EXHIBIT 4.1
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KEY ENERGY SERVICES, INC., AS ISSUER
AND
THE GUARANTORS NAMED HEREIN, AS GUARANTORS
AND
U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE
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INDENTURE
DATED AS OF
FEBRUARY 27, 2002
DEBT SECURITIES
(SENIOR GUARANTEED DEBT)
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Key Energy Services, Inc.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of February 22, 2002
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Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
- ----------- -------------
Section 310 (a)(1)......................................... 609
(a)(2)......................................... 609
(a)(3)......................................... Not Applicable
(a)(4)......................................... Not Applicable
(b)............................................ 608, 610
Section 311 (a)............................................ 613
(b)............................................ 613
(c)............................................ Not Applicable
Section 312 (a)............................................ 701, 702(a)
(b)............................................ 702(b)
(c)............................................ 702(c)
Section 313 (a)............................................ 703(a)
(b)............................................ 703(b)
(c)............................................ 703(c)
(d)............................................ 703(d)
Section 314 (a)............................................ 704, 1005
(b)............................................ Not Applicable
(c)(1)......................................... 103
(c)(2)......................................... 103
(c)(3)......................................... Not Applicable
(d)............................................ Not Applicable
(e)............................................ 103
Section 315 (a)............................................ 601(a)
(b)............................................ 602
(c)............................................ 601(b)
(d)............................................ 601(c)
(d)(1)......................................... 601(a)(1)
(d)(2)......................................... 601(c)(2)
(d)(3)......................................... 601(c)(3)
(e)............................................ 513
Section 316 (a)(1)(A)...................................... 502, 511
(a)(1)(B)...................................... 512
(a)(2)......................................... Not Applicable
(a)(last sentence)............................. 101
(b)............................................ 508
Section 317 (a)(1)......................................... 503
(a)(2)......................................... 504
(b)............................................ 1003
Section 318 (a)............................................ 108
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
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RECITALS OF THE COMPANY ......................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions ....................................................1
Act .....................................................................2
Additional Amounts ......................................................2
Affiliate ...............................................................2
Agent Members ...........................................................2
Authenticating Agent ....................................................2
Authorized Newspaper ....................................................2
Board of Directors ......................................................3
Board Resolution ........................................................3
Business Day ............................................................3
Capital Stock ...........................................................3
Commission ..............................................................3
Company .................................................................3
"Company Request" and "Company Order" ...................................3
Conversion Event ........................................................3
Corporate Trust Office ..................................................3
Defaulted Interest ......................................................3
Depositary ..............................................................3
Dollar ..................................................................4
Event of Default ........................................................4
Exchange Rate ...........................................................4
Guarantors ..............................................................4
Holder ..................................................................4
Indenture ...............................................................4
Interest ................................................................4
Interest Payment Date ...................................................4
Judgment Currency .......................................................4
Lien ....................................................................4
Maturity ................................................................4
Officers' Certificate ...................................................5
Opinion of Counsel ......................................................5
Original Issue Discount Security ........................................5
Outstanding .............................................................5
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Paying Agent ............................................................6
Person ..................................................................6
Place of Payment ........................................................6
Predecessor Security ....................................................6
Redemption Date .........................................................6
Redemption Price ........................................................6
Regular Record Date .....................................................6
Required Currency .......................................................6
Responsible Officer .....................................................7
Securities ..............................................................7
Security Custodian ......................................................7
Security Register .......................................................7
Senior Guarantee ........................................................7
Special Record Date .....................................................7
Stated Maturity .........................................................7
Subsidiary ..............................................................7
Trustee .................................................................7
Trust Indenture Act .....................................................7
United States ...........................................................8
United States Alien .....................................................8
U.S. Government Obligations .............................................8
Vice President ..........................................................8
Wholly Owned Subsidiary .................................................8
Yield to Maturity .......................................................8
SECTION 102. Incorporation by Reference of Trust Indenture Act ..............8
SECTION 103. Compliance Certificates and Opinions ...........................9
SECTION 104. Form of Documents Delivered to Trustee .........................9
SECTION 105. Acts of Holders; Record Dates .................................10
SECTION 106. Notices, Etc., to Trustee and Company .........................11
SECTION 107. Notice to Holders; Waiver .....................................11
SECTION 108. Conflict With Trust Indenture Act .............................12
SECTION 109. Effect of Headings and Table of Contents ......................12
SECTION 110. Successors and Assigns ........................................12
SECTION 111. Separability Clause ...........................................12
SECTION 112. Benefits of Indenture .........................................12
SECTION 113. Governing Law .................................................13
SECTION 114. Legal Holidays ................................................13
SECTION 115. Corporate Obligation ..........................................13
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ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally ...............................................13
SECTION 202. Form of Trustee's Certificate of Authentication ...............14
SECTION 203. Form of Senior Guarantee.......................................14
SECTION 204. Securities in Global Form .....................................17
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series ..........................20
SECTION 302. Denominations .................................................22
SECTION 303. Execution, Authentication, Delivery and Dating ................23
SECTION 304. Temporary Securities ..........................................24
SECTION 305. Registration, Registration of Transfer and Exchange ...........25
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities ..............26
SECTION 307. Payment of Interest; Interest Rights Preserved ................27
SECTION 308. Persons Deemed Owners .........................................28
SECTION 309. Cancellation ..................................................28
SECTION 310. Computation of Interest .......................................29
SECTION 311. CUSIP Numbers .................................................29
ARTICLE FOUR
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 401. Satisfaction and Discharge of Indenture .......................29
SECTION 402. Application of Trust Money ....................................31
SECTION 403. Discharge of Liability on Securities of Any Series ............31
SECTION 404. Applicability of Defeasance Provisions; Company's
Option to Effect Defeasance or Covenant Defeasance ......32
SECTION 405. Defeasance and Discharge ......................................32
SECTION 406. Covenant Defeasance ...........................................33
SECTION 407. Conditions to Defeasance or Covenant Defeasance ...............33
SECTION 408. Deposited Money and Government Obligations
to be Held in Trust .....................................35
SECTION 409. Repayment to Company ..........................................35
SECTION 410. Indemnity for Government Obligations ..........................35
SECTION 411. Reinstatement .................................................35
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default .............................................36
SECTION 502. Acceleration of Maturity; Rescission and Annulment ............38
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee ..................................39
SECTION 504. Trustee May File Proofs of Claim ..............................40
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons ...................................41
SECTION 506. Application of Money Collected ................................41
SECTION 507. Limitation on Suits ...........................................42
SECTION 508. Unconditional Right of Holders to Receive
Principal Premium and Interest ..........................42
SECTION 509. Restoration of Rights and Remedies ...........................42
SECTION 510. Rights and Remedies Cumulative ................................43
SECTION 511. Delay or Omission Not Waiver ..................................43
SECTION 512. Control by Holders ............................................43
SECTION 513. Waiver of Past Defaults .......................................44
SECTION 514. Undertaking for Costs .........................................44
SECTION 515. Waiver of Stay or Extension Laws .............................44
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities ...........................45
SECTION 602. Notice of Defaults ............................................46
SECTION 603. Certain Rights of Trustee .....................................46
SECTION 604. Not Responsible for Recitals or Issuance of Securities ........47
SECTION 605. May Hold Securities ...........................................47
SECTION 606. Money Held in Trust ...........................................48
SECTION 607. Compensation and Reimbursement ................................48
SECTION 608. Disqualification; Conflicting Interests .......................48
SECTION 609. Corporate Trustee Required; Eligibility .......................49
SECTION 610. Resignation and Removal; Appointment of Successor .............49
SECTION 611. Acceptance of Appointment by Successor ........................51
SECTION 612. Merger, Conversion, Consolidation or Succession to Business ...52
SECTION 613. Preferential Collection of Claims Against Company .............52
SECTION 614. Appointment of Authenticating Agent ...........................52
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ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders .....54
SECTION 702. Preservation of Information; Communications to Holders ........55
SECTION 703. Reports by Trustee .............................................55
SECTION 704. Reports by Company and the Guarantors ..........................56
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms ...........56
SECTION 802. Successor Person Substituted ...................................57
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders .............57
SECTION 902. Supplemental Indentures With Consent of Holders ................58
SECTION 903. Execution of Supplemental Indentures ...........................59
SECTION 904. Effect of Supplemental Indentures ..............................60
SECTION 905. Conformity With Trust Indenture Act ............................60
SECTION 906. Reference in Securities to Supplemental Indentures .............60
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest ....................60
SECTION 1002. Maintenance of Office or Agency ...............................60
SECTION 1003. Money for Securities Payments to be Held in Trust .............61
SECTION 1004. Existence .....................................................62
SECTION 1005. Statement by Officers as to Default ...........................62
SECTION 1006. Waiver of Certain Covenants ...................................63
SECTION 1007. Additional Amounts ............................................63
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article ......................................64
SECTION 1102. Election to Redeem; Notice to Trustee .........................64
SECTION 1103. Selection by Trustee of Securities to be Redeemed .............64
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SECTION 1104. Notice of Redemption .........................................65
SECTION 1105. Deposit of Redemption Price ..................................65
SECTION 1106. Securities Payable on Redemption Date ........................66
SECTION 1107. Securities Redeemed in Part ..................................66
SECTION 1108. Purchase of Securities .......................................66
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article .....................................67
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities ........67
SECTION 1203. Redemption of Securities for Sinking Fund ....................67
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called ....................68
SECTION 1302. Call, Notice and Place of Meetings ...........................68
SECTION 1303. Persons Entitled to Vote at Meetings .........................68
SECTION 1304. Quorum; Action ...............................................69
SECTION 1305. Determination of Voting Rights; Conduct and
Adjournment of Meetings .................................69
SECTION 1306. Counting Votes and Recording Action of Meetings ..............70
ARTICLE FOURTEEN
SENIOR GUARANTEE
SECTION 1401. Guarantee ....................................................71
SECTION 1402. Limitation on Guarantor Liability ............................72
SECTION 1403. Execution and Delivery of Senior Guarantee ...................72
SECTION 1404. Releases Following Sale of Assets ............................73
vi
INDENTURE, dated as of February 27, 2002 between KEY ENERGY
SERVICES, INC., a corporation duly organized and existing under the laws of
the State of Maryland (herein called the "Company"), having its principal
office at Xxx Xxxxx Xxxxxx, 00xx Xxxxx, Xxxx Xxxxxxxxx, Xxx Xxxxxx 00000,
each of the Guarantors (as hereinafter defined), and U.S. Bank National
Association, a national banking association, as Trustee (herein called the
"Trustee"), the office of the Trustee at which at the date hereof its
corporate trust business is principally administered being 000 Xxxx Xxxxx
Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures, notes
or other evidences of indebtedness (herein called the "Securities"), to be
issued in one or more series as in this Indenture provided.
The Company, directly or indirectly, owns beneficially and of record
100% of the Capital Stock or other ownership interests, as the case may be, of
each Guarantor; the Company and Guarantors are members of the same consolidated
group of companies engaged in related business and the Guarantors will derive
direct and indirect economic benefit from the issuance of the Securities.
This Indenture is subject to the provisions of the Trust Indenture Act
and the rules and regulations of the Commission promulgated thereunder that are
required to be part of this Indenture and, to the extent applicable, shall be
governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company and each of the Guarantors, in accordance with its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
1
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with respect
to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States at the
date of such computation; and
(3) 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 Six, are defined in Section
102.
"Act," when used with respect to any Holder, has the meaning specified
in Section 105.
"Additional Amounts" means any additional amounts that are required by
the express terms of a Security or by or pursuant to a Board Resolution, under
circumstances specified therein or pursuant thereto, to be paid by the Company
with respect to certain taxes, assessments or other governmental charges imposed
on certain Holders and that are owing to such Holders.
"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.
"Agent Members" has the meaning specified in Section 203.
"Authenticating Agent" means any Person, which may include the
Company, authorized by the Trustee to act on behalf of the Trustee pursuant to
Section 614 to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
2
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, rights to purchase (other than convertible or exchangeable
indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that Person.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board,
its President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Controller, an Assistant Controller, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Conversion Event" has the meaning specified in Section 501.
"Corporate Trust Office" means the principal office of the Trustee
in St. Xxxx, Minnesota at which at any particular time its corporate trust
business shall be principally administered, which office at the date hereof
is that indicated in the introductory paragraph of this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in global form, the Person designated as
Depositary by the Company pursuant to Section 301 with respect to the Securities
of such series until a successor Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder, and if at any
time there is
3
more than one such Person, "Depositary" as used with respect to the Securities
of any series shall mean the Depositary with respect to the Securities of that
series.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate" has the meaning specified in Section 501.
"Guarantors" means each of the Subsidiaries of Company listed on
Schedule I attached hereto and by this reference made a part hereof.
"Holder," when used with respect to any Security, means the Person in
whose name the Security is registered in the Security Register.
"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
and shall include the terms of particular series of Securities established as
contemplated by Section 301 and the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 506.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
4
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, the
Controller, the Secretary or an Assistant Treasurer, Assistant Controller or
Assistant Secretary, of the Company, and delivered to the Trustee, which
certificate shall comply with Section 103 hereof.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company, rendered, if applicable, in
accordance with Section 314(c) of the Trust Indenture Act, which opinion shall
comply with Section 103 hereof.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities of a series,
means, as of the date of determination, all Securities of such series
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore irrevocably deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and segregated
in trust by the Company (if the Company shall act as its own Paying Agent)
for the Holders of such Securities; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been
made; and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether a
quorum is present at a meeting of Holders of Securities, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the principal amount thereof that would
be due and payable as of the date of such determination if the Maturity thereof
were accelerated on such date pursuant to Section 502, (b) the principal amount
of a Security denominated in a foreign currency shall be the U.S. dollar
equivalent, determined by the Company on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount
Security, the U.S. dollar equivalent, determined on the date of original
issuance of such Security, of the amount determined as provided in (a) above),
of such Security and (c) Securities owned by the Company or any other obligor
upon
5
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person, which may include the Company,
authorized by the Company to pay the principal of (and premium, if any) and
interest on or Additional Amounts with respect to any one or more series of
Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof, or any other entity of any kind.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on and any Additional Amounts with respect to the Securities of
that series are payable as specified in accordance with Section 301 subject to
the provisions of Section 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to the terms
of the Security and this Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to the terms of
the Security and this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301, or, if not so specified, the last day of the
calendar month preceding such Interest Payment Date if such Interest Payment
Date is the fifteenth day of the calendar month or the fifteenth day of the
calendar month preceding such Interest Payment Date if such Interest Payment
Date is the first day of a calendar month, whether or not such day shall be a
Business Day.
"Required Currency" has the meaning specified in Section 506.
6
"Responsible Officer," when used with respect to the Trustee, means
the chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, any trust
officer or assistant trust officer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Custodian" means, with respect to Securities of a series
issued in global form, the Trustee for Securities of such series, acting in its
capacity as custodian with respect to the Securities of such series, or any
successor entity thereto, or any other Person designated by such Trustee, or
such seccessor entity, to act as custodian with respect tothe Securities of such
series.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Guarantee" means the Guarantee by each Guarantor of the
Company's payment obligations under this Indenture and on the Securities,
executed pursuant to the provisions of this Indenture.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905.
7
"United States" means the United States of America (including the
states and the District of Columbia) and its "possessions," which include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"United States Alien" means any Person who, for United States federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien or foreign fiduciary of an estate or trust, or a foreign
partnership.
"U.S. Government Obligations" has the meaning specified in Section
401.
"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."
"Wholly Owned Subsidiary" means a corporation all the outstanding
voting stock (other than any directors' qualifying shares) of which is owned,
directly or indirectly, by the Company or by one or more other Wholly Owned
Subsidiaries, or by the Company and one or more other Wholly Owned Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Yield to Maturity," when used with respect to any Original Issue
Discount Security, means the yield to maturity, if any, set forth on the face
thereof.
SECTION 102. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this
Indenture. The following Trust Indenture Act terms used in this Indenture have
the following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United
States Code.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
8
All terms used in this Indenture that are defined by the Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or
defined by Commission rule under the Trust Indenture Act and not otherwise
defined herein have the meanings assigned to them therein.
SECTION 103. Compliance Certificates and Opinions.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any (including
any covenants the compliance with which constitutes a condition precedent
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any (including any covenants the
compliance with which constitutes a condition precedent) have been complied
with, except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each Person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such Person, such Person
has made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such Person,
such condition or covenant has been complied with.
SECTION 104. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
9
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 105. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record thereof or
both are delivered to the Trustee and, where it is hereby expressly required, to
the Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments and so voting at any
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or the holding of any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1306.
The Company may set in advance a record date for purposes of
determining the identity of Holders of Securities entitled to vote or consent to
any action by vote or consent authorized or permitted under this Indenture. If a
record date is fixed, those Persons who were Holders of Outstanding Securities
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled with respect to such Securities to take such action by vote or
consent or to revoke any vote or consent previously given, whether or not such
Persons continue to be Holders after such record date. Promptly after any record
date is set pursuant to this paragraph, the Company, at its own expense, shall
cause notice thereof to be given to the Trustee in writing in the manner
provided in Section 106 and to the relevant Holders as set forth in Section 107.
(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
10
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities held by any
Person, and the date of holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security. Any Holder or subsequent Holder may revoke the request, demand,
authorization, direction, notice, consent or other Act as to his Security or
portion of his Security; provided, however, that such revocation shall be
effective only if the Trustee receives the notice of revocation before the date
the Act becomes effective.
SECTION 106. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company, Attention: Corporate
Secretary.
SECTION 107. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of Securities of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder as it appears
in the Security Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice.
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 to
Holders of Securities by mail, then such
11
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder. In any case in which
notice to Holders of Securities is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder of
a Security, shall affect the sufficiency of such notice with respect to other
Holders of Securities.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 108. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision of the Trust Indenture Act or such other provision
hereof which is required to be included by any provision of the Trust Indenture
Act shall control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act which may be so modified or excluded, the
former provision shall be deemed to apply to this Indenture as so modified or to
be excluded.
SECTION 109. 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 110. 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 111. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 112. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, any Authenticating Agent, Paying Agent, Security Registrar, Security
Custodian and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
12
SECTION 113. Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York, but without giving effect
to applicable principles of conflicts of law to the extent the application of
the laws of another jurisdiction would be required thereby.
SECTION 114. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture, the Securities or
the Senior Guarantees) payment of principal and interest (and premium and
Additional Amounts, 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 with respect to such payment for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 115. Corporate Obligation.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, stockholder, officer, director or
employee of the Company, the Guarantors, or the Trustee or of any predecessor or
successor of the Company, the Guarantors, or the Trustee with respect to the
Company's obligations on the Securities, the obligations of the Guarantors on
the Senior Guarantees, or the obligations of the Company, the Guarantors, or the
Trustee under this Indenture or any certificate or other writing delivered in
connection herewith.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities and the Senior Guarantees to be endorsed thereon of
each series shall be in fully registered form and in substantially such form or
forms (including temporary or permanent global form) as shall be established by
or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities or Senior Guarantees to be endorsed thereon,
as the case may be, as evidenced by their execution of the Securities or Senior
Guarantees to be endorsed thereon, as the case may be. If temporary Securities
and Senior Guarantees of any series are issued in global form as permitted by
Section 304, the form thereof shall be established as provided in the preceding
sentence. A copy of the Board Resolution establishing
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the form or forms of Securities and Senior Guarantees of any series (or any such
temporary global Security) shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities (or any such temporary global Security).
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution thereof.
SECTION 202. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
"This is one of the Securities with Senior Guarantees of the series
designated therein referred to in the within-mentioned Indenture.
U.S. Bank National Association
---------------------------------
as Trustee
By
---------------------------------
Authorized Signatory."
SECTION 203. Form of Senior Guarantee.
"SENIOR GUARANTEE
For value received, each of the Guarantors named (or deemed herein to
be named) below hereby jointly and severally unconditionally guarantees, on a
senior basis to the Holder of the Security upon which this Senior Guarantee is
endorsed, and to the Trustee on behalf of such Holder, the due and punctual
payment of the principal of (and premium, if any) and interest on such Security
when and as the same shall become due and payable, whether at the Stated
Maturity, by acceleration, call for redemption, purchase or otherwise, according
to the terms thereof and of the Indenture referred to therein. In case of the
failure of the Company punctually to make any such payment, each of the
Guarantors hereby jointly and severally agrees to cause such payment to be made
punctually when and as the same shall become due and payable, whether at the
Stated Maturity or by acceleration, call for redemption, purchase or otherwise,
and as if such payment were made by the Company.
Each of the Guarantors hereby jointly and severally agrees that its
obligations hereunder shall be unconditional, irrespective of the validity,
regularity or enforceability of such Security or the Indenture, the absence of
any action to enforce the same, any creation, exchange, release or
non-perfection of any Lien on any collateral for, or any release or amendment or
waiver of any term of any other guarantee of, or any consent to departure from
any requirement of any other guarantee of, all or of any of the Securities, the
election by the Trustee or any of the Holders in any
14
proceeding under Chapter 11 of the Bankruptcy Code of the application of Section
1111(b)(2) of the Bankruptcy Code, any borrowing or grant of a security interest
by the Company, as debtor-in- possession, under Section 364 of the Bankruptcy
Code, the disallowance, under Section 502 of the Bankruptcy Code, of all or any
portion of the claims of the Trustee or any of the Holders for payment of any of
the Securities, any waiver or consent by the Holder of such Security or by the
Trustee or either of them with respect to any provisions thereof or of the
Indenture, the obtaining of any judgment against the Company or any action to
enforce the same or any other circumstances which might otherwise constitute a
legal or equitable discharge or defense of a Guarantor. Each of the Guarantors
hereby waives the benefits of diligence, presentment, demand of payment, any
requirement that the Trustee or any of the Holders protect, secure, perfect or
insure any security interest in or other Lien on any property subject thereto or
exhaust any right or take any action against the Company or any other Person or
any collateral, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest or notice with respect to such Security or the indebtedness
evidenced thereby and all demands whatsoever, and covenants that this Senior
Guarantee will not be discharged except by complete performance of the
obligations contained in such Security and in this Senior Guarantee. Each of the
Guarantors hereby agrees that, in the event of a default in payment of principal
(or premium, if any) or interest on such Security, whether at their Stated
Maturity, by acceleration, call for redemption, purchase or otherwise, legal
proceedings may be instituted by the Trustee on behalf of, or by, the Holder of
such Security, subject to the terms and conditions set forth in the Indenture,
directly against each of the Guarantors to enforce this Senior Guarantee without
first proceeding against the Company. Each Guarantor agrees that if, after the
occurrence and during the continuance of an Event of Default, the Trustee or any
of the Holders are prevented by applicable law from exercising their respective
rights to accelerate the maturity of the Securities, to collect interest on the
Securities, or to enforce or exercise any other right or remedy with respect to
the Securities, such Guarantor agrees to pay to the Trustee for the accounts of
the Holders, upon demand therefor, the amount that would otherwise have been due
and payable had such rights and remedies been permitted to be exercised by the
Trustee or any of the Holders.
No reference herein to the Indenture and no provision of this Senior
Guarantee or of the Indenture shall alter or impair the Senior Guarantee of any
Guarantor, which is absolute and unconditional, of the due and punctual payment
of the principal (and premium, if any) and interest on the Security upon which
this Senior Guarantee is endorsed.
Each Guarantor shall be subrogated to all rights of the Holder of such
Security against the Company in respect of any amounts paid by such Guarantor on
account of such Security pursuant to the provisions of its Senior Guarantee or
the Indenture; provided, however, that such Guarantor shall not be entitled to
enforce or to receive any payments arising out of, or based upon, such right of
subrogation until the principal of (and premium, if any) and interest on this
Security and all other Securities issued under the Indenture shall have been
paid in full.
This Senior Guarantee shall remain in full force and effect and
continue to be effective should any petition be filed by or against the Company
for liquidation or reorganization, should the Company become insolvent or make
any assignment for the benefit of creditors or should
15
a receiver or trustee be appointed for all or any significant part of the
Company's assets, and shall, to the fullest extent permitted by law, continue to
be effective or be reinstated, as the case may be, if at any time payment and
performance of the Securities is, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by any obligee on
the Securities, whether as a "voidable preference," "fraudulent transfer" or
otherwise, all as though such payment or performance had not been made. In the
event that any payment, or any part thereof, is rescinded, reduced, restored or
returned, the Securities shall, to the fullest extent permitted by law, be
reinstated and deemed reduced only by such amount paid and not so rescinded,
reduced, restored or returned.
The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under this Senior Guarantee.
The Guarantors or any particular Guarantor shall be released from this
Senior Guarantee upon the terms and subject to certain conditions provided in
the Indenture.
By delivery of a supplemental indenture to the Trustee in accordance
with the terms of the Indenture, each Person that becomes a Guarantor after the
date of the Indenture will be deemed to have executed and delivered this Senior
Guarantee for the benefit of the Holder of the Security upon which this Senior
Guarantee is endorsed, with the same effect as if such Guarantor were named
below and had executed and delivered this Senior Guarantee.
All terms used in this Senior Guarantee which are defined in the
Indenture referred to in the Security upon which this Senior Guarantee is
endorsed shall have the meanings assigned to them in such Indenture.
This Senior Guarantee shall not be valid or obligatory for any purpose
until the certificate of authentication on the Security upon which this Senior
Guarantee is endorsed shall have been executed by the Trustee under the
Indenture by manual signature.
Reference is made to Article Fourteen of the Indenture for further
provisions with respect to this Senior Guarantee.
THIS SENIOR GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, each of the Guarantors has caused this Senior
Guarantee to be duly executed.
Each of the Guarantors Listed on Schedule I to the
Indenture, as Guarantor
By: "
---------------------------------------------
16
SECTION 204. Securities in Global Form.
If Securities of a series are issuable in global form, as contemplated
by Section 301, then, notwithstanding clause (10) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount,
or any increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such Person or Persons as shall be specified in such Security or in a Company
Order to be delivered to the Trustee pursuant to Section 303 or Section 304.
Subject to the provisions of Section 303 and, if applicable, Section 304, the
Trustee shall deliver and redeliver any Security in permanent global form in the
manner and upon instructions given by the Person or Persons specified in such
Security or in the applicable Company Order. With respect to the Securities of
any series that are represented by a Security in global form, the Company
authorizes the execution and delivery by the Trustee of a letter of
representations or other similar agreement or instrument in the form customarily
provided for by the Depositary appointed with respect to such global Security.
Any Security in global form may be deposited with the Depositary or its nominee,
or may remain in the custody of the Security Custodian therefor pursuant to a
FAST Balance Certificate Agreement or similar agreement between the Trustee and
the Depositary. If a Company Order pursuant to Section 303 or 304 has been, or
simultaneously is, delivered, any instructions by the Company with respect to
endorsement or delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 103 and need not be accompanied by an
Opinion of Counsel.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Security issued in
global form held on their behalf by the Depositary, or the Security Custodian as
its custodian, or under such global Security, and the Depositary may be treated
by the Company, the Security Custodian and any agent of the Company or the
Trustee as the absolute owner of such global Security for all purposes
whatsoever. Notwithstanding the foregoing, (i) the registered holder of a
Security of any series issued in global form may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action that a Holder of such series
is entitled to take under this Indenture or the Securities of such series and
(ii) nothing herein shall prevent the Company, the Security Custodian or any
agent of the Company or the Security Custodian, from giving effect to any
written certification, proxy or other authorization furnished by the Depositary
or shall impair, as between the Depositary and its Agent Members, the operation
of customary practices governing the exercise of the rights of a beneficial
owner of any Security.
Notwithstanding Section 305, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the beneficial owners of interests in a
permanent global Security are entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301, then without
17
unnecessary delay but in any event not later than the earliest date on which
such interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities of that series in an aggregate principal amount equal to
the principal amount of such permanent global Security, executed by the Company.
On or after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered from time to time in accordance
with instructions given to the Trustee and the Depositary (which instructions
shall be in writing but need not comply with Section 103 or be accompanied by an
Opinion of Counsel) by the Depositary or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or in part, for
definitive Securities of the same series without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such permanent global
Security, a like aggregate principal amount of other definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such permanent global Security to be exchanged; provided, however, that no such
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities of that series is to be redeemed and ending
on the relevant Redemption Date. Promptly following any such exchange in part,
such permanent global Security marked to evidence the partial exchange shall be
returned by the Trustee to the Depositary or such other depositary referred to
above in accordance with the instructions of the Company referred to above. If a
definitive Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such Security,
but will be payable on such Interest Payment Date or proposed for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the provisions
of this Indenture.
Notwithstanding Section 305, except as otherwise specified as
contemplated by Section 301, transfers of a Security issued in global form shall
be limited to transfers of such global Security in whole, but not in part, to
the Depositary, its successors or their respective nominees. Interests of
beneficial owners in a Security issued in global form may be transferred in
accordance with the rules and procedures of the Depositary. Securities of any
series shall be transferred to all beneficial owners of a global Security of
such series in exchange for their beneficial interests in that global Security
if, and only if, either (1) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for the global Security of such
series and a successor Depositary is not appointed by the Company within 90 days
of such notice, (2) an Event of Default has occurred with respect to such series
and is continuing and the Security Registrar has received a request from the
Depositary or the Trustee to issue Securities of such series in lieu of all or a
portion of that global Security (in which case the Company shall deliver
Securities of such series within 30 days of such request) or (3) the Company
determines not to have the Securities of such series represented by a global
Security.
18
In connection with any transfer of a portion of the beneficial
interest in a global Security of any series to beneficial owners pursuant to
this Section 203, the Security Registrar shall reflect on its books and records
the date and a decrease in the principal amount of the global Security of that
series in an amount equal to the principal amount of the beneficial interest in
the global Security of that series to be transferred, and the Company shall
execute, and the Trustee upon receipt of a Company Order for the authentication
and delivery of Securities of that series shall authenticate and deliver, one or
more Securities of the same series of like tenor and amount.
In connection with the transfer of all the beneficial interests in a
global Security of any series to beneficial owners pursuant to this Section 203,
the global Security shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall authenticate
and deliver, to each beneficial owner identified by the Depositary in exchange
for its beneficial interest in the global Security, an equal aggregate principal
amount of Securities of that series of authorized denominations.
Neither the Company nor the Trustee will have any responsibility or
liability for any aspect of the records relating to, or payments made on account
of, Securities of any series by the Depositary, or for maintaining, supervising
or reviewing any records of the Depositary relating to such Securities. Neither
the Company nor the Trustee shall be liable for any delay by the related global
Security Holder or the Depositary in identifying the beneficial owners, and each
such Person may conclusively rely on, and shall be protected in relying on,
instructions from such global Security Holder or the Depositary for all purposes
(including with respect to the registration and delivery, and the respective
principal amounts, of the Securities to be issued).
The provisions of the last sentence of Section 303 shall apply to any
Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 103 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of (and
premium, if any) and interest on and any Additional Amounts with respect to any
Security in permanent global form shall be made to the Person or Persons
specified therein.
Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company or of the Trustee shall treat a Person as the Holder of such principal
amount of Outstanding Securities represented by a global Security as shall be
specified in a written statement, if any, of the Holder of such global Security,
which is produced to the Security Registrar by such Holder.
Global Securities may be issued in either temporary or permanent form.
Permanent global Securities will be issued in definitive form.
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ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107);
(3) whether any Securities of the series are to be issuable initially
in temporary global form and whether any Securities of the series are to be
issuable in permanent global form, and, if so, whether beneficial owners of
interests in any such global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 203, and the
Depositary for any global Security or Securities of such series;
(4) the manner in which any interest payable on a temporary global
Security on any Interest Payment Date will be paid if other than in the
manner provided in Section 304;
(5) the date or dates on which the principal of (and premium, if any,
on) the Securities of the series is payable or the method of determination
thereof;
(6) the rate or rates, or the method of determination thereof, at
which the Securities of the series shall bear interest, if any, whether and
under what circumstances Additional Amounts with respect to such Securities
shall be payable, the date or dates from which such interest shall accrue,
the Interest Payment Dates on which such interest shall be payable and, if
other than as set forth in Section 101, the Regular Record Date for the
interest payable on any Securities on any Interest Payment Date;
20
(7) the place or places where, subject to the provisions of Section
1002, the principal of (and premium, if any), any interest on and any
Additional Amounts with respect to the Securities of the series shall be
payable;
(8) the period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms and
conditions upon which Securities of the series may be redeemed, in whole or
in part, at the option of the Company, if the Company is to have that
option, and the manner in which the Company must exercise any such option
if different from those set forth herein;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices (whether denominated in cash, securities
or otherwise) at which and the terms and conditions upon which Securities
of the series shall be redeemed or purchased in whole or in part pursuant
to such obligation;
(10) the denomination in which any Securities of that series shall be
issuable, if other than denominations of $1,000 and any integral multiple
thereof;
(11) the currency or currencies (including composite currencies) if
other than Dollars, or the form, including equity securities, other debt
securities (including Securities), warrants or any other securities or
property of the Company or any other Person, in which payment of the
principal of (and premium, if any), any interest on and any Additional
Amounts with respect to the Securities of the series shall be payable;
(12) if the principal of (and premium, if any) or interest on or any
Additional Amounts with Respect to the Securities of the series are to be
payable, at the election of the Company or a Holder thereof, in a currency
or currencies (including composite currencies) other than that in which the
Securities are stated to be payable, the currency or currencies (including
composite currencies) in which payment of the principal of (and premium, if
any) and interest on, and any Additional Amounts with respect to,
Securities of such series as to which such election is made shall be
payable, and the periods within which and the terms and conditions upon
which such election is to be made;
(13) if the amount of payments of principal of (and premium, if any),
any interest on and any Additional Amounts with respect to the Securities
of the series may be determined with reference to any commodities,
currencies or indices, values, rates or prices or any other index or
formula, the manner in which such amounts shall be determined;
(14) if other than the entire principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
21
(15) any additional means of satisfaction and discharge of this
Indenture with respect to Securities of the series pursuant to Section 401,
any additional conditions to discharge pursuant to Section 401 or 403 and
the application, if any, of Section 403;
(16) any deletions or modifications of or additions to the definitions
set forth in Section 101, the Events of Default set forth in Section 501 or
covenants of the Company set forth in Article Ten pertaining to the
Securities of the series;
(17) if the Securities of the series are to be convertible into or
exchangeable for equity securities, other debt securities (including
Securities), warrants or any other securities or property of the Company or
any other Person, at the option of the Company or the Holder or upon the
occurrence of any condition or event, the terms and conditions for such
conversion or exchange; and
(18) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
At the option of the Company, interest on the Securities of any series
that bears interest may be paid by mailing a check to the address of any Holder
as such address shall appear in the Security Register.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
together with such Board Resolution shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such
series denominated in Dollars shall be issuable in denominations of $1,000 and
any integral multiple thereof. Unless otherwise provided as contemplated by
Section 301 with respect to any series of Securities, any Securities of a series
denominated in a currency other than Dollars shall be issuable in denominations
that are the equivalent, as determined by the Company by reference to the noon
buying rate in The City of New York for cable transfers for such currency, as
such rate is reported or otherwise made available by the Federal Reserve Bank of
New York, on the applicable issue date for such Securities, of $1,000 and any
integral multiple thereof.
22
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, its Treasurer or one of its Vice
Presidents, under its corporate seal reproduced thereon or affixed thereto
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company and having endorsed (by attachment or imprint) thereon the Senior
Guarantees executed as provided in Article Fourteen by the Guarantors to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities with such Senior Guarantees
endorsed thereon, as in this Indenture provided and not otherwise.
If the form or terms of the Securities with the Senior Guarantees
endorsed thereon of the series have been established in or pursuant to one or
more Board Resolutions or any other method permitted by Sections 201 and 301, in
authenticating such Securities with the Senior Guarantees endorsed thereon, and
accepting the additional responsibilities under this Indenture in relation to
such Securities with the Senior Guarantees endorsed thereon, the Trustee shall
be entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities with Senior Guarantees endorsed
thereon has been established by or pursuant to Board Resolution as
permitted by Section 201, that such form has been established in conformity
with the provisions of this Indenture;
(b) if the terms of such Securities with Senior Guarantees endorsed
thereon have been established by or pursuant to Board Resolution as
permitted by Section 301, that such terms have been established in
conformity with the provisions of this Indenture; and
(c) that such Securities with Senior Guarantees endorsed thereon, when
authenticated and delivered by the Trustee and issued by the Company and
the Guarantors in the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute legal, valid and binding
obligations of the Company and the Guarantors, enforceable in accordance
with their terms, except as such enforcement is subject to the effect of
(i) bankruptcy, insolvency, fraudulent conveyance, reorganization or other
laws relating to or affecting creditors' rights and (ii) general principles
of equity (regardless of whether such enforcement is considered in a
proceeding in equity or at law).
23
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security or Senior Guarantee endorsed thereon shall be entitled to
any benefit under this Indenture or be valid or obligatory for any purpose
unless there appears on such Security, a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual
signature, and such certificate upon any Security with the Senior Guarantees
endorsed thereon shall be conclusive evidence, and the only evidence, that such
Security and Senior Guarantees have been duly authenticated and delivered
hereunder. Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 309 together with a written statement (which need not comply
with Section 103 and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company and the Guarantors may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities with Senior Guarantees endorsed
thereon which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities with Senior Guarantees endorsed thereon in lieu of which
they are issued, in registered form and with such appropriate insertions,
omissions, substitutions and other variations as the officers of the Company
executing such Securities may determine, as evidenced by their execution of such
Securities and such Senior Guarantees.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company and the Guarantors
will cause definitive Securities of that series to be prepared without
unreasonable delay. After the preparation of definitive Securities with Senior
Guarantees endorsed thereon of such series, the temporary Securities of such
series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of definitive Securities with
Senior Guarantees endorsed thereon of the same series of authorized
denominations. Until so exchanged the temporary Securities of any
24
series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
All Outstanding temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept for each series of Securities at
one of the offices or agencies maintained pursuant to Section 1002 a register
(the register maintained in such office and in any other office or agency of the
Company in a Place of Payment being herein sometimes collectively referred to as
the "Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities of such series. The Trustee is hereby initially
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Except as set forth in Section 204 or as may be provided pursuant to
Section 301, upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company and the Guarantors shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities with Senior Guarantees endorsed thereon of the same series and of
like tenor, of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series and of like tenor, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
All Securities with Senior Guarantees endorsed thereon issued upon any
registration of transfer or exchange of Securities shall be the valid
obligations of the Company and the Guarantors, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities with
Senior Guarantees endorsed thereon surrendered upon such registration of
transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company, the Guarantors, or the
Trustee) be duly endorsed, or be accompanied by a written instrument of transfer
in form satisfactory to the Company, the Guarantors, and the Security Registrar
duly executed, by the Holder thereof or his attorney duly authorized in writing.
25
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company and the Guarantors may require payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchange pursuant to Section 304, 906 or 1107 not
involving any transfer.
The Company and the Guarantors shall not be required (i) to issue,
register the transfer of or exchange Securities with Senior Guarantees endorsed
thereon of any series during a period beginning at the opening of business 15
days before the day of the mailing of a notice of redemption of Securities of
such series selected for redemption and ending at the close of business on the
day of the mailing of the relevant notice of redemption or (ii) to register the
transfer of or exchange any Security with Senior Guarantees endorsed thereon so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
and the Guarantors shall execute and the Trustee shall authenticate and deliver
in exchange therefor a new Security with Senior Guarantees endorsed thereon of
the same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If there shall be delivered to the Company, the Guarantors, and the
Trustee (i) evidence to their satisfaction of the destruction, loss or theft of
any Security and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security has been acquired by
a bona fide purchaser, the Company and the Guarantors shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security with Senior Guarantees
endorsed thereon of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company and the Guarantors in
their discretion may, instead of issuing a new Security with Senior Guarantees
endorsed thereon, pay such Security.
Upon the issuance of any new Security under this Section, the Company
and the Guarantors 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 fee and expenses of the Trustee) connected
therewith.
Every new Security with Senior Guarantees endorsed thereon of any
series issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security shall constitute an original additional contractual obligation of the
Company and the relevant Guarantor, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone, and shall be entitled
26
to all the benefits of this Indenture equally and proportionately with any and
all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest. Unless
otherwise provided with respect to the Securities of any series, payment of
interest may be made at the option of the Company by check mailed or delivered
to the address of any Person entitled thereto as such address shall appear in
the Security Register.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder of Securities of
such series at his address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in an Authorized Newspaper, but such
publication shall not be a condition precedent to the establishment of such
Special Record Date. Notice of the proposed payment
27
of such Defaulted Interest and the Special Record Date therefor having been
so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record
Date and shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture, upon registration of transfer of, in exchange
for or in lieu of, any other Security, shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Guarantors, the Trustee and any agent of the Company, the
Guarantors or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Sections 305 and 307)
interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Guarantors, the Trustee
nor any agent of the Company, any Guarantor or the Trustee shall be affected by
notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered, together with the Senior Guarantees endorsed
thereon, shall be promptly cancelled by the Trustee. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered, together with the Senior Guarantees
endorsed thereon, shall be promptly cancelled by the Trustee. No Securities
shall be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee, together with the Senior Guarantees
endorsed thereon, shall be disposed of as directed by a Company Order; provided
that the Trustee shall not be required to destroy such Securities.
28
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to Securities of a series, and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to Securities of such series, when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered (other than (i) Securities which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section
306, and (ii) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) with respect to all Outstanding Securities of such series not
theretofore delivered to the Trustee for cancellation, the Company has
deposited or caused to be deposited with the Trustee as trust funds,
under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, money or U.S. Government
Obligations maturing as to principal and interest in such amounts and
at such times as will (together with the income to accrue thereon and
without consideration of any reinvestment thereof) be sufficient to
pay and discharge (with such delivery in trust to be for the stated
purpose of paying and discharging)
29
the entire indebtedness on all Outstanding Securities of such series
not theretofore delivered to the Trustee for cancellation for
principal (and premium and Additional Amounts, if any) and interest to
the Stated Maturity or any Redemption Date contemplated by the
penultimate paragraph of this Section, as the case may be; or
(C) the Company has properly fulfilled such other means of
satisfaction and discharge as is specified, as contemplated by Section
301, to be applicable to the Securities of such series;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company and the Guarantors with respect to the Outstanding
Securities of such series;
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities of
such series pursuant to this Section 401;
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture with respect to the Outstanding Securities of such series have
been complied with;
(5) if the conditions set forth in Section 401(1)(A) have not been
satisfied, and unless otherwise specified pursuant to Section 301 for the
Securities of such series, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of Securities of such
series will not recognize income, gain or loss for United States federal
income tax purposes as a result of such deposit, satisfaction 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 time as would have been the case if
such deposit, satisfaction and discharge had not occurred; and
(6) no Default or Event of Default with respect to the Securities of
such issue shall have occurred and be continuing on the date of such
deposit or, insofar as clauses (5) or (6) of Section 501 are concerned, at
any time in the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
For the purposes of this Indenture, "U.S. Government Obligations"
means direct non-callable obligations of, or non-callable obligations the
payment of principal of and interest on which is guaranteed by, the United
States of America, or to the payment of which obligations or guarantees the full
faith and credit of the United States of America is pledged, or beneficial
interests in a trust the corpus of which consists exclusively of money or such
obligations or a combination thereof.
If any Outstanding Securities of such series are to be redeemed prior
to their Stated Maturity, whether pursuant to any optional redemption provisions
or in accordance with any
30
mandatory sinking fund requirement, the trust agreement referred to in subclause
(B) of clause (1) of this Section shall provide therefor and the Company shall
make such arrangements as are satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Outstanding Securities of such series pursuant to this Section
401, the obligations of the Company to the Trustee under Section 607, the
obligations to any Authenticating Agent under Section 614 and, except for a
discharge pursuant to subclause (A) of clause (1) of this Section, the
obligations of the Company under Sections 305, 306, 404, 610(e), 701, 1001 and
1002 and the obligations of the Trustee under Section 402 and the last paragraph
of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest and Additional Amounts for the payment of which such money has
been deposited with the Trustee.
SECTION 403. Discharge of Liability on Securities of Any Series.
If this Section is specified, as contemplated by Section 301, to be
applicable to Securities of any series, the Company shall be deemed to have paid
and discharged the entire indebtedness on all the Outstanding Securities of such
series, the obligation of the Company under this Indenture and the Securities of
such series to pay the principal of (and premium, if any) and interest on and
any Additional Amounts with respect to Securities of such series, shall cease,
terminate and be completely discharged and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging such satisfaction and
discharge, when
(1) the Company has complied with the provisions of Section 401 (other
than any additional conditions specified pursuant to Sections 301 and
401(3) and except that the Opinion of Counsel referred to in Section 401(5)
shall state that it is based on a ruling by the Internal Revenue Service or
other change since the date hereof under applicable Federal income tax law)
with respect to all Outstanding Securities of such series,
(2) the Company has delivered to the Trustee a Company Request
requesting such satisfaction and discharge,
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities of
such series pursuant to this Section 403, and
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(4) 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 discharge of the indebtedness on the
Outstanding Securities of such series have been complied with.
Upon the satisfaction of the conditions set forth in this Section with
respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that, the Company shall not be discharged
from any payment obligations in respect of Securities of such series which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law or pursuant to Section 305 or 306.
SECTION 404. Applicability of Defeasance Provisions; Company's Option to Effect
Defeasance or Covenant Defeasance.
Except as otherwise specified as contemplated by Section 301 for the
Securities of any series, the provisions of Sections 404 through 410 inclusive,
with such modifications thereto as may be specified pursuant to Section 301 with
respect to any series of Securities, shall be applicable to the Securities.
SECTION 405. Defeasance and Discharge.
On and after the date on which the conditions set forth in Section 407
are satisfied with respect to the Securities of any series, the Company shall be
deemed to have paid and been discharged from its obligations with respect to
such Securities (hereinafter "defeasance"). For this purpose, such defeasance
means that (i) the Company shall be deemed to have paid and discharged the
entire indebtedness represented by such Securities which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 408 and the other
Sections of this Indenture referred to in clause (ii) of this Section, and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, upon
payment of all amounts due it under Section 607, at the expense of the Company,
shall on a Company Order execute proper instruments acknowledging the same) and
(ii) the Guarantors shall be released from all of their obligations under their
Senior Guarantees and under Article Fourteen of this Indenture except the
following which shall survive until otherwise terminated or discharged
hereunder: (i) the rights of Holders of such Securities to receive, solely from
the trust funds described in Section 407(a) and as more fully set forth in such
Section, payments in respect of the principal of, premium, if any, and interest,
if any, on such Securities when such payments are due; (ii) the Company's
obligations with respect to such Securities under Sections 305, 309, 1002 and
1003 and with respect to the payment of Additional Amounts, if any, payable with
respect to such Securities as specified pursuant to clause (13) of Section 301;
(iii) the Company's obligations with respect to a conversion or exchange of such
Securities; (iv) the rights, powers, trusts, duties and immunities of the
Trustee hereunder; and (v) this Article Four. Subject to compliance with this
Article Four, the Company may defease the Securities of any series under this
Section 405 notwithstanding a prior covenant
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defeasance (as defined herein) under Section 406 with respect to such
Securities. Following a defeasance, payment of such Securities may not be
accelerated because of an Event of Default.
SECTION 406. Covenant Defeasance.
On and after the date on which the conditions set forth in Section 407
(other than Section 407(c)) are satisfied with respect to the Securities of or
within any series, (i) the Company shall be released from its obligations under
Sections 801 and 1004 and, if specified pursuant to Section 301, its obligations
under any other covenant, with respect to such Securities and (ii) the
occurrence of any event specified in clauses (4) and (7) of Section 501 (with
respect to any of the obligations described in clause (i) above) shall be deemed
not to be or result in an Event of Default (hereinafter, "covenant defeasance"),
and such Securities shall thereafter be deemed to be not "Outstanding" for the
purposes of any request, demand, authorization, direction, notice, waiver,
consent or declaration or Act of Holders (and the consequences of any thereof)
in connection with Section 801 or Section 1004, such other covenant specified
pursuant to Section 301, but shall continue to be deemed "Outstanding" for all
other purposes hereunder. For this purpose, such covenant defeasance means that,
with respect to such Securities, 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 Section or such other covenant, whether directly or indirectly, by
reason of any reference elsewhere herein to any such Section or such other
covenant or by reason of reference in any such Section or such other covenant to
any other provision herein or in any other document and such omission to comply
shall not constitute a Default or an Event of Default under clauses (4) and (7)
of Section 501 or otherwise, as the case may be, but, except as specified above
the remainder of this Indenture and such Securities and any interest coupons
appertaining thereto shall be unaffected thereby.
SECTION 407. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 405 or
Section 406 to any Securities of any series:
(a) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee (or another trustee satisfying the requirements of
Section 609 who shall agree to comply with, and shall be entitled to the
benefits of, the provisions of Sections 404 through 410 inclusive and the last
paragraph of Section 1003 applicable to the Trustee, for purposes of such
Sections also a "Trustee") as trust funds in trust for the purpose of making the
payments referred to in clauses (x) and (y) of this Section 407(a), specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of
such Securities, with written instructions to the Trustee as to the application
thereof, (A) money in an amount (in such currency, currencies or currency unit
or units in which such Securities are then specified as payable at Stated
Maturity), or (B) if Securities of such series are not subject to repayment at
the option of Holders, Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment referred to
in clause (x) or (y) of this Section 407(a), money in an amount or (C) a
combination thereof in an amount, sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants or a nationally
33
recognized investment banking firm expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee to pay and discharge, (x) the principal of, premium, if any, and
interest, if any, on such Securities on the Stated Maturity of such principal or
installment of principal or interest and (y) any mandatory sinking fund payments
applicable to such Securities on the date on which such payments are due and
payable in accordance with the terms of this Indenture and such Securities.
Before such a deposit the Company may make arrangements satisfactory to the
Trustee for the redemption of Securities at a future date or dates in accordance
with Article Eleven which shall be given effect in applying the foregoing.
(b) No Default or Event of Default with respect to the Securities of
that series shall have occurred or be continuing on the date of such a deposit
or shall occur as a result of such a deposit or, insofar as clauses (5) and (6)
of Section 501 are concerned, shall occur at any time during the period ending
on the 91st day after the date of such deposit.
(c) In the case of an election under Section 405, the Company shall
have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel
to the effect that (i) the Company has received from or there has been published
by, the Internal Revenue Service a ruling, or (ii) since the date of execution
of this Indenture, there has been a change in the applicable U.S. Federal income
tax law, in either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Securities and any interest coupons
appertaining thereto will not recognize income, gain or loss for U.S. Federal
income tax purposes as a result of such defeasance and will be subject to U.S.
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.
(d) In the case of an election under Section 406, the Company shall
have delivered to the Trustee an Officers' Certificate and an Opinion of Counsel
to the effect that the Holders of such Securities and any interest coupons
appertaining thereto will not recognize income, gain or loss for U.S. Federal
income tax purposes as a result of such covenant defeasance and will b subject
to U.S. 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.
(e) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 405 or the covenant defeasance under
Section 406 (as the case may be) have been complied with.
(f) Such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or limitations
which may be imposed on the Company in connection therewith as contemplated by
Section 301.
(g) At the time of such deposit: (A) no Default in the payment of
principal of (or premium, if any) or interest on any Senior Debt shall have
occurred and be continuing or (B) no other Event of Default with respect to any
Senior Debt shall have occurred and be continuing and shall have resulted in
such Senior Debt becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, or, in the case of either
clause (A) or
34
clause (B) above, each such Default or Event of Default shall have been cured or
waived or shall have ceased to exist.
SECTION 408. Deposited Money and Government Obligations to be Held in Trust.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations (or other property as may be provided pursuant
to Section 301) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 407 in respect of any Securities of any series shall be held
in trust and applied by the Trustee, in accordance with the provisions of such
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, if
any, but such money need not be segregated from other funds except as provided
herein and except to the extent required by law.
SECTION 409. Repayment to Company.
The Trustee (and any Paying Agent) shall promptly pay to the Company
upon Company Request any excess money or securities held by them at any time.
The provisions of the last paragraph of Section 1003 shall apply to
any money or securities held by the Trustee or any Paying Agent under this
Article Four that remain unclaimed for two years after the Maturity of any
series of Securities for which money or securities have been deposited pursuant
to Section 407(a).
SECTION 410. Indemnity for Government Obligations.
The Company shall pay, and shall indemnify the Trustee against, any
tax, fee or other charge imposed on or assessed against Government Obligations
deposited pursuant to this Article or the principal and interest and any other
amount received on such Government Obligations.
SECTION 411. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations deposited with respect to Securities of any series in
accordance with Section 401 or Section 407 by reason of any legal proceeding or
by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture with respect to the Securities of such series
and the Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 401 or Section 407 until such time as
the Trustee or Paying Agent is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 401 or Section 407; provided,
however, that if the Company has made any payment of principal of (or premium,
if any), or interest on or any Additional Amounts with respect to any Securities
because of the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Securities
35
to receive such payment from the money or U.S. Government Obligations held by
the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
"Event of Default," wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body),
unless it is either inapplicable to a particular series or it is specifically
deleted or modified in or pursuant to the supplemental indenture or Board
Resolution establishing such series of Securities or in the form of Security for
such series:
(1) default in the payment of any interest on or any Additional
Amounts with respect to any Security of that series when such interest or
Additional Amounts become due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any mandatory sinking fund payment, when
and as due by the terms of a Security of that series and continuance of
such default for a period of 30 days; or
(4) default in the performance or breach of any covenant or warranty
of the Company or any Guarantor in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of one or more series of
Securities other than that series), 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 all
Outstanding Securities a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(5) 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 as bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
36
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 order for relief or any
such other decree or order unstayed and in effect for a period of 90
consecutive days; or
(6) 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; or
(7) any other Event of Default provided with respect to Securities of
that series.
Notwithstanding the foregoing provisions of this Section 501, if the
principal of (and premium, if any) or any interest on, or Additional Amounts
with respect to, any Security is payable in a currency or currencies (including
a composite currency) other than Dollars and such currency (or currencies) is
(or are) not available to the Company for making payment thereof due to the
imposition of exchange controls or other circumstances beyond the control of the
Company (a "Conversion Event"), the Company will be entitled to satisfy its
obligations to Holders of the Securities by making such payment in Dollars in an
amount equal to the Dollar equivalent of the amount payable in such other
currency, as determined by the Company by reference to the noon buying rate in
The City of New York for cable transfers for such currency ("Exchange Rate"), as
such Exchange Rate is certified for customs purposes by the Federal Reserve Bank
of New York on the date of such payment, or, if such rate is not then available,
on the basis of the most recently available Exchange Rate. Notwithstanding the
foregoing provisions of this Section 501, any payment made under such
circumstances in Dollars where the required payment is in a currency other than
Dollars will not constitute an Event of Default under this Indenture.
Promptly after the occurrence of a Conversion Event with respect to
Securities of any series, the Company shall give written notice thereof to the
Trustee; and the Trustee, promptly after receipt of such notice, shall give
notice thereof in the manner provided in Section 107 to the Holders of such
series. Promptly after the making of any payment in Dollars as a result of a
Conversion Event with respect to Securities of any series, the Company shall
give notice in the manner provided
37
in Section 107 to the Holders of such series, setting forth the applicable
Exchange Rate and describing the calculation of such payments.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to any Securities of any series at
the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of (i) the series affected by such default (in the case
of an Event of Default described in clause (1), (2), (3) or (7) of Section 501)
or (ii) all series of Securities (subject to the immediately following sentence,
in the case of an Event of Default described in clause (4) of Section 501) may
declare the principal amount (or, if any such Securities are Original Issue
Discount Securities, such portion of the principal amount as may be specified in
the terms of that series) of all of the Securities of the series affected by
such default or all series, as the case may be, to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default
described in clause (5) or (6) of Section 501 shall occur, the principal amount
of the Outstanding Securities of all series ipso facto shall become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities of that series (or of
all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on, and any Additional Amounts with
respect to, all Securities of that series (or of all series, as the
case may be),
(B) the principal of (and premium, if any, on) any Securities of
that series (or of all series, as the case may be) which have become
due otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such Securities
(in the case of Original Issue Discount Securities, the Securities'
Yield to Maturity),
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest and any Additional Amounts at the rate
or rates prescribed therefor in such Securities (in the case of
Original Issue Discount Securities, the Securities' Yield to
Maturity), and
38
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series
(or of all series, as the case may be), other than the non-payment of the
principal of Securities of that series (or of all series, as the case may
be) which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 512.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on,
or any Additional Amounts with respect to, any Security of any series when
such interest or Additional Amounts shall have become due and payable and
such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and Additional
Amounts and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on any
overdue interest and Additional Amounts, at the rate or rates prescribed
therefor in such Securities (or in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity), and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If 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 and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys 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 Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights
39
of the Holders of Securities of such series by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any Guarantor or any other
obligor upon the Securities or the property of the Company or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
(or lesser amount in the case of Original Issue Discount Securities) of the
Securities 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 (and premium, if any),
interest or any Additional Amounts) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (or
lesser amount in the case of Original Issue Discount Securities) (and
premium, if any) and interest and any Additional Amounts owing and unpaid
in respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(ii) 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 Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
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 Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceedings; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official.
40
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or
Coupons.
All rights of action and claim under this Indenture or the Securities
or the Senior Guarantees may be prosecuted and enforced by the Trustee without
possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any), interest or any Additional Amounts, upon presentation of the
Securities, and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on and any Additional
Amounts with respect to the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference
or priority of any kind, according to the amounts due and payable on such
Securities for principal (and premium, if any), interest and Additional
Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
To the fullest extent allowed under applicable law, if for the purpose
of obtaining judgment against the Company in any court it is necessary to
convert the sum due in respect of the principal of (or premium, if any) or
interest on or any Additional Amounts with respect to the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
New York Business Day next preceding that on which final judgment is given.
Neither the Company nor the Trustee shall be liable for any shortfall nor shall
it benefit from any windfall in payments to Holders of Securities under this
Section caused by a change in exchange rates between the time the amount of a
judgment against it is calculated as above and the time the Trustee converts the
Judgment Currency into the Required Currency to make payments under this Section
to Holders of Securities, but payment of such judgment shall discharge all
amounts owed by the Company on the claim or claims underlying such judgment.
41
SECTION 507. Limitation on Suits.
Subject to Section 508, no Holder of any Security of any series shall
have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless
(1) an Event of Default with respect to Securities of such series
shall have occurred and be continuing and such Holder has previously given
written notice to the Trustee of such continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on and any Additional Amounts with respect to such
Security on the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired or
affected without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of any Security has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, then and in every
such case the Company, the Trustee and the Holders shall, subject
42
to any determination in such proceeding, be restored severally and respectively
to their former positions hereunder, and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
With respect to Securities of any series, the Holders of a majority in
principal amount of the Outstanding Securities of such series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, relating to or arising under an Event of Default described in
clause (1), (2), (3) or (7) of Section 501, and with respect to all Securities
the Holders of a majority in principal amount of all Outstanding Securities
shall have the right to direct the time, method and place of conducting any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, not relating to or arising under such an Event of Default, provided
that in each such case
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
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SECTION 513. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder with respect to such series and its
consequences, and the Holders of a majority in principal amount of all
Outstanding Securities may on behalf of the Holders of all Securities waive any
other past default hereunder and its consequences, except in each case a default
(1) in the payment of the principal of (or premium, if any) or
interest on, or any Additional Amounts with respect to, any Security, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
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 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,
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
or any Guarantor, 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 Securities of any series, 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, or any Additional Amounts with respect to,
any Security on or after the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date).
SECTION 515. Waiver of Stay or Extension Laws.
The Company and each Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company and
each Guarantor (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of
44
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect
to the Securities of any series,
(1) 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
(2) 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.
(b) In case an Event of Default has occurred and is continuing with
respect to the Securities of any series, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would exercise
or use under the circumstances in the conduct of his own affairs.
(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 willful misconduct, except that
(1) this Subsection shall not be construed to limit the effect of
Subsection (a) of this Section;
(2) 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;
(3) 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 Securities of any series or of all series, determined as
provided in Section 511, relating to the time, method and place
45
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 Securities of such series; and
(4) 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
satisfactory to it against such risk or liability is not 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 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall give notice of such
default hereunder known to the Trustee to all Holders of Securities of such
series in the manner provided in Section 107, unless such default shall have
been cured or waived; provided, however, that, except in the case of a default
in the payment of the principal of (or premium, if any) or interest on, or any
Additional Amounts with respect to, any Security of such series or in the
payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event, act or condition which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
46
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(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 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, coupon, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(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, except for any Affiliates of the Trustee, the Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities and in the Senior
Guarantees endorsed thereon, except the Trustee's certificates of
authentication, shall be taken as the statements of the Company or the
Guarantors, as the case may be, 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 Securities or of the Senior Guarantees
endorsed thereon. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or any Guarantor, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Company or any
Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
47
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company or any Guarantor, as the case may be.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time compensation for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the compensation and the reasonable expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee and each of its directors, officers,
employees, agents and/or representatives for, and to hold each of them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on each of their part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending themselves against
any claim or liability in connection with the exercise or performance of
any of the Trustee's powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of, premium, if any, or interest, if
any, on, or any Additional Amounts with respect to, particular Securities.
Any expenses and compensation for any services rendered by the Trustee
after the occurrence of an Event of Default specified in clause (5) or (6) of
Section 501 shall constitute expenses and compensation for services of
administration under all applicable federal or state bankruptcy, insolvency,
reorganization or other similar laws.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 608. Disqualification; Conflicting Interests.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it
shall, within 90 days after ascertaining
48
that it has such conflicting interest, either eliminate such conflicting
interest or resign with respect to the Securities of that series in the
manner and with the effect hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the Securities
of any series, the Trustee shall, within 10 days after the expiration of
such 90-day period, transmit by mail to all Holders of Securities of that
series, as their names and addresses appear in the Security Register,
notice of such failure.
(c) For the purposes of this Section, the term "conflicting interest"
shall have the meaning specified in Section 310(b) of the Trust Indenture
Act and the Trustee shall comply with Section 310(b) of the Trust Indenture
Act; provided that there shall be excluded from the operation of Section
310(b)(1) of the Trust Indenture Act with respect to the Securities of any
series any indenture or indentures under which other securities, or
certificates of interest or participation in other securities, of the
Company are outstanding, if the requirements for such exclusion set forth
in Section 310(b)(1) of the Trust Indenture Act are met. For purposes of
the preceding sentence, the optional provision permitted by the second
sentence of Section 310(b)(9) of the Trust Indenture Act shall be
applicable.
SECTION 609. 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 or District of Columbia authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such 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 resign immediately in
the manner and with the effect hereinafter specified in this Article.
The Indenture shall always have a Trustee who satisfies the
requirements of Sections 310(a)(1), 310(a)(2) and 310(a)(5) of the Trust
Indenture Act.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If
the instrument of acceptance
49
by a successor Trustee required by Section 611 shall not have been
delivered to the resigning Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or
by any such Holder of Securities, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove
the Trustee with respect to all Securities, or (ii) subject to Section 513,
any Holder who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a successor Trustee
or Trustees.
(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 Securities of one or more series, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and such successor Trustee or Trustees shall comply with the
applicable requirements of Section 611. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company and accepted appointment in the manner required by Section 611, any
Holder who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment
of a successor Trustee with respect to the Securities of such series.
50
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders of Securities of such series as their names and
addresses appear in the Security Register. Each notice shall include the
name of the successor Trustee with respect to the Securities of such series
and the address of its Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company, the Guarantors and to the
retiring Trustee an instrument accepting such appointment, and thereupon
the resignation or removal of the retiring Trustee shall become effective
and such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company 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) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the Guarantors, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more series shall execute and deliver
an indenture supplemental hereto wherein each successor Trustee shall
accept such appointment and which (1) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in,
each successor Trustee all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates, (2) if the
retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to which
the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture, the
resignation or removal of the retiring Trustee shall become effective to
the extent provided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates;
51
but, on request of the Company, any Guarantor or any successor Trustee,
such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company and the
Guarantors shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts referred to in paragraph (a) or (b) of this
Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be subject
to Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange, registration of
transfer or partial redemption or pursuant to Section 306, and Securities so
authenticated and the Senior Guarantees endorsed thereon shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.
52
Each Authenticating Agent shall be acceptable to the Company and shall at all
times be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia having a
combined capital and surplus of not less than $50,000,000 or equivalent amount
expressed in a foreign currency and subject to supervision or examination by
Federal or State or District of Columbia authority or authority of such country.
If such Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If
at any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
53
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
U.S. Bank National Association
as Trustee
By
--------------------------------,
as Authenticating Agent
By
--------------------------------
Authorized Signatory."
Notwithstanding any provision of this Section 614 to the contrary, if
at any time any Authenticating Agent appointed hereunder with respect to any
series of Securities shall not also be acting as the Security Registrar
hereunder with respect to any series of Securities, then, in addition to all
other duties of an Authenticating Agent hereunder, such Authenticating Agent
shall also be obligated: (i) to furnish to the Security Registrar promptly all
information necessary to enable the Security Registrar to maintain at all times
an accurate and current Security Register; and (ii) prior to authenticating any
Security denominated in a foreign currency, to ascertain from the Company the
units of such foreign currency that are required to be determined by the Company
pursuant to Section 302.
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular Record
Date relating to that series (or, if there is no Regular Record Date
relating to that series, on January 1 and July 1), a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of that series as of such dates, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list of
similar form and content, such list to be dated as of a date not more than
15 days prior to the time such list is furnished;
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provided, that so long as the Trustee is the Security Registrar, the Company
shall not be required to furnish or cause to be furnished such a list to the
Trustee. The Company shall otherwise comply with Section 310(a) of the Trust
Indenture Act.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of each series contained in
the most recent list furnished to the Trustee as provided in Section 701
and the names and addresses of Holders of each series received by the
Trustee in its capacity as Security Registrar, if applicable. The Trustee
may destroy any list furnished to it as provided in Section 701 upon
receipt of a new list so furnished. The Trustee shall otherwise comply with
Section 310(a) of the Trust Indenture Act.
(b) Holders of Securities may communicate pursuant to Section 312(b)
the Trust Indenture Act with other Holders with respect to their rights
under this Indenture or under the Securities.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of
the Holders in accordance with Section 702(b), regardless of the source
from which such information was derived, and that the Trustee shall not be
held accountable by reason of mailing any material pursuant to a request
made under Section 702(b). The Company, the Trustee, the Security Registrar
and any other Person shall have the protection of Section 312(c) of the
Trust Indenture Act.
SECTION 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year after the execution of
this Indenture, the Trustee shall transmit by mail to Holders a brief
report dated as of such May 15 that complies with Section 313(a) of the
Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) of the Trust
Indenture Act.
(c) Reports pursuant to this Section shall be transmitted by mail as
required by Sections 313(c) and 313(d) of the Trust Indenture Act:
(1) to all Holders of Securities, as the names and addresses of
such Holders appear in the Security Register;
(2) to such Holders of Securities as have, within the two years
preceding such transmissions, filed their names and addresses with the
Trustee for that purpose; and
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(3) except in the case of reports pursuant to Subsection (b) of
this Section, to each Holder of a Security whose name and address is
preserved at the time by the Trustee, as provided in Section 702(a).
(d) A copy of each report pursuant to Subsection (a) or (b) of this
Section 703 shall, at the time of its transmission to Holders, be filed by
the Trustee with each stock exchange upon which any Securities are listed,
with the Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
SECTION 704. Reports by Company and the Guarantors.
The Company and each of the Guarantors shall file with the Trustee,
within 15 days after the Company is required to file the same with the
Commission, copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which the
Company or any Guarantor may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended,
and shall otherwise comply with Section 314(a) of the Trust Indenture Act.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the Company
is merged or the Person which acquires by conveyance or transfer, or which
leases, the properties and assets of the Company substantially as an
entirety shall be a corporation, partnership or trust and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest on and any
Additional Amounts with respect to all the Securities and the performance
of every covenant of this Indenture on the part of the Company to be
performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event, act or condition which, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such
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supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
SECTION 802. Successor Person Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in the case of such
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company and the Guarantors,
when authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series), to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee or otherwise secure any series of the Securities or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to all or any
series of the Securities (and, if such Event of Default is applicable to
less than all series of Securities, specifying the series to which such
Event of Default is applicable); or
(4) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is adversely affected by
such change in or elimination of such provision; or
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(5) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(6) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Section 401; provided,
however, that any such action shall not adversely affect the interest of
the Holders of Securities of such series or any other series of Securities
in any material respect; or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such other provisions as
may be made shall not adversely affect the interests of the Holders of
Securities of any series in any material respect; or
(9) to add new Guarantors pursuant to Article Fourteen.
SECTION 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of a majority in principal amount of
the Outstanding Securities of all series affected by such supplemental indenture
(acting as one class), by Act of said Holders delivered to the Company and the
Trustee, the Company and the Guarantors, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon, any Additional Amounts with
respect thereto or any premium payable upon the redemption thereof, or
change any obligation of the Company to pay Additional Amounts (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce
the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or change any Place of Payment where, or
the coin or currency or currencies (including composite currencies) in
which, any Security or any premium or any interest thereon or Additional
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Amounts with respect thereto is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date), or
(2) reduce the percentage in principal amount of Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this Indenture,
or
(3) modify any of the provisions of this Section, Section 512 or
Section 1006, except to increase any such percentage or to provide with
respect to any particular series the right to condition the effectiveness
of any supplemental indenture as to that series on the consent of the
Holders of a specified percentage of the aggregate principal amount of
Outstanding Securities of such series (which provision may be made pursuant
to Section 301 without the consent of any Holder) or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to require
the consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this Section and Section 1006, or the
deletion of this proviso, in accordance with the requirements of Sections
611(b) and 901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
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SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any), interest on and any Additional Amounts with respect to the Securities
of that series in accordance with the terms of the Securities and this
Indenture.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company or any Guarantor in respect of the Securities or the Senior
Guarantees of that series and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee.
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The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
SECTION 1003. Money for Securities Payments to be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on or any Additional Amounts with
respect to any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest or any Additional Amounts so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, the Company will, on or before each due date of the
principal of (and premium, if any) or interest on any Securities of that series,
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 any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of (and
premium, if any), interest on or any Additional Amounts with respect to
Securities of that series 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;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any), interest on or any Additional
Amounts with respect to the Securities of that series; and
(3) 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.
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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 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 or any Additional Amounts with respect to any Security of
any series and remaining unclaimed for three years after such principal (and
premium, if any) or interest or Additional Amounts have become due and payable
shall, unless otherwise required by mandatory provisions of applicable escheat,
or abandoned or unclaimed property law, be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper in The Borough of Manhattan, The City of New York and in
such other Authorized Newspapers as the Trustee shall deem appropriate, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will, unless otherwise required
by mandatory provisions of applicable escheat, or abandoned or unclaimed
property law, be repaid to the Company.
SECTION 1004. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 1005. 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 so long as any
Security is outstanding hereunder, an Officers' Certificate complying with
Section 314(a) of the Trust Indenture Act, stating that a review of the
activities of the Company during such year and of performance under this
Indenture has been made under the supervision of the signers thereof and whether
or not to the best of their knowledge, based upon such review, the Company and
each Guarantor is not in default in the performance, observance or fulfillment
of any of their respective covenants and other obligations under this Indenture,
and if the Company or any Guarantor shall be in default, specifying each such
default known to them and the nature and status thereof. One of the officers
signing the Officers' Certificate delivered pursuant to this Section 1005 shall
be the principal executive, financial or accounting officer of the Company.
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For purposes of this Section, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.
SECTION 1006. Waiver of Certain Covenants.
The Company or any Guarantor may omit in any particular instance to
comply with any covenant or condition set forth in Section 1004, or any covenant
added for the benefit of any series of Securities as contemplated by Section 301
(unless otherwise specified pursuant to Section 301) if before or after the time
for such compliance the Holders of a majority in principal amount of the
Outstanding Securities of all series affected by such omission (acting as one
class) shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such covenant or condition, but no
such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the
obligations of the Company and each of the Guarantors and the duties of the
Trustee in respect of any such covenant or condition shall remain in full force
and effect.
SECTION 1007. Additional Amounts.
If the Securities of a series expressly provide for the payment of
Additional Amounts, the Company will pay to the Holder of any Security of such
series Additional Amounts as expressly provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of or
any premium or interest on, or in respect of, any Security of any series or the
net proceeds received from the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided for in this Section to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of Additional
Amounts (if applicable) in any provisions hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such express
mention is not made.
If the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the FIRST Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company shall furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series who are United
States Aliens without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of that series. If any
such withholding shall be required, then such Officers' Certificate shall
specify by country the amount, if any, required to be withheld on such payments
to such Holders of Securities and the Company will pay to such Paying Agent the
Additional Amounts required by this Section. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against any
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loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished pursuant to this
Section 1007.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
Unless otherwise provided with respect to the Securities of a series
as contemplated by Section 301, the election of the Company to redeem any
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all the Securities of any series,
the Company shall, a reasonable period prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series or of the principal amount
of global Securities of such series.
The Trustee shall promptly notify the Company and the Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be
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redeemed only in part, to the portion of the principal amount of such Securities
which has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
107 to each Holder of Securities to be redeemed not less than 30 nor more than
60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date;
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price;
(6) that the redemption is for a sinking fund, if such is the case;
and
(7) the "CUSIP" number, if applicable.
A notice of redemption as contemplated by Section 107 need not
identify particular Securities to be redeemed. Notice of redemption of
Securities to be redeemed at the election of the Company shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price.
On or before 10:00 a.m New York, New York, time, on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust
as provided in Section 1003) an amount of money sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, and any Additional Amounts with respect
to, all the Securities which are to be redeemed on that date.
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SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
(and any Additional Amounts) to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security or, in the case of Original Issue Discount Securities,
the Securities' Yield to Maturity.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities (each with a Senior Guarantee of each
Guarantor executed by each such Guarantor and endorsed thereon) of the same
series and Stated Maturity, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
SECTION 1108. Purchase of Securities.
Unless otherwise specified as contemplated by Section 301, the Company
and any Affiliate of the Company may at any time purchase or otherwise acquire
Securities in the open market or by private agreement. Such acquisition shall
not operate as or be deemed for any purpose to be a redemption of the
indebtedness represented by such Securities. Any Securities purchased or
acquired by the Company may be delivered to the Trustee and, upon such delivery,
the indebtedness represented thereby shall be deemed to be satisfied. Section
309 shall apply to all Securities so delivered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." Unless otherwise provided by the terms of Securities of
any series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption), and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior (unless a shorter period shall be
satisfactory to the Trustee) to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivery of or by crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 and cause notice of the
redemption thereof to be given in the name of and at the expense of the Company
in the manner provided in Section 1104. Such notice having
67
been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any or all series may be called
at any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 1302. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1301, to be
held at such time and at such place in St. Xxxx, Minnesota, or in any other
location, as the Trustee shall determine. Notice of every meeting of Holders
of Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 107, not less than 20 nor
more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in aggregate principal amount of
the Outstanding Securities of any series, shall have requested the Trustee
for any such series to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1301, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting,
and the Trustee shall not have made the first publication of the notice of
such meeting within 30 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then
the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in St.
Xxxx, Minnesota, for such meeting and may call such meeting for such purposes
by giving notice thereof as provided in Subsection (a) of this Section.
SECTION 1303. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
68
SECTION 1304. Quorum; Action.
The Persons entitled to vote a majority in aggregate principal amount
of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series, be
dissolved. In any other case, the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Subject to Section 1305(d), notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1302(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly that Persons
entitled to vote a majority in principal amount of the Outstanding Securities of
such series shall constitute a quorum.
Except as limited by the first proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the first proviso to
Section 902, any resolution with respect to any request, demand, authorization,
direction, notice, consent or waiver which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage that is less
than a majority in aggregate principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in aggregate principal amount of the Outstanding
Securities of that series.
Except as limited by the first proviso to Section 902, any resolution
passed or decision taken at any meeting of Holders of Securities of any series
duly held in accordance with this Section shall be binding on all the Holders of
Securities of such series, whether or not present or represented at the meeting.
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) The holding of Securities shall be proved in the manner specified
in Section 105 and the appointment of any proxy shall be proved in the
manner specified in Section 105. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 105 or other
proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
1302(b), in which case the Company or the Holders of
69
Securities of the series calling the meeting, as the case may be, shall
appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled
to vote a majority in aggregate principal amount of the Outstanding
Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series and each
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of
any Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or as a
proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1302 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of such series represented at the
meeting; and the meeting may be held as so adjourned without further
notice.
SECTION 1306. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
70
ARTICLE FOURTEEN
SENIOR GUARANTEE
SECTION 1401. Guarantee.
Subject to this Article Fourteen, each of the Guarantors hereby,
jointly and severally, unconditionally guarantees, on a senior basis, to each
Holder of a Security authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Securities or the obligations of the
Company hereunder or thereunder, that: (a) the principal of and interest on the
Securities will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of
and interest on the Securities, if any, if lawful, and all other obligations of
the Company to the Holders or the Trustee hereunder or thereunder will be
promptly paid in full or performed, all in accordance with the terms hereof and
thereof; and (b) in case of any extension of time of payment or renewal of any
Securities or any of such other obligations, that same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or otherwise. Failing
payment when due of any amount so guaranteed or any performance so guaranteed
for whatever reason, the Guarantors shall be jointly and severally obligated to
pay the same immediately. Each Guarantor agrees that this is a guarantee of
payment and not a guarantee of collection.
The Guarantors hereby agree that (subject to the provisions of Section
1402 hereof) their obligations hereunder shall be unconditional, irrespective of
the validity, regularity or enforceability of the Securities or this Indenture,
the absence of any action to enforce the same, any waiver or consent by any
Holder of the Securities with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a Guarantor. Each Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and covenant
that this Senior Guarantee shall not be discharged except by complete
performance of the obligations contained in the Securities and this Indenture.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors or any custodian, trustee, liquidator or
other similar official acting in relation to either the Company or the
Guarantors, any amount paid by either to the Trustee or such Holder, this Senior
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations
71
guaranteed hereby may be accelerated as provided in Article Five hereof for the
purposes of this Senior Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article Five hereof, such obligations (whether
or not due and payable) shall forthwith become due and payable by the Guarantors
for the purpose of this Senior Guarantee. The Guarantors shall have the right to
seek contribution from any non-paying Guarantor so long as the exercise of such
right does not impair the rights of the Holders under the Senior Guarantee.
SECTION 1402. Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Securities, each Holder,
hereby confirms that it is the intention of all such parties that the Senior
Guarantee of such Guarantor not constitute a fraudulent transfer or conveyance
for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the
Uniform Fraudulent Transfer Act or any similar federal or state law to the
extent applicable to any Senior Guarantee. To effectuate the foregoing
intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree
that the obligations of such Guarantor will, after giving effect to such maximum
amount and all other contingent and fixed liabilities of such Guarantor that are
relevant under such laws, and after giving effect to any collections from,
rights to receive contribution from or payments made by or on behalf of any
other Guarantor in respect of the obligations of such other Guarantor under this
Article Fourteen, result in the obligations of such Guarantor under its Senior
Guarantee not constituting a fraudulent transfer or conveyance.
SECTION 1403. Execution and Delivery of Senior Guarantee.
To evidence its Senior Guarantee set forth in Section 1401, each
Guarantor hereby agrees that a notation of such Senior Guarantee substantially
in the form set forth in Section 203 shall be endorsed by an Officer of such
Guarantor on each Security authenticated and delivered by the Trustee and that
this Indenture shall be executed on behalf of such Guarantor by its President or
one of its Vice Presidents.
Each Guarantor hereby agrees that its Senior Guarantee set forth in
Section 1401 shall remain in full force and effect notwithstanding any failure
to endorse on each Security a notation of such Senior Guarantee.
If an Officer whose signature is on this Indenture or on the Senior
Guarantee no longer holds that office at the time the Trustee authenticates the
Security on which a Senior Guarantee is endorsed, the Senior Guarantee shall be
valid nevertheless.
The delivery of any Security by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Senior Guarantee set
forth in this Indenture on behalf of the Guarantors.
72
SECTION 1404. Releases Following Sale of Assets.
In the event of a sale or other disposition of all of the assets of
any Guarantor, by way of merger, consolidation or otherwise, or a sale or other
disposition of all to the Capital Stock of any Guarantor, in each case to a
Person that is not (either before or after giving effect to such transactions) a
Subsidiary of the Company, then such Guarantor (in the event of a sale or other
disposition, by way of merger, consolidation or otherwise, of all of the capital
stock of such Guarantor) or the Person acquiring the property (in the event of a
sale or other disposition of all or substantially all of the assets of such
Guarantor) will be released and relieved of any obligations under this Indenture
and its Senior Guarantee, if immediately after giving effect to such sale, there
is no Default or Event of Default that has occurred and is continuing. If such
Guarantor is not released and relieved of its obligations under its Senior
Guarantee because a Default or Event of Default has occurred and is continuing
immediately after giving effect to such sale, such Guarantor will be released
and relieved of such obligations as soon thereafter as all Defaults and Events
of Default have been waived or cured. The Trustee shall execute any documents
reasonably required in order to evidence the release of any Guarantor, pursuant
to the provisions of this Section 1405, from its obligations under its Senior
Guarantee.
Any Guarantor not released from its obligations under its Senior
Guarantee shall remain liable for the full amount of principal of and interest
on the Securities and for the other obligations of any Guarantor under this
Indenture as provided in this Article.
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
KEY ENERGY SERVICES, INC.
By: /s/ Xxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxx X. Xxxxxx, Xx.
Title: Sr. Vice President,
General Counsel and Secretary
73
Xxxxxx Well Servicing, Inc.
By: /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxx X. Xxxxxx, Xx.
-----------------------------------
Title: Vice President
-----------------------------------
Xxxxxx Production Management, Inc.
By: /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxx X. Xxxxxx, Xx.
-----------------------------------
Title: Vice President
-----------------------------------
Xxxxxx Production Partners, L.P.
By: Xxxxxx Production Management, Inc.
its sole general partner
By: /s/ Xxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxx X. Xxxxxx, Xx.
--------------------------------
Title: Vice President
--------------------------------
Xxxxxx Production Acquisition Corp.
By: /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxx X. Xxxxxx, Xx.
-----------------------------------
Title: Vice President
-----------------------------------
Xxxxxx Production Xxxxxx, Inc.
By: /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxx X. Xxxxxx, Xx.
-----------------------------------
Title: Vice President
-----------------------------------
Kalkaska Oilfield Services, Inc.
By: /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxx X. Xxxxxx, Xx.
-----------------------------------
Title: Vice President
-----------------------------------
Key Four Corners, Inc.
By: /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxx X. Xxxxxx, Xx.
-----------------------------------
Title: Vice President
-----------------------------------
Key Energy Services--South Texas, Inc.
By: /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxx X. Xxxxxx, Xx.
-----------------------------------
Title: Vice President
-----------------------------------
Key Energy Drilling, Inc.
By: /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxx X. Xxxxxx, Xx.
-----------------------------------
Title: Vice President
-----------------------------------
Key Rocky Mountain, Inc.
By: /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxx X. Xxxxxx, Xx.
-----------------------------------
Title: Vice President
-----------------------------------
Key Energy Services--California, Inc.
By: /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxx X. Xxxxxx, Xx.
-----------------------------------
Title: Vice President
-----------------------------------
Odessa Exploration Incorporated
By: /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxx X. Xxxxxx, Xx.
-----------------------------------
Title: Vice President
-----------------------------------
Xxxxxx Oilfield Service & Supply, Inc.
By: /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxx X. Xxxxxx, Xx.
-----------------------------------
Title: Vice President
-----------------------------------
Well-Co Oil Service, Inc.
By: /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxx X. Xxxxxx, Xx.
-----------------------------------
Title: Vice President
-----------------------------------
WellTech Eastern, Inc.
By: /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxx X. Xxxxxx, Xx.
-----------------------------------
Title: Vice President
-----------------------------------
WellTech Mid-Continent, Inc.
By: /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxx X. Xxxxxx, Xx.
-----------------------------------
Title: Vice President
-----------------------------------
Yale E. Key, Inc.
By: /s/ Xxxx X. Xxxxxx, Xx.
-----------------------------------
Name: Xxxx X. Xxxxxx, Xx.
-----------------------------------
Title: Vice President
-----------------------------------
U.S. Bank National Association, Trustee
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
74
SCHEDULE I
The following schedule lists each Guarantor under the Indenture as of the Issue
Date.
Yale E. Key, Inc., a Texas corporation; Key Energy Drilling, Inc., a Delaware
corporation; WellTech Eastern, Inc., a Delaware corporation; Odessa
Exploration Incorporated, a Delaware corporation; Kalkaska Oilfield Services,
Inc., a Michigan corporation; Well-Co Oil Services, Inc., a Nevada
corporation; Key Rocky Mountain, Inc., a Delaware corporation; Key Four
Corners, Inc., a Delaware corporation; Xxxxxx Well Servicing, Inc., a
Delaware corporation; Key Energy Services - South Texas, Inc., a Delaware
corporation; Key Energy Services - California, Inc., a Delaware corporation;
Xxxxxx Oilfiled Service & Supply, Inc., a Delaware corporation; WellTech
Mid-Continent, Inc., a Delaware corporation; Xxxxxx Production Management,
Inc., a Delaware corporation; Xxxxxx Production Xxxxxx, Inc., a Delaware
corporation; Xxxxxx Production Acquisition Corp., a Delaware corporation; and
Xxxxxx Production Partners, L.P., a Delaware limited partnership.
Sch I - 1
