------------------
Authorized Signatory
18
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
________________________________________________________________________________
Please print or typewrite name and address including zip code of assignee
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _________________________ attorney to transfer said Note on the books
of the Company with full power of substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED
ON ALL NOTES OTHER THAN
PERMANENT OFFSHORE GLOBAL NOTES]
In connection with any transfer of this Note occurring prior to the
date which is two years after the later of the original issuance of this Note or
the last date on which this Note was held by the Company or an Affiliate of the
Company, the undersigned confirms that without utilizing any general
solicitation or general advertising that:
19
[Check One]
[ ](a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act of 1933, as amended, provided by
Rule 144A thereunder.
or
[ ](b) this Note is being transferred other than in accordance with (a) above
and documents are being furnished which comply with the conditions of
transfer set forth in this Note and the Indenture.
If neither of the foregoing boxes is checked, the Trustee or other Registrar
shall not be obligated to register this Note in the name of any Person other
than the Holder hereof unless and until the conditions to any such transfer or
registration set forth herein and in Section 3.05 of the Indenture shall have
been satisfied.
Date:
----------------- -------------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as written upon the face of the
within-mentioned instrument in every
particular, without alteration or any
change whatsoever
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:
---------------- -------------------------------------
NOTICE: To be executed by an executive
officer
20
ARTICLE 3
Issue, Execution Form and Registration of the Notes
SECTION 3.01. Authentication and Delivery of the Notes. Upon execution and
delivery of this Indenture, Notes in an aggregate principal amount of not in
excess of $175,000,000 (except as otherwise provided in Section 3.08) may be
executed and delivered by the Company to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver said Notes according to the
instructions contained in a Company Order.
SECTION 3.02. Denomination.
The Notes shall be issuable in registered form without interest coupons and
in denominations of $1,000 and integral multiples thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Notes shall be executed on behalf of the Company by its Chairman or a
Vice Chairman of the Board, its President, a Vice President, the Chief Financial
Officer or the Chief Accounting Officer, 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 Notes may be manual or facsimile.
Notes 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 Notes or did not hold
such offices at the date of such Notes.
At any time after the execution and delivery of this Indenture, the Company
may deliver Notes executed by the Company to the Trustee for authentication,
together with a Company Order for the authentication and delivery of such Notes,
and the Trustee in accordance with the Company Order shall authenticate and
deliver such Notes.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be valid
or obligatory for any purpose unless there appears on such Note a certificate of
authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly
21
authenticated and delivered hereunder and is entitled to the benefits of this
Indenture.
SECTION 3.04. Restricted Legend. (a) Except as otherwise provided in
paragraph (c), each Global Note representing Notes originally sold by the
Initial Purchasers in accordance with Rule 144A will bear the Restricted Legend.
(b) If the Company determines (upon the advice of counsel and such other
certifications and evidence as the Company may reasonably require) that any Note
is eligible for resale pursuant to Rule 144(k) under the Securities Act (or a
successor provision) and that the Restricted Legend is no longer necessary or
appropriate in order to ensure that subsequent transfers of the Note (or a
beneficial interest therein) are effected in compliance with the Securities Act,
the Company may instruct the Trustee to cancel the Note and issue to the Holder
thereof (or to its transferee) a new Note of like tenor and amount, registered
in the name of the Holder thereof (or its transferee), that does not bear the
Restricted Legend, and the Trustee will comply with such instruction.
(c) By its acceptance of any Note bearing the Restricted Legend (or any
beneficial interest in such a Note), each Holder thereof and each owner of a
beneficial interest therein acknowledges the restrictions on transfer of such
Note (and any such beneficial interest) set forth in the Indenture and in the
Restricted Legend and agrees that it will transfer such Note (and any such
beneficial interest) only in accordance with the Indenture and such legend.
SECTION 3.05. Restrictions on Transfer and Exchange. (a) The transfer or
exchange of any Note (or a beneficial interest therein) may only be made in
accordance with this Section and the applicable rules and procedures of DTC. The
Trustee shall refuse to register any requested transfer or exchange that does
not comply with the preceding sentence.
(b) The transfer or exchange of any Note (or a beneficial interest therein)
that bears the Restricted Legend may only be made in compliance with the
provisions of the Restricted Legend.
(c) The Trustee shall not register the transfer of any Note whose principal
amount is less than $100,000, except that upon transfer of the entire principal
amount of Notes held by any Holder, a Note may be issued to the transferee in
such entire principal amount even though less than $100,000.
(d) The transfer or exchange of a beneficial interest in an Offshore Global
Note for a beneficial interest in a U.S. Global Note may only be made upon
receipt by the Trustee of a duly completed Rule 144A Certificate.
22
(e) During the Restricted Period, beneficial interests in an Offshore
Global Note may be held through the Depositary only through Euroclear and Cedel,
and their respective direct and indirect participants.
(f) The Trustee will retain copies of all certificates, opinions and other
documents received in connection with the transfer or exchange of a Note (or a
beneficial interest therein), and the Company will have the right to inspect and
make copies thereof at any reasonable time upon written notice to the Trustee.
SECTION 3.06. Registration, Transfer and Exchange.
(a) Registered Global Form Only. The Notes will be issued in registered
form only. Except under the circumstances described in paragraph (b)(iv), the
Notes will be issued in global form only.
(b) Global Notes. (i) Each Global Note will be registered in the name of
the Depositary or its nominee and, so long as DTC is serving as the Depositary
thereof, will bear the following legends:
Unless this Note is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the Company or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has a beneficial interest herein.
This Note is a Global Note within the meaning of the Indenture hereinafter
referred to, and is registered in the name of a Depositary or a nominee of
a Depositary. This Note is exchangeable for Notes registered in the name of
a person other than DTC or its nominee only in the limited circumstances
described in the Indenture, and no transfer of this Note (other than a
transfer of this Note as a whole by DTC to a nominee of DTC or by a nominee
of DTC to DTC or another nominee of DTC) may be registered except in
limited circumstances.
(ii) Each Global Note will be delivered to the Trustee as custodian
for the Depositary. Transfers of a Global Note (but not a beneficial
interest therein) will be limited to transfers thereof in whole, but not in
part, to the Depositary, its successors or their respective nominees.
23
(iii) Participants will have no rights under the Indenture with
respect to any Global Note held on their behalf by the Depositary, and the
Depositary may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner and Holder of such Global Note
for all purposes whatsoever. Notwithstanding the foregoing, the Depositary
or its nominee may grant proxies and otherwise authorize any person
(including any Participant and any Person that holds a beneficial interest
in a Global Note through a Participant) to take any action which a Holder
is entitled to take under the Indenture or the Notes, and nothing herein
will impair, as between the Depositary and its Participants, the operation
of customary practices governing the exercise of the rights of a holder of
any security.
(iv) If (x) the Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for a Global Note and a successor
depositary is not appointed by the Company within 90 days of the notice or
(y) an Event of Default has occurred and is continuing and the Trustee has
received a request from the Depositary, the Trustee will promptly exchange
each beneficial interest in the Global Note for one or more Certificated
Notes in authorized denominations having an equal aggregate principal
amount registered in the name of the owner of such beneficial interest, as
identified to the Trustee by the Depositary, and thereupon the Global Note
will be deemed canceled. If such Note was a U.S. Global Note or a Temporary
Offshore Global Note, then each Certificated Note issued in exchange
therefor will bear the Restricted Legend; provided that any Holder of a
Certificated Note issued in exchange for a beneficial interest a Temporary
Offshore Global Note will have the right upon presentation to the Trustee
of a duly completed Certificate of Beneficial Ownership after the
Restricted Period to exchange such Certificated Note for a Certificated
Note of like tenor and amount that does not bear the Restricted Legend,
registered in the name of such Holder.
(c) Transfers and Exchanges Generally. A Holder may transfer a Note (or a
beneficial interest therein) to another Person or exchange a Note (or a
beneficial interest therein) for another Note or Notes of any authorized
denomination by presenting to the Trustee a written request therefor stating the
name of the proposed transferee or requesting such an exchange, accompanied by
any certification, opinion or other document required by Section 3.05. The
Trustee will promptly register any such transfer or exchange that meets the
requirements of this Section by noting the same in the register maintained by
the Trustee for the purpose; provided that (x) no transfer or exchange will be
effective until the transfer or exchange is registered in such register and (y)
the Trustee will not be required (i) to issue, register the transfer of or
exchange any Note for a
24
period of 15 days before a mailing of a notice of redemption of Notes, (ii) to
register the transfer of or exchange any Note so selected for redemption in
whole or in part, except, in the case of a partial redemption, that portion of
any such Note not being redeemed, or (iii) if a redemption is to occur after a
Regular Record Date but on or before the corresponding Interest Payment Date, to
register the transfer of or exchange any Note on or after such Regular Record
Date and before the date of redemption. Prior to the registration of any
transfer, the Company, the Trustee and their agents will treat the person in
whose name the Note is registered as the owner and Holder thereof for all
purposes (whether or not the Note is overdue), and will not be affected by
notice to the contrary.
From time to time the Company will execute and the Trustee will
authenticate additional Notes as necessary in order to permit the registration
of a transfer or exchange in accordance with this Section.
No service charge will be imposed in connection with any transfer or
exchange of any Note, but the Company may require payment of a sum sufficient to
cover any transfer tax or similar governmental charge payable in connection
therewith (other than any such transfer tax or other similar governmental charge
payable upon exchange pursuant to paragraph (b)(iv)).
(d) Procedures to Be Followed by the Trustee. (i) Global Note to Global
Note. If a beneficial interest in a Global Note is transferred or exchanged for
a beneficial interest in another Global Note, the Trustee will (x) record a
decrease in the principal amount of the Global Note being transferred or
exchanged equal to the principal amount of such transfer or exchange and (y)
record a like increase in the principal amount of the other Global Note. Any
beneficial interest in one Global Note that is transferred to a Person who takes
delivery in the form of an interest in another Global Note, or exchanged for an
interest in another Global Note, will, upon transfer or exchange, cease to be an
interest in such Global Note and become an interest in the other Global Note
and, accordingly, will thereafter be subject to all transfer and exchange
restrictions, if any, and other procedures applicable to beneficial interests in
such other Global Note for as long as it remains such an interest.
(ii) Certificated Note to Certificated Note. If a Certificated Note is
transferred or exchanged for another Certificated Note, the Trustee will
(x) cancel the Certificated Note being transferred or exchanged, (y)
deliver one or more new Certificated Notes in authorized denominations
having an aggregate principal amount equal to the principal amount of such
transfer or exchange to the transferee (in the case of a transfer) or the
Holder of the canceled Certificated Note (in the case of an exchange),
registered in the name of such transferee or Holder, as applicable, and (z)
25
if such transfer or exchange involves less than the entire principal amount
of the canceled Certificated Note, will deliver to the Holder thereof one
or more new Certificated Notes in authorized denominations having an
aggregate principal amount equal to the untransferred or unexchanged
portion of the canceled Certificated Note, registered in the name of the
Holder thereof.
SECTION 3.07. Temporary Offshore Global Notes.
(a) Each Note originally sold by the Initial Purchasers in reliance
upon Regulation S will be evidenced by one or more Offshore Global Notes that
bear the following legend:
THIS NOTE IS A TEMPORARY GLOBAL NOTE. PRIOR TO THE EXPIRATION OF THE
RESTRICTED PERIOD APPLICABLE HERETO, BENEFICIAL INTERESTS HEREIN MAY
NOT BE HELD BY ANY PERSON OTHER THAN (1) A NON-U.S. PERSON OR (2) A
U.S. PERSON THAT PURCHASED SUCH INTEREST IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"). BENEFICIAL INTERESTS HEREIN ARE NOT EXCHANGEABLE
FOR PHYSICAL NOTES OTHER THAN A PERMANENT GLOBAL NOTE IN ACCORDANCE
WITH THE TERMS OF THE INDENTURE. TERMS IN THIS LEGEND ARE USED AS USED
IN REGULATION S UNDER THE SECURITIES ACT.
(b) An owner of beneficial interest in a Temporary Offshore Global Note (or
a Person acting on behalf of such an owner) may provide to the Trustee (and the
Trustee will accept) a duly completed Certificate of Beneficial Ownership at any
time after the Restricted Period (it being understood that the Trustee will not
accept any such certificate during the Restricted Period). Promptly after
acceptance of a Certificate of Beneficial Ownership with respect to such a
beneficial interest, the Trustee will cause such beneficial interest to be
exchanged for an equivalent beneficial interest in a Permanent Offshore Global
Note, and will (x) permanently reduce the principal amount of such Temporary
Offshore Global Note by the amount of such beneficial interest and (y) increase
the principal amount of such Permanent Offshore Global Note by the amount of
such beneficial interest.
(c) Notwithstanding anything to the contrary contained herein, beneficial
interests in a Temporary Offshore Global Note may be held through the Depositary
only through Euroclear and Cedel and their respective direct and indirect
participants.
26
(d) Notwithstanding paragraph (b), if after the Restricted Period any
Initial Purchaser owns a beneficial interest in a Temporary Offshore Global
Note, such Initial Purchaser may, upon written request to the Trustee
accompanied by a certification as to its status as an Initial Purchaser,
exchange such beneficial interest for an equivalent beneficial interest in a
Permanent Offshore Global Note, and the Trustee will comply with such request
and will (x) permanently reduce the principal amount of such Temporary Offshore
Global Note by the amount of such beneficial interest and (y) increase the
principal amount of such Permanent Offshore Global Note by the amount of such
beneficial interest.
SECTION 3.08. Mutilated, Destroyed, Lost and Stolen Notes.
(a) If any mutilated Note is surrendered to the Trustee, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
(b) If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Note 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 Note has been acquired by a bona fide
purchaser, the Company shall execute and upon its written request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Note, a new Note of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
(c) In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
(d) Upon the issuance of any new Note 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.
(e) Every new Note issued pursuant to this Section in lieu of any
destroyed, lost or stolen Note shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Note 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 Notes duly issued hereunder.
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(f) 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 Notes.
SECTION 3.09. Payment of Principal and Interest.
(a) The Company covenants and agrees that it will duly and punctually pay
or cause to be paid the principal of and interest on each of the Notes at the
place or places, at the respective times and in the manner provided in the Notes
or in a notice of redemption to the Holders given pursuant to Section 10.04.
Except for the payment due on the Final Payment Date, each installment of
principal of and interest on the Notes will be made without presentation (i) by
check drawn on a bank in New York City mailed to each Holder at such Holder's
registered address or (ii) upon application by a Holder to the Trustee not later
than the relevant Regular Record Date, by wire transfer in immediately available
funds to a dollar account maintained by the Holder with a bank in the United
States. Wire transfers of immediately available funds will also be made to the
Depositary for the DTC Note who will credit the accounts of its Participants
according to the rules of the Depositary. Payments due on the Final Payment Date
require the presentation and surrender of the Note for payment at an office or
agency maintained pursuant to Section 9.02 and such payments due shall be made
to the presentor, or at the written instructions of such presentor given to the
Trustee at least three Business Days prior to the date of presentation of the
Note.
(b) Interest on any Note 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 Note is registered at the close of business on the Regular Record Date
for such interest.
(c) Interest on any Note which is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith be payable to the Global Holder by the Company, at
its election in each case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted Interest to
the Global Holder in whose name the Notes is registered at the close of
business on a special record date ("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 Note 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
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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 Global Holder 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 the Global Holder of the Notes, 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 Global Holder of the Notes at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted Interest on the
Notes in any other lawful manner if, after written 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 in its
sole discretion.
Subject to the foregoing provisions of this Section, each Note delivered
under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Note shall carry the rights to interest accrued and unpaid,
and to accrue, which were carried by such other Note.
SECTION 3.10. Cancellation.
All Notes surrendered for payment, redemption, registration of transfer or
exchange 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 Notes previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and all Notes so delivered shall be promptly cancelled by the
Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes
cancelled as provided in this Section, except as expressly permitted by this
Indenture. All cancelled Notes held by the Trustee shall be disposed of in
accordance with its customary practices.
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ARTICLE 4
Satisfaction and Discharge; Defeasance
SECTION 4.01. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of transfer or exchange of the Notes herein
expressly provided for), and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this
Indenture, when
(a) either:
(i) all Notes theretofore authenticated and delivered (other than (A)
Notes which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.08 and (B) Notes for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 9.03) have been
delivered to the Trustee for cancellation; or
(ii) all such Notes not theretofore delivered to the Trustee for
cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated Maturity within
one year, or
(C) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (A), (B) or (C) above, has deposited or
caused to be deposited with the Trustee as funds in trust for the purpose
an amount sufficient to pay and discharge the entire indebtedness on such
Notes not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of such deposit
(in the case of Notes which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
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(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.07, and, if money
shall have been deposited with the Trustee pursuant to subclause (ii) of clause
(a) of this Section, the obligations of the Trustee under Section 4.02 and the
last paragraph of Section 9.03 shall survive.
SECTION 4.02. Defeasance and Discharge.
The following provisions shall apply to the Notes. In addition to discharge
of this Indenture pursuant to Sections 4.01 and 4.03, in the case of any Notes
with respect to which an amount sufficient to pay and discharge the entire
indebtedness on such Notes not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest, as certified
pursuant to subparagraph (a) of Section 4.04 can be determined at the time of
making the deposit referred to in such subparagraph (a), the Company shall be
deemed to have paid and discharged the entire indebtedness on all such Notes as
provided in this Section on and after the date the conditions set forth in
Section 4.04 are satisfied, and the provisions of this Indenture with respect to
such Notes shall no longer be in effect (except as to (i) rights of transfer and
exchange of such Notes, (ii) substitution of mutilated, defaced, destroyed, lost
or stolen Notes, (iii) rights of Holders of the Notes to receive, solely from
the trust fund described in subparagraph (ii) of Section 4.01, payments of
principal thereof and interest, if any, thereon upon the original stated due
dates therefor (but not upon acceleration), and (iv) the rights, obligations,
duties and immunities of the Trustee hereunder, and (v) this Section 4.02, (vi)
the rights of the Holders of the Notes as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them)
(hereinafter called "Defeasance"), and the Trustee at the cost and expense of
the Company, shall execute proper instruments acknowledging the same.
SECTION 4.03. Covenant Defeasance.
In the case of any Notes with respect to which an amount sufficient to pay
and discharge the entire indebtedness on such Notes not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if any) and interest,
as certified pursuant to subparagraph (a) of Section 4.04 can be determined at
the
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time of making the deposit referred to in such subparagraph (a), (i) the Company
shall be released from its obligations under any covenants specified in or
pursuant to this Indenture (except as to (A) rights of registration of transfer
and exchange of such Notes, (B) substitution of mutilated, defaced, destroyed,
lost or stolen Notes, (C) rights of Holders of such Notes to receive, from the
Company pursuant to Section 9.01, payments of principal thereof and interest, if
any, thereon upon the original stated due dates therefor (but not upon
acceleration), (D) the rights, obligations, duties and immunities of the Trustee
hereunder, and (E) the rights of the Holders of such Notes as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all
or any of them, and (ii) the occurrence of any event specified in Sections
5.0l(d) (with respect to any of the covenants specified in or pursuant to this
Indenture) and 5.01(h) shall be deemed not to be or result in an Event of
Default, in each case with respect to the Outstanding Notes as provided in this
Section on and after the date the conditions set forth in Section 4.04 are
satisfied (hereinafter called "Covenant Defeasance"), and the Trustee, at the
cost and expense of the Company, shall execute proper instruments acknowledging
the same. For this purpose, such Covenant Defeasance means that the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant (to the extent so
specified in the case of Section 5.01(d)), whether directly or indirectly by
reason of any reference elsewhere herein to any such covenant or by reason of
any reference in any such covenant to any other provision herein or in any other
document, but the remainder of this Indenture and the Notes shall be unaffected
thereby.
SECTION 4.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 4.02
or 4.03 to the Outstanding Notes:
(a) with reference to Section 4.02 or 4.03, the Company has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as funds in
trust, specifically pledged as security for, and dedicated solely to, the
benefit of the Holders of the Notes (i) cash in an amount, or (ii) direct
obligations of the United States of America, backed by its full faith and credit
("U.S. Government Obligations"), maturing as to principal and interest, if any,
at such times and in such amounts as will insure the availability of cash, or
(iii) a combination thereof, in each case sufficient, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and discharge the
principal of and interest, if any, on all of the Notes on each date that such
principal or interest, if any, is due and payable, in accordance with the terms
of this Indenture and the Notes;
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(b) in the case of Defeasance under Section 4.02, the Company has delivered
to the Trustee an Opinion of Counsel based on the fact that (x) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (y), since the date hereof, there has been a change in the applicable
United States federal income tax law, in either case to the effect that, and
such opinion shall confirm that, the Holders of the Notes will not recognize
income, gain or loss for United States federal income tax purposes as a result
of such deposit, Defeasance and discharge and will be subject to United States
federal income tax on the same amount and in the same manner and at the same
times, as would have been the case if such deposit, Defeasance and discharge had
not occurred;
(c) in the case of Covenant Defeasance under Section 4.03, the Company has
delivered to the Trustee an Opinion of Counsel to the effect that, and such
opinion shall confirm that, the Holders of the Notes will not recognize income,
gain or loss for United States federal income tax purposes as a result of such
deposit and Covenant Defeasance and will be subject to United States federal
income tax on the same amount and in the same manner and at the same times, as
would have been the case if such deposit and Covenant Defeasance had not
occurred;
(d) such Defeasance or Covenant Defeasance will not result in a breach or
violation of, or constitute a default under, any agreement or instrument to
which the Company is a party or by which it is bound; and
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent contemplated by this provision have been complied with.
SECTION 4.05. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 9.03, all money
and U.S. Government Obligations deposited with the Trustee pursuant to Section
4.04 shall be held in trust, and such money and all money from such U.S.
Government Obligations shall be applied by it, in accordance with the provisions
of the Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent), to the
Persons entitled thereto, of the principal (and premium, if any) and interest
for whose payment such money and U.S. Government Obligations has been
deposited with the Trustee.
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SECTION 4.06. Indemnity for U.S. Government Obligations.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 4.04 or the principal or interest received in
respect of such obligations other than any such tax, fee or other charge that by
law is for the account of the Holders of Outstanding Notes.
ARTICLE 5
Remedies
SECTION 5.01. Event of Default.
"Event of Default," wherever used herein with respect to the Notes, 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):
(a) default in the payment of interest upon any Note when it becomes due
and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of (or premium, if any, on) any
Note either at Maturity upon any redemption, by declaration or otherwise; or
(c) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture, and continuance of such default or breach for a
period of 90 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in principal amount of the Outstanding Notes 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
(d) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or
34
order for relief or any such other decree or order unstayed and in effect for a
period of 90 consecutive days; or
(e) the commencement by the Company of a voluntary case or proceeding under
any applicable Federal or State bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Company or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company in furtherance of
any such action.
SECTION 5.02. Acceleration of Maturity; Rescission Annulment.
If an Event of Default with respect to the Outstanding Notes occurs and is
continuing, then in every such case the Trustee, if the Trustee has actual
knowledge thereof, or the Holders of not less than 25% in principal amount of
the Outstanding Notes may, but shall not be obligated to, declare the principal
amount of all of the Notes to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect to the
Notes 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 the Notes representing a majority in principal amount of the
Outstanding Notes by written notice to the Company and the Trustee, may rescind
and annul such declaration and its consequences if
(a) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(i) all overdue interest on the Notes,
35
(ii) the principal of (and premium, if any, on) any Notes of which
have become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such Notes,
(iii) to the extent that payment of such interest is lawful, interest
upon overdue interest at the rate or rates prescribed therefor in such
Notes, and
(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel (including reasonable legal fees and
expenses).
(b) all Events of Default with respect to the Notes, other than the
non-payment of the principal of the Notes which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any Note when such
interest becomes due and payable and such default continues for a period of 30
days, or
(b) default is made in the payment of the principal of (or premium, if any,
on) any Note at the Maturity thereof;
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Note, the whole amount then due and payable on such Note for
principal (and premium, if any) and interest and, to the extent that payment of
such interest shall be legally enforceable, interest on any overdue principal
(and premium, if any), on any overdue interest, at the rate or rates prescribed
therefor in such Note, 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.
36
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due unpaid, may, in its
discretion, prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon such Note and
collect the monies adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such Note,
wherever situated.
If an Event of Default, of which a Responsible Officer of the Trustee has
actual knowledge, occurs and is continuing, the Trustee may in its discretion
proceed to protect and enforce its rights and the rights of the Holders of the
Notes 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 5.04. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Notes
or the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of any of the Notes shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) 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 Notes 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
(b) to collect and receive any monies 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
37
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 6.07.
Nothing herein contained 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 Notes or
the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of an Holder in any such proceeding.
SECTION 5.05. Trustee May Enforce Claims Without Possession of the Notes.
All rights of action and claims under this Indenture or the Notes may be
prosecuted and enforced by the Trustee without the possession of any of the
Notes 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 Notes in respect of which such judgment has been recovered.
SECTION 5.06. 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 premium,
if any) or interest payments, upon presentation of the Notes 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 6.07;
and
SECOND: To the payment of the amounts then due and unpaid for principal of
(and premium, if any), and interest on, the Notes 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 Notes for
principal (and premium, it any) and interest payments.
38
SECTION 5.07. Limitation on Suits.
No Holder of any Note 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
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Notes;
(b) the Holders of not less than 25% in principal amount of the Outstanding
Notes 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;
(c) such Holder or Holders have offered to the Trustee indemnity,
reasonably satisfactory to the Trustee, against the costs, expenses (including
reasonable legal fees and expenses) and liabilities to be incurred in compliance
with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given to
the Trustee during such 60-day period by the Holders of a majority in principal
amount of all Outstanding Notes,
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 5.08. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Note shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 3.09)
interest on such Note on the Stated Maturity or Maturities expressed in such
Note (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.
39
SECTION 5.09. 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 and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Notes in the last paragraph of Section
3.08, 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 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of the Notes 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 5.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Notes
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, with respect to the Notes, provided that
(a) such direction shall not be in conflict with any rule of law or with
this Indenture, and
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
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SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Notes may on behalf of the Holders of all of the Notes waive any
past default hereunder with respect to the Notes and its consequences, except a
default
(a) in the payment of the principal of (or premium, if any), or interest
on, any Note, or
(b) in respect of a covenant or provision hereof which under Article 8
cannot be modified or amended without the consent of the Holder of each
Outstanding Note affected.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of the Notes by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Notes, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium, if any) or interest
on any Note on or after the Stated Maturity or Maturities expressed in such Note
(or, in the case of redemption, on or after the Redemption Date).
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ARTICLE 6
The Trustee
SECTION 6.01. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default;
(i) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; but in
the case of any such certificates or opinions which by any provision hereof
are specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).
(b) In case an Event of Default of which a Responsible Officer of the
Trustee has actual knowledge, has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(i) this subsection shall not be construed to limit the effect of
subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding Notes
determined as provided in Section 5.12, relating to the time, method and
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place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to the Notes; and
(iv) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or indemnity, reasonably satisfactory to it,
against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 6.02. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect
to the Notes, the Trustee shall transmit by mail to all Holders of the Notes,
notice of such default hereunder actually known to a Responsible Officer of the
Trustee, unless such default shall have been cured or waived; provided that,
except in the case of a default in the payment of the principal of (or premium,
if any) or interest on any Note, the Trustee shall be protected in withholding
such notice if and so long as 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 Notes; and provided, further, that in the case of any default of the
character specified in Section 5.01(d), no such notice to Holders shall be given
until at least 30 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default with respect to the Notes.
SECTION 6.03. Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(a) the Trustee may conclusively rely and shall be fully 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;
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(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,
conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee security or indemnity, reasonably satisfactory to it, against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(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;
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
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(i) the Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Notes and this Indenture; and
(j) the rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other Person employed to act
hereunder.
SECTION 6.04. Not Responsible for Recitals or Issuance of Notes.
The recitals contained herein and in the Notes, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Notes. The Trustee shall not be accountable for the use or application by
the Company of the Notes or the proceeds thereof.
SECTION 6.05. May Hold Notes.
The Trustee, any Paying Agent, or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of the Notes
and, subject to Section 6.08, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, or such other agent.
SECTION 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
SECTION 6.07. Compensation and Reimbursement.
The Company agrees
(a) to pay to the Trustee such compensation as the Company and the Trustee
shall from time to time agree in writing for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
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(b) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable and documented expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents, nominees, custodians and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or bad
faith; and
(c) to indemnify each of the Trustee or any predecessor Trustee and their
agents for, and to hold them harmless against, any and all loss, damage, claims,
liability or expense, including taxes (other than taxes based upon, measured by
or determined by the income of the Trustee), 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 (whether
asserted by the Company, or any Holder or any other Person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent that such loss, damage, claim, liability or
expense is due to its own negligence or bad faith.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Notes upon all property
and funds held or collected by the Trustee pursuant to this Indenture as such,
except funds held in trust for the benefit of Holders of the Notes. When the
Trustee incurs expenses and renders services in connection with an Event of
Default as specified in Section 5.01, the expenses (including the reasonable
charges and expenses of its counsel) and the compensation for the services are
intended to constitute expenses of administration under any applicable Federal
or state bankruptcy, insolvency or other similar law. The obligations of the
Company under this Section shall survive the satisfaction and discharge of this
Indenture.
SECTION 6.08. Corporate Trustee Required Eligibility.
There shall at all times be a Trustee hereunder which shall 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 exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervision or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall
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resign immediately in the manner and with the effect hereinafter specified in
this Article.
SECTION 6.09. 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 6.10.
(b) The Trustee may resign at any time with respect to the Notes by giving
written notice thereof to the Company. If the instrument of acceptance by a
successor Trustee required by Section 6.10 shall not have been delivered to the
Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Notes.
(c) The Trustee may be removed at any time with respect to the Notes by Act
of the Holders of a majority in principal amount of the Outstanding Notes,
delivered to the Trustee and to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of removal, the Trustee being removed may
petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Notes.
(d) If at any time:
(i) the Trustee shall cease to be eligible under Section 6.08 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(ii) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by a Board Resolution, may remove
the Trustee with respect to the Notes, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Note for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect to all of the
Notes and the appointment of a successor Trustee or Trustees.
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(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 Notes, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee or Trustees with respect to the Notes and shall comply with
the applicable requirements of Section 6.10. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Notes 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 6.10, become the successor Trustee with respect to the Notes and to that
extent supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Notes shall have been so appointed by the Company or
the Holders and accepted appointment in the manner required by Section 6.10, any
Holder who has been a bona fide Holder of a Note 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 Notes.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Notes and each appointment of a successor
Trustee by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of the Notes. Each notice shall include the name of the
successor Trustee with respect to the Notes and the address of its Corporate
Trust Office.
SECTION 6.10. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to the Notes, 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.
(b) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and
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confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(c) 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.
(d) The Trustee shall not be liable for the acts or omissions to act of any
successor Trustee.
SECTION 6.11. 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 Notes shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as if
such successor Trustee had itself authenticated such Notes.
SECTION 6.12. 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 Notes), 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).
ARTICLE 7
Concerning The Holders
SECTION 7.01. Evidence of Action Taken by Holders. 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
49
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments are delivered to the Trustee, and, where it is
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 instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and (subject to Sections 6.01 and
6.03 conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Article.
SECTION 7.02. Proof of Execution of Instruments and of Holding of Notes;
Record Date. Subject to Sections 6.01 and 6.03, the execution of any instrument
by a Holder or his or her agent or proxy may be proved in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee or in such
manner as shall be satisfactory to the Trustee. The holding of the Notes shall
be proved by a certificate of the registrar thereof. The Company may set a
record date for purposes of determining the identity of holders of the Notes
entitled to vote or consent to any action referred to in Section 7.01, which
record date may be set at any time or from time to time by notice to the
Trustee, for any date or dates (in the case of any adjournment or
resolicitation) not more than 60 days nor less than five days prior to the
proposed date of such vote or consent, and thereafter, notwithstanding any other
provisions hereof, only holders of the Notes of record on such record date shall
be entitled to so vote or give such consent or to withdraw such vote or consent.
SECTION 7.03. Holders to Be Treated as Owners. The Company, the Trustee and
any agent of the Company or the Trustee may deem and treat the person in whose
name any Note shall be registered as the absolute owner of such Note (whether or
not such Note shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the principal of and, subject to the provisions of this Indenture, interest on
such Note and for all other purposes; and neither the Company or the Trustee nor
any agent of the Company or the Trustee shall be affected by any notice to the
contrary. All such payments so made to any such person, or upon his or her
order, shall be valid, and, to the extent of the sum or sums so paid, effectual
to satisfy and discharge the liability for monies payable upon any such Note.
SECTION 7.04. Notes Owned by the Company Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Notes have concurred in any direction, consent or waiver under this Indenture,
Notes which are owned by the Company or any other obligor on the Notes or by any
person directly or indirectly controlling or controlled by or under direct or
50
indirect common control with the Company or any other obligor on the Notes shall
be disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only
Notes which a Responsible Officer of the Trustee actually knows are so owned
shall be so disregarded. Notes 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 Notes and that
the pledgee is not the Company or any other obligor upon the Notes or any person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company or any other obligor on the Notes. In case of a
dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice. Upon
request of the Trustee and the Company shall each furnish to the Trustee
promptly Officers' Certificates listing and identifying all Notes, if any, known
by the Company to be owned or held by or for the account of any of the above
described persons; and, subject to Sections 6.01 and 6.03, the Trustee shall be
entitled to accept such Officers' Certificate as conclusive evidence of the
facts therein set forth and of the fact that all Notes not listed therein are
Outstanding for the purpose of any such determination.
SECTION 7.05. Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.01, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Notes specified in this Indenture in connection with such action,
any holder of an Note the serial number of which is shown by the evidence to be
included among the serial numbers of the Notes the Holders of which have
consented to such action may, by filing written notice at the Corporate Trust
Office and upon proof of holding as provided in this Article, revoke such action
so far as it concerns such Note. Except as aforesaid, any such action taken by
the Holder of any Note shall be conclusive and binding upon such Holder and upon
all future Holders and owners of such Note and of any Notes issued in exchange
or substitution therefor or on account of registration of transfer thereof,
irrespective of whether or not any notation in regard thereto is made upon any
such Note. Any action taken by the Holders of the percentage in aggregate
principal amount of the Notes specified in this Indenture in connection with
such action shall be conclusively binding upon the Company, the Trustee and the
Holders of all the Notes.
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ARTICLE 8
Supplemental Indentures
SECTION 8.01. 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:
(a) to secure the Notes;
(b) to evidence the assumption by a successor Person of the obligations of
the Company, pursuant to Section 9.10;
(c) to add further covenants for the protection of the Holders of the
Notes;
(d) to cure any ambiguity, or correct any inconsistency herein or in any
supplemental indenture which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture;
(e) to evidence the acceptance of appointment hereunder by a successor
Trustee with respect to the Notes; or
(f) to make any other change that does not adversely affect the interests
of the Holders of the Notes in any material respect.
SECTION 8.02. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of at least a majority in aggregate
principal amount of the Outstanding Notes, by Act of said Holders delivered to
the Company and the Trustee, the Company and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of the
Notes under this Indenture; provided that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Note affected thereby,
(a) change the due date for the payment of the principal of, or any
installment of principal of interest on, any Note,
52
(b) reduce the principal amount of or the rate of interest on or any
installment of interest on any Note,
(c) change the coin or currency in which or the required places at which
any Note or any interest thereon is payable, or
(d) reduce the percentage Notes necessary to modify or amend this Indenture
or for waiver of compliance with certain provisions hereof or for waiver of
certain defaults pursuant to Section 5.13 hereof; provided 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 or
the deletion of this proviso, in accordance with the requirements of Section
6.10.
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 8.03. 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 6.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 8.04. 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 Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby to the extent provided therein.
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ARTICLE 9
Covenants
SECTION 9.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each of the Holders of
the Notes that it will duly and punctually pay the principal of (and premium, if
any) and interest on the Notes in accordance with the terms of the Notes and
this Indenture, and will duly comply with all other terms, agreements and
conditions contained in, or made in the Indenture for the benefit of, the Notes.
SECTION 9.02. Maintenance of Office of Agency.
The Company will maintain in each Place of Payment for the Notes an office
or agency where the Notes may be presented or surrendered for payment, where the
Notes may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, 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 the
Notes for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
SECTION 9.03. Money for Payments on Notes to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to the Notes, it will, on or before each due date of the principal of (and
premium, if any) or interest on any of the Notes, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Persons or
54
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 the Notes, it
will, prior to each due date of the principal of (and premium, if any) or
interest on any of the Notes, deposit with a Paying Agent a sum sufficient to
pay the principal (and premium, if any) or interest so becoming due, such sum to
be held in trust for the benefit of the Persons entitled to such principal,
premium or interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for the Notes 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:
(a) hold all sums held by it for the payment of the principal of (and
premium, if any) or interest on the Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or any other
obligor upon the Notes) in the making of any payment of principal (and premium,
if any) or interest on the Notes; and
(c) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any of the Notes and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company)
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shall be discharged from such trust; and the Holder of such Note 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 9.04. 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, one of the signatories of which shall be the Chief Financial
Officer, Chief Executive Officer or Chief Accounting Officer, stating whether or
not to the best knowledge of the signatures thereto the Company is in default in
the performance and observance of any of the terms, provisions and conditions of
Sections 9.01 to 9.03 (without regard to notice or grace), inclusive, and if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 9.05. Payment of Expenses.
Upon termination of this Indenture or of the Notes or the removal or
resignation of the Trustee pursuant to Section 6.09, the Company shall pay to
the Trustee all amounts accrued and owing pursuant to the terms of this
Indenture to the Trustee to the date of such termination, removal or
resignation.
SECTION 9.06. Financial Statements.
The Company shall provide:
(a) to the Trustee as soon as reasonably available, and in any event within
120 days after the end of each fiscal year a copy of the FERC Form 2 Annual
Report, containing annual financial statements of the Company for such fiscal
year, prepared in accordance with the accounting practices prescribed or
permitted by FERC, which is a comprehensive basis of accounting other than
generally accepted accounting principles, together with a report thereon by an
independent accounting firm of established national reputation. Delivery of such
reports, information and documents to the Trustee is for informational purposes
only and the Trustee's receipt of such shall not constitute constructive notice
of any information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates);
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(b) each Holder a copy of the most current FERC Form 2 Annual Report upon
request by the Holder to the Controller and Chief Accounting Officer of the
Company; and
(c) to any prospective purchaser designated by a Holder information meeting
the requirements of Rule 144A(d)(4) under the Securities Act.
SECTION 9.07. Limitation on Liens.
The Company will not, nor will it permit any Subsidiary to, issue, assume,
or guarantee any Indebtedness secured by a mortgage, pledge, lien, security
interest, or encumbrance ("Mortgage"), upon any property of the Company or any
Subsidiary without effectively providing that the Notes shall be equally and
ratably secured with such Indebtedness, except that the foregoing shall not
prevent the Company or any Subsidiary from issuing, assuming or guaranteeing
Indebtedness of the following character:
(1) any purchase money mortgage;
(2) any preexisting mortgages on any property acquired or constructed
by the Company or a Subsidiary and mortgages created within one year after
completion of such acquisition or construction;
(3) any mortgages created on any contract for the sale of products or
services related to the operation or use of any property acquired or
constructed within one year after completion of such acquisition or
construction;
(4) any mortgages on property of a Subsidiary existing at the time it
became a Subsidiary of the Company or existing on property at the time
acquired by the Company;
(5) any mortgages on oil or gas properties owned by the Company or a
Subsidiary;
(6) any mortgages that extend, or renew or replace in whole or in part
a mortgage referred to herein; and
(7) any other mortgages in an aggregate amount which, at the time of
incurrence and together with the Attributable Debt in respect of sale and
lease-back transactions permitted by Section 9.08, do not exceed 5% of
Consolidated Net Tangible Assets.
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SECTION 9.08. Limitation on Sale and Lease-back Transactions.
The Company will not, nor will it permit any Subsidiary to, sell and lease
back for more than three years any Principal Property acquired or placed into
service more than 180 days before such lease arrangement, unless
(a) the lessee would be entitled to incur Indebtedness secured by a
mortgage on such Principal Property in a principal amount equivalent to the
Attributable Debt in respect of such arrangement without equally and ratably
securing the Notes; or
(b) the Company retires Funded Indebtedness or causes Funded Indebtedness
to be retired within 90 days of the effective date of such sale and lease-back
transaction equal to the net proceeds of such sale.
This limitation does not apply to sale and lease-back transactions (i)
relating to industrial development or pollution control financing or (ii)
involving only the Company and any Subsidiary or Subsidiaries, nor are such
transactions included in any computation of Attributable Debt.
Notwithstanding the foregoing, the Company and its Subsidiaries may enter
into sale and lease-back transactions so long as the total consolidated
Attributable Debt in respect of such transactions does not exceed 5% of
Consolidated Net Tangible Assets.
SECTION 9.09. Consolidation, Merger, Conveyance of Assets.
The Company shall not consolidate with or merge into any other entity or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, unless:
(a) the corporation, limited liability company, limited partnership, joint
stock company, or trust formed by such consolidation or into which the Company
is merged or the Person which acquires such assets shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the Company's obligations hereunder and under the
Notes;
(b) immediately after giving effect to such transaction in subparagraph (a)
no Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have happened and be continuing; and
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(c) the Company has delivered to the Trustee an Officer's Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and such supplemental indenture comply with this Article and
that all conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 9.10. Successor Corporation Substituted.
Upon any consolidation of the Company with, or merger of the Company into,
any other corporation or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
9.09, the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein, and thereafter, except in the
case of a lease, the predecessor corporation shall be relieved of all
obligations and covenants under this Indenture and the Notes.
SECTION 9.11. Further Assurances. From time to time whenever reasonably
demanded by the Trustee, the Company will make, execute and deliver or cause to
be made, executed and delivered any and all such further and other instruments
and assurances as may be reasonably necessary or proper to carry out the
intention or facilitate the performance of the terms of this Indenture.
ARTICLE 10
Redemption of Notes
SECTION 10.01. Optional Redemption. The Notes will be redeemable as a whole
or in part, at the option of the Company, at any time at a redemption price
equal to the greater of (i) 100% of their Outstanding principal amount or (ii)
the sum of the present values of the remaining scheduled payments of principal
and interest thereon, discounted to the redemption date on a semiannual basis
(assuming a 360-day year consisting twelve 30-day months) at the Treasury Rate
plus 15 basis points, plus in the case of each of clause (i) and (ii) accrued
interest thereon to the date of redemption.
SECTION 10.02. Selection by Trustee of Notes to Be Redeemed.
If less than all the Notes are to be redeemed, the particular Notes to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
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the Trustee, from the Outstanding Notes not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for the Notes or any integral multiple thereof) of the principal
amount of the Notes of a denomination larger than the minimum authorized
denomination; provided, that if at the time of redemption such Notes are
registered as a Global Note, DTC shall determine, in accordance with its
procedures, the principal amount of such Notes held by each Beneficial Owner to
be redeemed.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in case of any Notes 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 Notes shall relate, in the case of
any Notes redeemed or to be redeemed only in part, to the portion of the
principal amount of such Notes which has been or is to be redeemed.
SECTION 10.03. 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
the Trustee and to each Holder of the Notes to be redeemed.
All notices of redemption shall state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) if less than all the Outstanding Notes are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts)
of the particular Notes to be redeemed;
(d) that on the Redemption Date the Redemption Price will become due and
payable upon each such Note to be redeemed and that interest thereon will cease
to accrue on and after said date;
(e) the place or places where such Notes are to be surrendered for payment
of the Redemption Price; and
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(f) the CUSIP number, if any.
Notice of redemption of Notes 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.
SECTION 10.04. Deposit of Redemption Price.
Prior to 10:00 a.m., New York City time, on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 9.03) 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 Notes which are to be redeemed on that date.
SECTION 10.05. Notes Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Notes 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 Notes
shall cease to bear interest. Upon surrender of any such Note for redemption in
accordance with said notice, such Note shall be paid by the Company at the
Redemption Price, together with accrued interest to the Redemption Date;
provided that installments of interest whose Stated Maturity is on or prior to
the Redemption Date shall be payable to the Holders of such Notes, registered as
such at the close of business on the relevant Record Dates.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in such
Note.
The Redemption Price shall be paid prior to 12:00 noon, New York City time,
on the date of such redemption or such earlier time as the Company determines,
provided that the Company shall deposit with the Trustee an amount sufficient to
pay the Redemption Price by 10:00 a.m., New York City time, on the date such
Redemption Price is to be paid.
SECTION 10.06. Notes Redeemed in Part.
Any Note which is to be redeemed only in part shall be surrendered at a
Place of Payment (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
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Company 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 Note without service charge, a new Note or Note,
of like tenor and 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 Note so surrendered.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
XXXXXXXX GAS PIPELINES CENTRAL, INC.
By: /s/ Xxxx Xxxxxxxx
--------------------------------
Name: L. Xxxx Xxxxxxxx
Title: Chief Accounting Officer
THE BANK OF NEW YORK
By: /s/ XXXX X. XXXXX
--------------------------------
Name: XXXX X. XXXXX
Title: VICE PRESIDENT
