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FOREST OIL CORPORATION
and
, TRUSTEE
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INDENTURE
Dated as of
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Debt Securities
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CROSS-REFERENCE TABLE
Indenture
TIA Section Section
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SECTION 310 (a)(1) ............................. 8.10
(a)(2) ............................. 8.10
(a)(3) ............................. N.A.
(a)(4) ............................. N.A.
(a)(5) ............................. 8.08
(b) ................................ 8.08; 8.10; 11.02
(c) ................................ N.A.
SECTION 311 (a) ................................ 8.11
(b) ................................ 8.11
(c) ................................ N.A.
SECTION 312 (a) ................................ 2.06
(b) ................................ 11.03
(c) ................................ 11.03
SECTION 313 (a) ................................ 8.06
(b)(1) ............................. N.A.
(b)(2) ............................. 8.06
(c) ................................ 8.06; 11.02
(d) ................................ 8.06
SECTION 314 (a) ................................ 5.09; 11.02
(b) ................................ N.A.
(c)(1) ............................. 11.04
(c)(2) ............................. 11.04
(c)(3) ............................. N.A.
(d) ................................ N.A.
(e) ................................ 11.05
(f) ................................ N.A.
SECTION 315 (a) ................................ 8.01(b)
(b) ................................ 8.05; 11.02
(c) ................................ 8.01(a)
(d) ................................ 8.01(c)
(e) ................................ 7.11
SECTION 316 (a)(last sentence) ................. 2.10
(a)(1)(A) .......................... 7.05
(a)(1)(B) .......................... 7.04
(a)(2) ............................. N.A.
(b) ................................ 7.07
(c) ................................ 10.04
SECTION 317 (a)(1) ............................. 7.08
(a)(2) ............................. 7.09
(b) ................................ 2.05
SECTION 318 (a) ................................ 11.01
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to
be a part of this Indenture.
TABLE OF CONTENTS
Page
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RECITALS OF THE COMPANY .............................................
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions ....................................
SECTION 1.02. Incorporation by Reference of Trust
Indenture Act ................................
SECTION 1.03. Rules of Construction ..........................
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form of Securities .............................
SECTION 2.02. Title and Terms ................................
SECTION 2.03. Execution and Authentication ...................
SECTION 2.04. Registration and Paying Agent ..................
SECTION 2.05. Paying Agent to Hold Money in Trust ............
SECTION 2.06. Securityholders Lists ..........................
SECTION 2.07. Transfer and Exchange ..........................
SECTION 2.08. Replacement Securities .........................
SECTION 2.09. Outstanding Securities .........................
SECTION 2.10. Treasury Securities ............................
SECTION 2.11. Temporary Securities ...........................
SECTION 2.12. Cancellation ...................................
SECTION 2.13. Defaulted Interest .............................
SECTION 2.14. Persons Deemed Owners ..........................
ARTICLE 3
REDEMPTION
SECTION 3.01. Right of Redemption ............................
SECTION 3.02. Applicability of Article .......................
SECTION 3.03. Election to Redeem; Notice to Trustee ..........
SECTION 3.04. Selection by Trustee of Securities to be
Redeemed .....................................
SECTION 3.05. Notice of Redemption ...........................
SECTION 3.06. Deposit of Redemption Price ....................
SECTION 3.07. Securities Payable on Redemption Date ..........
SECTION 3.08. Securities Redeemed in Part ....................
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ARTICLE 4
SINKING FUND
Page
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SECTION 4.01. Sinking Fund Payments ..........................
SECTION 4.02. Satisfaction of Securities for Sinking
Fund .........................................
SECTION 4.03. Redemption of Securities for Sinking Fund ......
ARTICLE 5
COVENANTS
SECTION 5.01. Payment of Securities ..........................
SECTION 5.02. Maintenance of Office or Agency ................
SECTION 5.03. Corporate Existence ............................
SECTION 5.04. Payment of Taxes and Other Claims ..............
SECTION 5.05. Notice of Defaults .............................
SECTION 5.06. Maintenance of Properties ......................
SECTION 5.07. Liquidation ....................................
SECTION 5.08. Compliance Certificate .........................
SECTION 5.09. SEC Reports ....................................
SECTION 5.10. Waiver of Stay, Extension or Usury Laws ........
ARTICLE 6
SUCCESSOR CORPORATION
SECTION 6.01. When Company May Merge, etc. ...................
SECTION 6.02. Successor Corporation Substituted ..............
ARTICLE 7
DEFAULT AND REMEDIES
SECTION 7.01. Events of Default ..............................
SECTION 7.02. Acceleration ...................................
SECTION 7.03. Other Remedies .................................
SECTION 7.04. Waiver of Past Defaults ........................
SECTION 7.05. Control by Majority ............................
SECTION 7.06. Limitation on Suits ............................
SECTION 7.07. Rights of Holders to Receive Payment ...........
SECTION 7.08. Collection Suit by Trustee .....................
SECTION 7.09. Trustee May File Proofs of Claim ...............
SECTION 7.10. Priorities .....................................
SECTION 7.11. Undertaking for Costs ..........................
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Page
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ARTICLE 8
TRUSTEE
SECTION 8.01. Duties of Trustee ..............................
SECTION 8.02. Rights of Trustee ..............................
SECTION 8.03. Individual Rights of Trustee ...................
SECTION 8.04. Trustee's Disclaimer ...........................
SECTION 8.05. Notice of Defaults .............................
SECTION 8.06. Reports by Trustee to Holders ..................
SECTION 8.07. Compensation and Indemnity .....................
SECTION 8.08. Replacement of Trustee .........................
SECTION 8.09. Successor Trustee by Merger, etc. ..............
SECTION 8.10. Eligibility; Disqualification ..................
SECTION 8.11. Preferential Collection of Claims Against
Company ......................................
ARTICLE 9
DISCHARGE OF INDENTURE
SECTION 9.01. Termination of Company's Obligations ...........
SECTION 9.02. Application of Trust Money .....................
SECTION 9.03. Repayment to Company ...........................
SECTION 9.04. Reinstatement ..................................
SECTION 9.05. Indemnity for U.S. Government Obligations .........
ARTICLE 10
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders .....................
SECTION 10.02. With Consent of Holders ........................
SECTION 10.03. Compliance With Trust Indenture Act ............
SECTION 10.04. Revocation and Effect of Consents ..............
SECTION 10.05. Notation On or Exchange of Securities ..........
SECTION 10.06. Trustee to Sign Amendments, etc. ...............
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls ...................
SECTION 11.02. Notices ........................................
SECTION 11.03. Communications by Holders With Other
Holders ......................................
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent ....................................
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Page
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SECTION 11.05. Statements Required in Certificate or
Opinion ......................................
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar ......
SECTION 11.07. Legal Holidays .................................
SECTION 11.08. Governing Law ..................................
SECTION 11.09. No Adverse Interpretation of Other
Agreements ...................................
SECTION 11.10. No Recourse Against Others .....................
SECTION 11.11. Successors .....................................
SECTION 11.12. Duplicate Originals ............................
SECTION 11.13. Separability ...................................
SECTION 11.14. Action of Holders When Securities are
Denominated in Different Currencies ..........
SECTION 11.15. Monies of Different Currencies to be
Segregated ...................................
SECTION 11.16. Payment to be in Proper Currency ...............
SIGNATURES ..........................................................
EXHIBIT A -- Form of Security .......................................
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NOTE: This Table of Contents shall not, for any purpose, be deemed to be a
part of this Indenture.
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INDENTURE, dated as of , 199 , between Forest Oil
Corporation, a New York corporation (the "Company"), and
, a national banking association,
as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
unsecured notes, debentures or other evidences of indebtedness
(collectively, the "Securities"), to be issued from time to time in one or
more series (a "Series") as provided in this Indenture and as shall be
provided, in respect of any Series, in or pursuant to the Authorizing
Resolution hereinafter referred to and/or in the indenture supplemental
hereto (if any) relating to such Series.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"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 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" means any Registrar, Paying Agent or co-Registrar.
"Authorizing Resolution" means a Board Resolution providing for
the issuance of a Series of Securities.
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"Bankruptcy Law" shall have the meaning provided in Section 6.01.
"Board of Directors" means the Board of Directors of the
Company or any duly authorized committee of the 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 (except as
provided in Section 2.03).
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means, with respect to any person, any and all
shares, interests, participations or other equivalents (however designated)
of corporate stock of such person other than Mandatory Redemption Preferred
Stock.
"Capitalized Lease Obligation" means Indebtedness represented
by obligations under a lease that is required to be capitalized for
financial reporting purposes in accordance with generally accepted
accounting principles and the amount of such Indebtedness shall be the
capitalized amount of such obligations determined in accordance with such
principles.
"Company" means the party named as such in this Indenture until
a successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by two Officers
of the Company or by an Officer and the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, and delivered to the Trustee in
respect of the Series to which the Company Request or Company Order shall
relate.
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"Consolidated Subsidiary" means a Subsidiary which for
financial reporting purposes is accounted for by the Company as a
consolidated subsidiary.
"Corporate Trust Office" or other similar term means the
principal office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at the date
hereof is located at ; the
Trustee will notify the Company of any change thereof.
"Custodian" shall have the meaning provided in Section 7.01.
"Default" means any event which is, or after notice or passage
of time would be, an Event of Default.
"Event of Default" shall have the meaning provided in Section 7.01.
"Extendible Securities" means Securities of any Series issued
hereunder the final maturity of which is extendible for a stated period of
time, as shall be provided in, or pursuant to, the Authorizing Resolution
and/or supplemental indenture (if any) relating to such Series.
"Holder" or "Securityholder" means, with respect to any
Security, the person in whose name such Security is registered on the
Security Register.
"Indebtedness" means (i) any liability of any person (a) for
borrowed money, (b) evidenced by a note, debenture or similar instrument
(including a purchase money obligation) given in connection with the
acquisition of any property or assets (other than inventory or similar
property acquired in the ordinary course of business), including
securities, or
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(c) for the payment of money relating to a Capitalized Lease Obligation; (ii)
any guarantee by any person of any liability of others described in the
preceding clause (i); and (iii) any amendment, renewal, extension or
refunding of any liability of the types referred to in clauses (i) and (ii)
above.
"Indenture" means this Indenture as amended or supplemented
from time to time and shall include the forms and terms of particular
Series of Securities established as contemplated hereunder.
"Interest Payment Date" means, for any Series of Securities
issued and outstanding hereunder, the date or dates in each year on which
any interest on such Series is paid or made available for payment.
"Legal Holiday" shall have the meaning provided in Section 11.07.
"Lien" means any mortgage, lien, pledge, charge, or other
security interest or encumbrance of any kind.
"Mandatory Redemption Preferred Stock" means, with respect to
any person, any and all shares of preferred stock of such person now
outstanding or hereafter issued, subject to mandatory redemption
provisions.
"Maturity" when used with respect to any Security means the
date on which the principal of such Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Maturity Date" means the date specified in each Security on
which the principal thereof is due and payable in full.
"Officer" means the Principal Executive Officer, Principal
Financial Officer or Principal Accounting Officer of the Company.
"Officers' Certificate" means a certificate signed by two
Officers or by an Officer and the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee. See Sections 11.04 and 11.05.
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"Opinion of Counsel" means a written opinion from legal counsel
who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company. See Sections 11.04 and 11.05.
"Original Issue Date" means the date on which a Security is
issued to the original purchaser thereof, as specified in such Security.
"Original Issue Discount Securities" means Securities which
provide for an amount less than 100% of the principal amount thereof to be
due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 7.02.
"Paying Agent" shall have the meaning provided in Section 2.04,
except that for the purposes of Article 9 and Section 5.07 the Paying Agent
shall not be the Company or any Subsidiary.
"person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision
thereof.
"principal" of a debt security means the principal of the
security plus, when appropriate, the premium, if any, on the security.
"Redeemable Securities" means Securities of any Series which
may be redeemed, at the option of the Company, prior to the Stated Maturity
thereof, on the terms specified in or pursuant to the Authorizing
Resolution and/or supplemental indenture relating to such Series and in
accordance with Article 3 herein.
"Redemption Date" when used with respect to any Security of any
Series to be redeemed means the date fixed for such redemption by or
pursuant to the provisions of such Security,
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this Indenture and the Authorizing Resolution and/or supplemental indenture
relating to such Security.
"Redemption Price" when used with respect to any Security of
any Series to be redeemed means the price at which it is to be redeemed
pursuant to the provisions of such Security, this Indenture and the
Authorizing Resolution and/or supplemental indenture relating to such
Security.
"Registrar" shall have the meaning provided in Section 2.04.
"Regular Record Date" means, for the interest payable on any
Interest Payment Date in respect of any Series of Securities, except as
provided in, or pursuant to, the Authorizing Resolution and/or supplemental
indenture relating thereto, the day (whether or not a Business Day) that is
fifteen days preceding the applicable Interest Payment Date.
"Required Currency" shall have the meaning provided in Sec-
tion 11.16.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Securities, as amended or supplemented
from time to time pursuant to the terms of this Indenture, of the Company
of any Series that are issued under this Indenture.
"Security Register" shall have the meaning provided in
Section 2.04.
"Series" means, with respect to Securities issued hereunder,
the Securities issued pursuant to any particular Authorizing Resolution
and/or supplemental indenture (if any), subject to the right of the Board
of Directors to specify in such Authorizing Resolution and/or supplemental
indenture (if any) that such Securities shall constitute more than one
Series.
"Short-Term Borrowing" means all Indebtedness in respect of
borrowed money maturing on demand or within one year from the date of the
creation thereof and not directly or indirectly renewable or extendible, at
the option of the debtor, by
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its terms or by the terms of any instrument or agreement relating thereto, to
a date one year or more from the date of the creation thereof; PROVIDED, that
indebtedness in respect of borrowed money arising under a revolving credit or
similar agreement which obligates the lender or lenders to extend credit over
a period of one year or more shall constitute Funded Debt and not Short-Term
Borrowing even though the same matures on demand or within one year from the
date as of which such Short-Term Borrowing is to be determined.
"Significant Subsidiary" shall have the meaning provided in
Section 7.01.
"Sinking Fund" means, with respect to any Sinking Fund
Securities, a sinking fund provided for in Article 4.
"Sinking Fund Securities" means Securities of any Series which
are required to be redeemed from time to time prior to the Stated Maturity
thereof in whole or in part under a Sinking Fund, on the terms specified in
the Authorizing Resolution and/or supplemental indenture (if any) relating
to such Series and in accordance with Article 4 herein.
"Special Record Date" shall have the meaning provided in Sec-
tion 2.13.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon means the date specified in such Security
as the fixed date on which the principal of such Security or such
installment of interest is due and payable.
"Subsidiary" means (i) a corporation a majority of whose capital
stock with voting power, under ordinary circumstances, to elect directors is
at the time, directly or indirectly, owned by the Company, by the Company and
a Subsidiary (or Subsidiaries) of the Company or by a Subsidiary (or
Subsidiaries) of the Company or (ii) any other person (other than a
corporation) in which the Company, a Subsidiary (or Subsidiaries) of the
Company or the Company and a Subsidiary (or Subsidiaries) of the Company,
directly or indirectly, at the date of determination thereof has at least
majority ownership interest; PROVIDED, that no corporation shall be deemed a
Subsidiary until the Company, a Subsidiary (or Subsidiaries) of the Company
or the Company and a Subsidiary (or Subsidiaries) of the Company acquires
more than 50% of the outstanding voting stock thereof and has elected a
majority of its board of directors.
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"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date of this Indenture except as
provided in Section 10.03.
"Trustee" means the party named as such in this Indenture until
a successor replaces it in accordance with the provisions of this Indenture
and thereafter means and includes the person or 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 Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters.
"U.S. Government Obligations" shall have the meaning provided
in Section 9.01.
"Yield to Maturity" means, with respect to any Series of
Securities, the yield to maturity thereof, calculated at the time of
issuance thereof, or, if applicable, at the most recent redetermination of
interest thereon, and calculated in accordance with accepted financial
practice.
SECTION 1.02. INCORPORATION BY REFERENCE
OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
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All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule
and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles in effect on the date hereof, and any other reference in
this Indenture to "generally accepted accounting principles" refers
to generally accepted accounting principles on the date hereof;
(3) "or" is not exclusive;
(4) word in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article,
Section or other Subdivision.
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM OF SECURITIES.
The Securities of each Series and the certificate of
authentication thereon shall be in substantially the forms set forth in
Exhibit A or in such other forms as shall be specified in, or pursuant to,
the Authorizing Resolution and/or in the indenture supplemental hereto (if
any) relating to such Series, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or the said Authorizing Resolution and/or supplemental indenture
(if any).
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The definitive Securities of each Series shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by
the rules of any securities exchange on which the Securities may be listed,
or, if they shall not be listed on any securities exchange, in any other
manner consistent herewith, all as shall be determined by the officers
executing such Securities, as evidenced by their execution of such
Securities. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage. The Company shall approve the
form of the Securities and any notation, legend or endorsement on them.
The terms and provisions contained in the Securities, annexed
hereto as Exhibit A or such other forms as specified in the Authorizing
Resolution and/or supplemental indenture (if any) relating thereto, shall
constitute, and are hereby expressly made, a part of this Indenture.
SECTION 2.02. TITLE AND TERMS.
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. The terms of
each Series shall be as provided in an Authorizing Resolution and/or
supplemental indenture (if any) or shall be determined in the manner
specified therein. The terms to be specified in respect of each Series in
the Authorizing Resolution and/or supplemental indenture (if any), or by such
person and/or procedures as shall be provided therein, shall include the
following:
(1) the title of the Securities of such Series, which shall
distinguish such Series from all other Series;
(2) the aggregate principal amount of the Securities of such
Series which may be authenticated and delivered under this Indenture
(except for Securities of such Series authenticated and delivered
upon transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 2.07, 2.08, 2.11, 3.08 or 10.05);
(3) the date or dates on which the principal of the Securities
of such Series is payable, and, if the Series shall be Extendible
Securities, the terms on which the
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Company or any other person shall have the option to extend the Maturity
of such Securities and the rights, if any, of the Holders to require
payment of the Securities;
(4) the rate or rates at which the Securities of such Series
shall bear interest, if any (whether floating or fixed), the
provisions, if any, for determining such interest rate or rates and
adjustments thereto, the date or dates from which such interest shall
accrue, the Interest Payment Dates therefor and the Regular Record
Dates (if different from those provided in the form of Security herein
set forth) for the determination of Holders of the Securities of such
Series to whom interest is payable;
(5) the place or places where the principal of and interest on
securities of such Series shall be payable (if other than as provided
in Section 5.02);
(6) the price or prices at which, the period or periods within
which and the terms and conditions upon which the Securities of such
Series may be redeemed, in whole or in part, at the option of the
Company, pursuant to a Sinking Fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase
or repay Securities of such Series, in whole or in part, pursuant to
a Sinking Fund or otherwise or at the option of a Holder thereof, and
the price or prices at which, the period or periods within which and
the terms and conditions upon which such redemption, purchase or
repayment shall be made;
(8) any Events of Default with respect to the Securities of
such Series which may be different from or in addition to those
provided for herein, and any covenants or obligations of the Company
to the Holders of the Securities of such Series different from or in
addition to those set forth herein;
(9) if less than 100% of the principal amount of the
Securities of such Series is payable on acceleration under
Section 7.02 or in bankruptcy under Section 7.09 at any time, a
schedule of or the manner of computing the amounts which are so
payable from time to time;
-12-
(10) the form of the Securities of such Series (which may be,
but which need not be, consistent with the form set forth in
Exhibit A attached hereto);
(11) if other than United States dollars, the currency(ies) in
which payment of the principal of or interest, if any, on the
Securities of that Series shall be payable;
(12) if the principal of or interest, if any, on the
Securities of that Series is to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies other than
that in which the Securities are stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made;
(13) if the amount of payments of principal of or interest, if
any, on the Securities of the Series may be determined with reference
to an index based on a currency or currencies other than that in which
the Securities are stated to be payable, the manner in which such amounts
shall be determined; and
(14) any other terms of the Securities of such Series;
PROVIDED, that such other terms shall not be inconsistent with any
express terms of this Indenture or in conflict with any express terms
of any other Series of Securities which shall be issued and
outstanding.
All Securities of any one Series shall be substantially identical
in form except as to denomination and except as may be otherwise provided in
and pursuant to the Authorizing Resolutions and/or supplemental indenture (if
any) relating thereto.
SECTION 2.03. EXECUTION AND AUTHENTICATION.
Two Officers or an Officer and the Secretary of the Company shall
sign the Securities for the Company by manual or facsimile signature. The
Company's seal shall be reproduced on the Securities and may be in facsimile
form.
If an Officer or a Secretary whose signature is on a Security no
longer holds that office at the time the Trustee authenticates the Security,
the Security shall be valid nevertheless.
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A Security shall not be valid until the Trustee manually signs
the certificate of authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any Series
executed by the Company to the Trustee, together with a Company Order for the
authentication and delivery of such Securities. The Company Order may
provide that the Securities which are the subject thereof shall be
authenticated and delivered by the Trustee upon the telephonic, written or
other order of persons designated in the Company Order, and that such persons
are authorized to specify the terms and conditions of such Securities, to the
extent permitted by the Authorizing Resolution and/or supplemental indenture
(if any) relating thereto. The Trustee shall execute and deliver the
supplemental indenture (if any) relating to said Securities and the Trustee
shall authenticate and deliver said Securities as specified in such Company
Order; PROVIDED that, prior to authentication and delivery of the first
Securities of any Series, the Trustee shall have received:
(1) a copy of the Authorizing Resolution, with a copy of the
form of Security approved thereby attached
thereto, or a supplemental indenture in respect of the issuance of
the Series, executed on behalf of the Company;
(2) an Officers' Certificate to the effect that the Securities
of such Series comply or will comply with the requirements of this
Indenture and the said Authorizing Resolution and/or supplemental
indenture (if any);
(3) an Opinion of Counsel (a) to the effect that (i) the
Securities of such Series, the Authorizing Resolution and/or the
supplemental indenture (if any) relating thereto comply or will
comply with the requirements of this Indenture, and (ii) the
Securities of such Series, when authenticated and delivered by the
Trustee in accordance with the said Company Order, will constitute
valid and binding obligations of the Company enforceable in
accordance with their terms, subject to (A) bankruptcy and other laws
affecting creditors' rights generally as in effect from time to time,
(B) limitations of generally applicable equitable principles and
(C) other exceptions acceptable to the Trustee and its counsel; and
(b)
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relating to such other matters as may reasonably be requested by the
Trustee or its counsel; and
(4) if the Securities to be issued are Original Issue Discount
Securities, an Officers' Certificate setting forth the Yield to
Maturity for the Securities or other information sufficient to
compute amounts due on acceleration, or specifying the manner in
which such amounts are to be determined, provided that such Yield to
Maturity and other facts are not specified in the form of the
Securities.
Subject to Section 8.01 hereof, the Trustee shall be fully
protected in relying upon the documents delivered to it as provided above in
connection with the issuance of any Series of Securities.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section 2.03 if the Trustee, being advised
by counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith by a committee of its Trust Officers shall determine
that such action would expose the Trustee to liability to Holders of
previously issued and outstanding Securities.
Each Security shall be dated the date of its authentication
unless otherwise specified in the Authorizing Resolution and/or supplemental
indenture relating thereto.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities. An authenticating
agent may authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating Agent has the same rights as
an Agent to deal with the Company or an Affiliate of the Company.
The Securities of each Series shall be issuable only in
registered form without coupons and only in denominations of $1,000 and any
integral multiple thereof, or in such other currencies or denominations as
may be specified in, or pursuant to, the Authorizing Resolution and/or
supplemental indenture (if any) relating to the Series.
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SECTION 2.04. REGISTRAR AND PAYING AGENT.
The Company shall cause to be kept a register (the "Security
Register") at an office or agency where Securities may be presented for
registration of transfer or for exchange ("Registrar") and an office or
agency where Securities may be presented for payment ("Paying Agent"). The
Company may have one or more co-Registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
give prompt written notice to the Trustee of the name and address of any such
Agent and the Trustee shall have the right to inspect the Security Register
at all reasonable times and to obtain copies thereof. If the Registrar shall
not be the Trustee in respect of any Series, the Company shall promptly
notify the Registrar as to the amounts and terms of each Security of such
Series which shall be authenticated and delivered hereunder, and as to the
names in which such Securities shall be registered. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall
be entitled to appropriate compensation therefor pursuant to Section 8.07.
The Company initially appoints the Trustee as Registrar and
Paying Agent.
SECTION 2.05. PAYING AGENT TO HOLD MONEY
IN TRUST.
Each Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Securities (whether such money has
been paid to it by the Company or any other obligor on the Securities), and
shall notify the Trustee of any default by the Company (or any other obligor
on the Securities) in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate the money and hold it as
a separate trust fund. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee and account for any funds disbursed
and the Trustee may at any time during the continuance of any payment
default, upon written request to a Paying Agent, require such Paying Agent to
pay all money held by it to the Trustee and to account for any
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funds disbursed. Upon doing so the Paying Agent shall have no further
liability for the money.
SECTION 2.06. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list furnished to it of the names and addresses
of Securityholders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee ten days before each Interest Payment Date and at such
other times as the Trustee may request in writing a list in such form and as
of such date as the Trustee may reasonably require of the names and addresses
of Holders of Securities of any Series and the Company shall otherwise comply
with Section 312(a) of the TIA.
The Trustee shall be entitled to rely upon a certificate of the
Registrar, the Company or such other Paying Agent, as the case may be, as to
the names and addresses of the Holders of Securities of any Series and the
principal amounts and serial numbers of such Securities.
SECTION 2.07. TRANSFER AND EXCHANGE.
When Securities are presented to the Registrar or a co-Registrar
with a request to register the transfer or to exchange them for an equal
principal amount of Securities of the same Series and Stated Maturity of
other authorized denominations, the Registrar shall register the transfer or
make the exchange as requested if its requirements for such transactions are
met. To permit registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Securities at the Registrar's
request. No service charge shall be made to any Holder for any registration
of transfer or exchange, but the Company or the Trustee may require payment
of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchanges pursuant to Section 2.11,
3.08 or 10.05 in which case such transfer taxes or similar governmental
charges shall be paid by the Company).
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security of any Series during a period beginning
at the opening of the day which is 15 Business Days before the day of the
mailing of a notice of redemption of Securities of such Series selected for
redemption
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under Section 3.04 or 4.01 and ending at the close of business on the day of
such mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except, in the case of any
Security to be redeemed in part, the portion thereof not to be redeemed.
SECTION 2.08. REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate
a replacement Security of like tenor, Series and principal amount, bearing a
number not assigned to any Security of the same Series then outstanding, if
the Trustee's requirements are met. If required by the Trustee or the
Company, an indemnity bond must be sufficient in the judgment of the Trustee
to protect the Company, the Trustee or any Agent from any loss which any of
them may suffer if a Security is replaced. The Company may charge such
Holder for its expenses in replacing a Security.
Every replacement Security is an additional obligations of the
Company.
SECTION 2.09. OUTSTANDING SECURITIES.
Securities, or Securities of any particular Series, outstanding
at any time are all such Securities that have been authenticated and
delivered by the Trustee except for those cancelled by it, those delivered to
it for cancellation and those described in this Section as not outstanding.
A Security does not cease to be outstanding because the Company or one of its
Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.08, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Trustee or Paying Agent (other than the Company or a
Subsidiary) holds on the Maturity Date or Redemption Date money sufficient to
pay Securities payable on such date, then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue;
PROVIDED that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provisions
therefor satisfactory to the Trustee have been made.
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SECTION 2.10. TREASURY SECURITIES.
In determining whether the Holders of the required principal
amount of Securities of any Series have concurred in any direction, waiver or
consent (a) the principal amount of an Original Issue Discount Security, if
any, of such Series that shall be deemed to be outstanding for such purposes
shall be the amount that would be due and payable as of the date of
determination upon a declaration of acceleration thereof pursuant to Section
7.02 and (b) Securities of such Series owned by the Company or an Affiliate
of the Company shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities of such Series which the
Trustee actually knows are so owned shall be so disregarded. Upon the
request of the Trustee, the Company shall furnish to the Trustee an Officers'
Certificate identifying all Securities of such Series, if any, known by the
Company to be owned by it or any of its Affiliates.
SECTION 2.11. TEMPORARY SECURITIES.
Until definitive Securities of any Series are ready for delivery,
the Company may prepare and execute and, upon compliance with the
requirements of Section 2.03, the Trustee shall authenticate temporary
Securities of such Series. Temporary Securities of any Series shall be
substantially in the form of definitive Securities of such Series but may
have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Securities for such Series in exchange
for temporary Securities of such Series in an exchange pursuant to Section
2.07.
SECTION 2.12. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee and no one else shall cancel all Securities surrendered for
transfer, exchange, payment or cancellation or for credit against any Sinking
Fund Payment in respect of such Series pursuant to Section 4.02. The Company
may not issue new Securities to replace Securities it has paid or delivered
to the Trustee for cancellation.
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SECTION 2.13. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the
Securities of any Series, it shall pay the defaulted interest, plus any
interest payable on the defaulted interest, to the persons who are Holders
of such Securities on a subsequent special record date ("Special Record
Date") and such term, as used in this Section 2.13 with respect to the
payment of any defaulted interest, shall mean the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted
interest, whether or not such day is a Business Day. At least 15 days
before the Special Record Date, the Company shall mail to each holder of
such Securities a notice that states the Special Record Date, the payment
date and the amount of defaulted interest to be paid.
SECTION 2.14. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent may treat the persons in
whose name any Security is registered as the owners of such Security for
the purpose of receiving payment of principal of and (subject to Section
2.13) interest on such Security and for all other purposes whatsoever,
whether or not such Security shall have matured, and neither the Company,
the Trustee nor any Agent shall be affected by any notice to the contrary.
ARTICLE 3
REDEMPTION
SECTION 3.01. RIGHT OF REDEMPTION.
Redeemable Securities may be redeemed otherwise than through
the operation of the Sinking Fund provided for in Article 4 at the election
of the Company at the times, on the conditions and at the Redemption Prices
specified therein, in (or pursuant to) the Authorizing Resolution relating
thereto or in the supplemental indenture (if any) executed in connection
with the issuance of such Securities to the extent provided therein, any
Redemption Price to be accompanied by accrued interest to the Redemption
Date.
SECTION 3.02. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision
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referred to in Section 3.01, shall be made in accordance with such provision
and this Article.
SECTION 3.03. ELECTION TO REDEEM; NOTICE TO
TRUSTEE.
The Election of the Company to redeem any Securities of any
Series shall be evidenced by a Board Resolution or set forth in an
Officers' Certificate which states that such election has been duly
authorized by all requisite corporate action on the part of the Company.
In case of any redemption at the election of the Company of less than all
of the Securities of such Series the Company shall, at least 60 days prior
to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date
and of the principal amount of Securities of the Series or the several
Series, as the case may be, to be redeemed. In the case of any redemption
of Securities prior to the expiration of any restriction on such redemption
provided in the Securities or elsewhere in this Indenture, the Company
shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 3.04. SELECTION BY TRUSTEE OF SECURITIES
TO BE REDEEMED.
If less than all the Securities of any Series are to be redeemed,
the particular Securities of such Series to be redeemed shall be selected not
more than 90 days prior to the Redemption Date by the Trustee, from the
outstanding Securities of such Series not previously called for redemption,
in compliance with the requirements of the principal national securities
exchange, if any, on which such Securities are listed or, if the Securities
are not listed on a national securities exchange, on a PRO RATA basis or by
lot, as the Trustee deems appropriate in its sole discretion. The Trustee may
select for redemption portions (equal to the minimum authorized denomination
of the Series or any integral multiple thereof) of the principal amount of
such Securities of a denomination larger than such minimum denomination. If
the Company shall so specify, Securities held by the Company or any of its
Subsidiaries or Affiliates shall not be included in the Securities selected
for redemption.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the
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case of any Securities selected for partial redemption, the principal amount
thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Security which has been
or is to be redeemed.
SECTION 3.05. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all outstanding Securities of the Series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) 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, and that interest
thereon shall cease to accrue on and after said date;
(5) that the redemption is for a Sinking Fund, if such is the
case; and
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
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 of and at the expense of the Company.
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SECTION 3.06. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 2.05) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) any accrued interest on,
all the Securities or portions thereof which are to be redeemed on that date.
SECTION 3.07. 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 thereof and from and after such date (unless
the Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of
any such Security for redemption in accordance with said notice such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; PROVIDED, HOWEVER, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities registered as such on the relevant
Regular or Special Record Date according to their terms and the provisions of
such Security and Section 2.13.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the Redemption Date at the rate borne by the
Security or, in the case of Original Issue Discount Securities, at a rate
equal to the Yield to Maturity thereof.
SECTION 3.08. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be
surrendered at the office or agency of the Company maintained for that
purpose pursuant to Section 5.02 (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
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or Securities of the same Series, of any authorized denomination as requested
by such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE 4
SINKING FUND
SECTION 4.01. SINKING FUND PAYMENTS.
As and for a Sinking Fund for the retirement of Sinking Fund
Securities, the Company will, until all such Securities are paid or payment
thereof is duly provided for, deposit in accordance with Section 3.06, at
such times and subject to such terms and conditions as shall be specified in
the provisions of such Securities and the Authorizing Resolution and/or
supplemental indenture (if any) relating thereto, such amounts in cash or
such other Required Currency as shall be required or permitted under such
provisions in order to redeem Securities on the specified Redemption Dates at
a Redemption Price equal to their principal amounts, less in each such case
the amount of any credit against such payment received by the Company under
Section 4.02. Each such Sinking Fund payment shall be applied to the
redemption of Securities on the specified Redemption Date as herein provided.
SECTION 4.02. SATISFACTION OF SINKING FUND
PAYMENTS WITH SECURITIES.
The Company (1) may deliver Securities of the same Series (other
than any Securities of such Series previously called for redemption pursuant
to the Sinking Fund or theretofore applied as a credit against a Sinking Fund
payment) and (2) may apply as a credit Securities of the same Series redeemed
at the election of the Company pursuant to Section 3.01 or through the
operation of the Sinking Fund in any period in excess of the minimum amount
required for such period under Section 4.01 and not theretofore applied as a
credit against a Sinking Fund payment, in each case in satisfaction of all or
any part of any Sinking Fund payment required to be made pursuant to Section
4.01. Each such Security so delivered or applied shall be credited for such
purpose by the Trustee at a Redemption Price equal to its principal amount
or, in the case of an Original Issue Discount Security, its then accreted
value, and the required amount of such Sinking Fund payment in respect of
such Series shall be reduced accordingly.
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SECTION 4.03. REDEMPTION OF SECURITIES FOR
SINKING FUND.
If in any year the Company shall elect to redeem in excess of the
minimum principal amount of Securities of any Series required to be redeemed
pursuant to Section 4.01 or to satisfy all or any part of any Sinking Fund
payment by delivering or crediting Securities of the same Series pursuant to
Section 4.02, then at least 45 days prior to the date on which the Sinking
Fund payment in question shall be due, the Company shall deliver to the
Trustee an Officers' Certificate specifying the amount of the Sinking Fund
payment and the portions thereof which are to be satisfied by payment of cash
or such other Required Currency, by delivery of Securities of such Series or
by crediting Securities of such Series, and, at least 45 days prior to the
Sinking Fund payment date (or such shorter period as shall be approved by the
Trustee), will also deliver to the Trustee the Securities of such Series to
be so delivered. Such Officers' Certificate shall also state that the
Securities forming the basis of any such credit do not include any Securities
which have been redeemed through the operation of the Sinking Fund in the
minimum amount required under Section 4.01 or previously credited against any
Sinking Fund payment. The Trustee shall, upon the receipt of such Officers'
Certificate (or, if it shall not have received such an Officers' Certificate
at least 45 days prior to the Sinking Fund payment date, then following such
45th day), select the Securities of such Series to be redeemed upon the next
Sinking Fund payment date, in the manner specified in Section 3.04, 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 3.05. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 3.06, 3.07 and 3.08.
ARTICLE 5
COVENANTS
SECTION 5.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the
Securities of each Series on the dates and in the manner provided in the
Securities and in this Indenture. An installment of principal or interest
shall be considered paid on the date due if the Trustee or Paying Agent
(other than the Company
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or a Subsidiary) holds on that date money designated for and sufficient to
pay the installment.
The Company shall pay interest on overdue principal at the
respective rates borne by such Securities or, in the case of Original Issue
Discount Securities, at rates equal to the respective Yields to Maturity
thereof; it shall pay interest on overdue installments of interest at the
respective rates borne by such Securities to the extent lawful.
SECTION 5.02. MAINTENANCE OF OFFICE OR AGENCY.
Except as otherwise provided in the Authorizing Resolutions
and/or supplemental indenture (if any) relating to any Series, the Company
will maintain in The City of New York, an office or agency where Securities
may be surrendered for registration of transfer or exchange or for
presentation for payment and where notices and demands to or upon the Company
in respect to the Securities 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.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of any Series or a particular
Series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; PROVIDED, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York, 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.
The Company hereby initially designated the Trustee in The City
of New York, as an agency of the Company in accordance with Section 2.04.
SECTION 5.03. CORPORATE EXISTENCE.
Subject to Article 6 and Section 5.07, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and
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the corporate, partnership or other existence of each material Subsidiary in
accordance with the respective organizational documents of each such
Subsidiary and the rights (charter and statutory) and material franchises of
the Company and its material Subsidiaries; PROVIDED, HOWEVER, that the
Company shall not be required to preserve any such right or franchise, or the
corporate existence of any material Subsidiary, if the Board of Directors or
management of the Company or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries, taken as a whole, and if the loss thereof
is not, and will not be, adverse in any material respect to the Holders.
SECTION 5.04. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all material taxes,
assessments and governmental charges levied or imposed upon the Company or
any Subsidiary or upon the income, profits or property of the Company or any
Subsidiary and (2) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a material Lien upon the property of the
Company or any Subsidiary; PROVIDED, HOWEVER, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings and for which appropriate
provision has been made.
SECTION 5.05. NOTICE OF DEFAULTS.
In the event that any Indebtedness of the Company or any of its
Subsidiaries is declared due and payable before its maturity because of the
occurrence of any default (or any event which, with notice or the lapse of
time, or both, shall constitute such default) under such Indebtedness, the
Company will promptly give written notice to the Trustee of such declaration.
SECTION 5.06. MAINTENANCE OF PROPERTIES.
Subject to Section 5.07, the Company will cause all material
properties owned by or leased to it or any Subsidiary and used or useful in
the conduct of its business or the business of any Subsidiary to be
maintained and kept in normal condition, repair and working order and
supplied with all necessary equipment and will cause to be made all necessary
repairs,
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renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary, so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; PROVIDED, HOWEVER, that nothing in this Section shall prevent the
Company or any Subsidiary from discontinuing the use, operation or
maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Board of Directors or
of the board of directors, board of trustees or managing partners of the
Subsidiary concerned, or of an officer (or other agent employed by the
Company or of any of its Subsidiaries) of the Company or such Subsidiary
having managerial responsibility for any such property, desirable in the
conduct of the business of the Company or any Subsidiary, and if such
discontinuance or disposal is not advantageous in any material respect to the
Holders.
SECTION 5.07. LIQUIDATION.
The Board of Directors or the stockholders of the Company may not
adopt a plan of liquidation which provides for, contemplates or the
effectuation of which is preceded by (i) the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company
otherwise than substantially as an entirety (Article 6 of this Indenture
being the Article which governs any such sale, lease, conveyance or other
disposition substantially as an entirety) and (ii) the distribution of all or
substantially all of the proceeds of such sale, lease, conveyance or other
disposition and of the remaining assets of the Company to the holders of
Capital Stock of the Company, unless the Company shall in connection with the
adoption of such plan make provisions for, or agree that prior to making any
liquidating distributions it will make provisions for, the satisfaction of
the Company's obligations hereunder and under the Securities of each Series
as to the payment of principal and interest. The Company shall be deemed to
make provision for such payments only if (a) the Company delivers in trust to
the Trustee or Paying Agent (other than the Company or a Subsidiary) (i) in
the case of any Securities of any Series denominated in United States
dollars, an amount of cash sufficient to pay principal of and interest on
such outstanding securities at their respective Stated Maturities or U.S.
Government Obligations in an aggregate principal amount equal to the unpaid
principal amount of such Securities and having maturities and interest
payment dates that shall coincide, as nearly as may be practicable, with the
dates that the principal of and interest on such Securities are due and (ii)
in the case
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of any Securities of any Series denominated in any currency other than United
States dollars, an amount of the Required Currency sufficient to pay
principal of and interest on such outstanding Securities at their respective
Stated Maturities or (b) there is an express assumption of the due and
punctual payment of the Company's obligations hereunder and under the
Securities of each Series and the performance and observance of all covenants
and conditions to be performed by the Company hereunder, by the execution and
delivery of a supplemental indenture in form satisfactory to the Trustee by a
person which acquires or will acquire (otherwise than pursuant to a lease) a
portion of the assets of the Company, and which person will have assets
(immediately after the acquisition) and aggregate net earnings (for such
person's four full fiscal quarters immediately preceding the acquisition)
equal to not less than the assets of the Company (immediately preceding the
acquisition) and the aggregate net earnings of the Company (for its four full
fiscal quarters immediately preceding such acquisition), respectively, and
which is organized and existing under the laws of the United States, any
State thereof or the District of Columbia; PROVIDED, HOWEVER, that the
Company shall not make any liquidating distribution until after the Company
shall have certified to the Trustee with an Officers' Certificate and an
Opinion of Counsel at least five days prior to the making of any liquidating
distribution that it has complied with the provisions of this Section 5.07.
SECTION 5.08. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee within 90 days after the
end of each fiscal quarter of the Company an Officers' Certificate stating
whether or not the signers know of any Default or Event of Default by the
Company that occurred during such fiscal quarter and whether all of the
conditions and covenants of the Company have been complied with regardless of
any period of grace or requirement of notice provided under the Indenture.
If they do know of such a Default or Event of Default, the certificate shall
describe the Default or Event of Default, as the case may be, and its status.
The first Officers' Certificate to be delivered pursuant to this Section
5.08 shall be for the fiscal quarter ending immediately after the Original
Issue Date.
SECTION 5.09. SEC REPORTS
(a) The Company shall file with the Trustee within 15 days
after it files them with the SEC copies of the annual
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reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended. The
Company also shall comply with the other provisions of TIA Section 314(a).
(b) So long as the Securities of any Series remain outstanding,
the Company shall cause its annual report to stockholders and any quarterly
or other financial reports furnished by it to stockholders to be mailed to
the Holders of Securities outstanding at the their addresses appearing in the
Security Register.
SECTION 5.10. WAIVER OF STAY, EXTENSION
OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law, which would prohibit or forgive the Company from
paying all or any portion of the principal of and/or interest on the
Securities of any Series as contemplated herein, whenever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture, and (to the extent that it may lawfully do so)
the Company hereby expressly waives all benefit or advantage of any such law,
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee but will suffer and permit the execution
of every such power as though no law had been enacted.
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ARTICLE 6
SUCCESSOR CORPORATION
SECTION 6.01. WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate with or merge with or into
any other corporation or transfer all or substantially all of its
properties and assets as an entirety to any person, unless:
(1) either the Company shall be the continuing person, or the
person (if other than the Company) formed by such consolidation or
into which the Company is merged or to which all or substantially all
of the properties and assets of the Company as an entirety are
transferred shall be a corporation organized and existing under the
laws of the United States or any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, all the obligations of the Company under the
Securities of each Series and this Indenture;
(2) immediately before and immediately after giving effect to
such transaction, no Event of Default and no Default shall have
occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture
comply with this Article and that all conditions precedent herein
provided for relating to such transactions have been complied with.
Notwithstanding the foregoing, any Subsidiary may consolidate
with, merge into or transfer all or part of its properties and assets to
the Company or any other Subsidiary or Subsidiaries.
SECTION 6.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any transfer of all or
substantially all of the properties and assets of the Company in accordance
with Section 6.01, the successor corporation formed by such consolidation
or into which the Company is merged or to which such transfer is made shall
succeed to, and
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be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein.
ARTICLE 7
DEFAULT AND REMEDIES
SECTION 7.01. EVENTS OF DEFAULT.
An "Event of Default" occurs if, with respect to any Series of
Securities, unless it is either inapplicable to a particular Series or it
is specifically deleted or modified in the Authorizing Resolution and/or
supplemental indenture (if any) in respect of the Series, and upon any
other events which may be specified as Events of Default in the Authorizing
Resolution and/or supplemental indenture (if any) in respect of such
Series:
(1) the Company defaults in the payment of interest on any
Securities of such Series when the same becomes due and payable and
the default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of
any Securities of such Series when the same becomes due and payable
at its Maturity or otherwise or defaults in the deposit of any
Sinking Fund installment in respect of such Series, when and as
payable by the terms of Section 4.01 hereof;
(3) the Company fails to comply with any of its other
agreements contained in the Securities of such Series or this
Indenture (other than an agreement relating exclusively to another
Series of Securities) and the default continues for the period and
after the notice specified below;
(4) there shall be a default under any bond, debenture, note
or other evidence of indebtedness for money borrowed or under any
mortgage, indenture or other instrument under which there may be
issued or by which there may be secured or evidenced any indebtedness
for money borrowed by the Company or any Significant Subsidiary or by
any Subsidiaries which in the aggregate would constitute a
Significant Subsidiary or under any guarantee of payment
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by the Company or any Significant Subsidiary or by any Subsidiaries which
in the aggregate would constitute a Significant Subsidiary of
indebtedness for money borrowed, whether such indebtedness or
guarantee now exists or shall hereafter be created, and the effect of
such default is to cause such indebtedness to become due prior to its
stated maturity; PROVIDED, HOWEVER, that no default under this clause
(4) shall exist if all such defaults do not relate to such
indebtedness or such guarantees with an aggregate principal amount in
excess of $ at the time outstanding;
(5) the Company or any Significant Subsidiary or any
Subsidiaries which in the aggregate would constitute a Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against
it in an involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors;
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case or proceeding,
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially all of its
properties, or
(C) orders the liquidation of the Company or any
Significant Subsidiary,
and in each case the order or decree remains unstayed and in effect
for 60 days; or
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(7) final judgments for the payment of money which in the
aggregate exceed $ at the time outstanding shall be rendered
against the Company or any Significant Subsidiary by a court of
competent jurisdiction and shall remain undischarged for a period
(during which execution shall not be effectively stayed) of 60 days
after such judgment becomes final and nonappealable.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, sequestrator
or similar official under any Bankruptcy Law.
For the purposes of this Section 7.01, the term "Significant
Subsidiary" means a Subsidiary, including its Subsidiaries, which meets any
of the following conditions:
(a) the Company's and its other Subsidiaries' investments in
and advances to the Subsidiary exceed 10 percent of the total assets
of the Company and its Subsidiaries consolidated as of the end of any
two of the three most recently completed fiscal years; or
(b) the Company's and its other Subsidiaries' proportionate
share of the total assets of the Subsidiary exceeds 10 percent of the
total assets of the Company and its Subsidiaries consolidated as of
the end of any two of the three most recently completed fiscal years;
or
(c) the Company's and its other Subsidiaries' equity in the
income from continuing operations before income taxes, extraordinary
items and cumulative effect of a change in accounting principles of
the Subsidiary exceeds 10 percent of such income of the Company and
its Subsidiaries consolidated as of the end of any two of the three
most recently completed fiscal years.
A Default under clause (3) is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in principal
amount of the outstanding Securities of such Series notify the Company and
the Trustee, of the Default and the Company does not cure the Default
within 30 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a "Notice
of Default." When a Default is cured, it ceases. Such notice shall be
given by the Trustee if so requested by the
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Holders of at least 25% in principal amount of the Securities of such Series
then outstanding.
Subject to the provisions of Sections 8.01 and 8.02, the
Trustee shall not be charged with knowledge of any Event of Default unless
written notice thereof shall have been given to a Trust Officer at the
corporate trust office of the Trustee by the Company, the Paying Agent, any
Holder or an agent of any Holder.
SECTION 7.02. ACCELERATION.
If an Event of Default (other than an Event of Default specified
in Section 7.01(5) or (6)) with respect to Securities of any Series occurs
and is continuing, the Trustee may, by notice to the Company, or the Holders
of at least 25% in principal amount of such Securities of such Series then
outstanding may, by notice to the Company and the Trustee, and the Trustee
shall, upon the request of such Holders, declare all unpaid principal (or, if
such Securities are Original Issue Discount Securities, such portion of the
principal amount as may then be payable on acceleration as provided in the
terms thereof) and accrued interest to the date of acceleration on all such
Securities of such Series then outstanding (if not then due and payable) to
be due and payable and, upon any such declaration, the same shall become and
be immediately due and payable. If an Event of Default specified in Section
7.01(5) or (6) occurs, all unpaid principal (or, if any Securities are
Original Issue Discount Securities, such portion of the principal amount as
may then be payable on acceleration as provided in the terms thereof) and
accrued interest on all Securities of every Series then outstanding shall
IPSO FACTO become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Securityholder. Upon payment
of such principal amount and interest, all of the Company's obligations under
such Securities of such Series and this Indenture with respect to such
Securities of such Series, other than obligations under Section 8.07, shall
terminate. The Holders of a majority in principal amount of the Securities
of such Series then outstanding by notice to the Trustee may rescind an
acceleration and its consequences if (i) all existing Events of Default,
other than the non-payment of the principal of the Securities of such Series
which has become due solely by such declaration of acceleration, have been
cured or waived, (ii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such
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declaration of acceleration, has been paid, (iii) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction and
(iv) all payments due to the Trustee and any predecessor Trustee under
Section 8.07 have been made. Anything herein contained to the contrary
notwithstanding, in the event of any acceleration pursuant to this Section
7.02, the Company shall not be obligated to pay any premium in connection
with any repayment arising from an Event of Default.
SECTION 7.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to
collect the payment of principal of or interest on the Securities of the
Series as to which the Event of Default shall have occurred or to enforce
the performance of any provision of such Securities or the Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities of the Series as to which the Event of
Default shall have occurred or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All
available remedies are cumulative to the extent permitted by law.
SECTION 7.04. WAIVER OF PAST DEFAULTS.
Subject to Sections 7.07 and 10.02, the Holders of a majority
in principal amount of the outstanding Securities of a Series by written
notice to the Trustee may waive an existing Default or Event of Default and
its consequences, except a Default in the payment of principal of or
interest on any such Security as specified in clauses (1) and (2) of
Section 7.01. When a Default or Event of Default is waived, it is cured
and ceases.
SECTION 7.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the
outstanding Securities of a Series (or, if more than one Series is
affected, of all such Series voting as a single class) may direct the time,
method and place of conducting any proceeding
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for any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with any law or this Indenture that the Trustee determines may
be unduly prejudicial to the rights of another Securityholder, or that may
involve the Trustee in personal liability; provided that the Trustee may take
any other action deemed proper by the Trustee which is not inconsistent with
such direction.
SECTION 7.06. LIMITATION ON SUITS.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities of the applicable Series unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in principal amount of the
outstanding Securities of the Series in respect of which the Event of
Default has occurred make a written request to the Trustee to pursue
a remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the outstanding Securities of such Series do not
give the Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
A Holder of Securities of any Series may not use this Indenture
to prejudice the rights of any other Holders of Securities of that Series
or to obtain a preference or priority over any other Holders of Securities
of that Series.
SECTION 7.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of and interest on the
Security, on or after the respective due
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dates expressed in such Security, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 7.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of interest or principal
specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Securities of the Series in
respect of which the Event of Default has occurred for the whole amount of
principal and accrued interest remaining unpaid, together with interest
overdue on principal or, in the case of Original Issue Discount Securities,
the then accreted value, and to the extent that payment of such interest is
lawful, interest on overdue installments of interest, in each case at the
rate per annum borne by such Securities or, in the case of Original Issue
Discount Securities, at a rate equal to the Yield to Maturity thereof, and
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.
SECTION 7.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Securities), its creditors or its property and
shall be entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the
same, and any Custodian in any such judicial proceedings is hereby authorized
by each Securityholder 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
Securityholders, to pay to the Trustee any amount due to 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
8.07. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement,
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adjustment or composition affecting the Securities of any Series or the
rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Securityholder in any such proceeding.
SECTION 7.10. PRIORITIES.
If the Trustee collects any money or property pursuant to this
Article 7 with respect to Securities of a Series, it shall pay out the
money or property in the following order:
First: to the Trustee for amounts due under Section 8.07;
Second: to Holders for amounts due and unpaid on the
Securities of such Series in respect of which monies have been
collected for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on
such Securities for principal and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix
a record date and payment date for any payment to Securityholders pursuant
to this Section 7.10.
SECTION 7.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing
by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 7.11 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 7.07, or a suit
by any Holder or a group of Holders of more than 10% in principal amount of
the outstanding Securities of all Series (or, if the matter in issue does
not relate to all Series of Securities, then the Holders of 10% in
principal amount of the outstanding Securities of all Series to which such
issue relates) (treated as a single class).
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ARTICLE 8
TRUSTEE
SECTION 8.01. DUTIES OF TRUSTEE.
(a) The Trustee, except during the continuance of an Event of
Default known to it pursuant to Section 7.01, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture.
If an Event of Default known to the Trustee pursuant to Section 7.01 has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default known
to the Trustee pursuant to Section 7.01:
(1) the Trustee need perform only those duties as are
specifically set forth in this Indenture and no others and no implied
covenants or obligations shall be read into this Indenture against
the Trustee;
(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, however, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraphs (a)
and (b) of this Section 8.01;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts;
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(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 7.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of
its rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
8.01.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company in writing.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 8.02. RIGHTS OF TRUSTEE.
Subject to Section 8.01:
(a) the Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person;
the Trustee need not investigate any fact or matter stated in the
document;
(b) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which
shall conform to Section 11.05; the Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on
such certificate or opinion;
(c) the Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any
agent appointed with due care;
(d) the Trustee shall not be liable for any action it takes
or omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers;
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(e) the Trustee may consult with counsel and the advice or
opinion of such counsel as to matters of law shall be full and
complete authorization and protection in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance
with the advice or opinion of such counsel; and
(f) 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 the Holders, including, without limitation, the
duties, rights and powers specified in Section 7.02 hereof, unless
such Holders have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by the Trustee in compliance with such request or action.
SECTION 8.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. However, the Trustee is subject
to Sections 8.10 and 8.11.
SECTION 8.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities of any Series, it shall not be
accountable for the recitals contained in this Indenture or for the Company's
use of the proceeds from the Securities of any Series, and it shall not be
responsible for any statement in the Securities of any Series, or in any
prospectus used to sell the Securities of any Series, other than its
certificate of authentication.
SECTION 8.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing with
respect of any Series of Securities, and if it is actually known to the
Trustee pursuant to Section 7.01 hereof, the Trustee shall mail to each
Holder of the Securities of such Series notice of the Default or Event of
Default within 60 days after it occurs. Except in the case of a Default or
Event of Default in payment of principal of or interest on any Security or in
the payment of any Sinking Fund installment, the Trustee
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may withhold such notice if and so long as a committee of its Trust Officers
in good faith determines that withholding the notice is in the interest of
Securityholders.
SECTION 8.06. REPORTS BY TRUSTEE TO HOLDERS.
The Trustee shall transmit to the Holder such reports concerning,
among other things, the Trustee and its action under this Indenture as may be
required pursuant to the TIA at the time and in compliance with TIA
Section 313(a). The Trustee also shall comply with TIA Sections 313(b)(2)
and 313(c).
A copy of each such report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange, if any,
on which the Securities of any Series are listed.
The Company shall notify the Trustee if the Securities of any
Series become listed on any stock exchange.
SECTION 8.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed upon in writing by the Company and the
Trustee. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse
the Trustee upon request for all reasonable disbursements, expenses and
advances incurred or made by it. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability incurred by it in connection with the
administration of this trust and its duties hereunder, including the
reasonable expenses of defending itself against any claim of liability
arising hereunder. The Trustee shall notify the Company promptly of any
claim asserted against the Trustee for which it may seek indemnity. The
Company need not pay for any settlement made without its written consent,
which consent shall not be unreasonably withheld. The Company need not
reimburse any expense or indemnify against any loss or liability incurred by
the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section 8.07,
the Trustee shall have a lien prior to the
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Securities of each Series on all money or property held or collected by the
Trustee, in its capacity as Trustee, except money or property held in trust
to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 7.01(5) or (6) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 8.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company in writing.
The Holders of a majority in principal amount of the outstanding Securities
of all Series (voting as a single class) may remove the Trustee by so
notifying the Trustee in writing and may appoint a successor Trustee with the
Company's consent. Pursuant to a Company Order, the Company may remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the Securities of all Series
(voting as a single class) may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall transfer, after payment of all sums then
owing to the Trustee pursuant to Section 8.07, all property held by it as
Trustee to the successor Trustee, subject to the lien provided in Section
8.07, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the
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rights, powers and duties of the Trustee under this Indenture. A successor
Trustee shall mail notice of its succession to each Securityholder.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company
or the Holders of at least 10% in principal amount of the outstanding
Securities of all Series (voting as a single class) may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 8.10, any
Securityholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee. Any
successor Trustee shall comply with TIA Section 310(a)(5).
Notwithstanding replacement of the Trustee pursuant to this
Section 8.08, the Company's obligations under Section 8.07 shall continue for
the benefit of the retiring Trustee.
SECTION 8.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to,
another corporation, the resulting, surviving or transferee corporation
without any further act shall be the successor Trustee.
SECTION 8.10. ELIGIBILITY DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall have combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA
Section 310(b), including the provision permitted by the second sentence of
TIA Section 310(b).
SECTION 8.11. PREFERENTIAL COLLECTION OF
CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding from
the operation of 311(a) any creditor relationship listed in TIA Section 311(b).
A Trustee who has resigned or been removed shall be subject to TIA Section
311(a) to the extent indicated.
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ARTICLE 9
DISCHARGE OF INDENTURE
SECTION 9.01. TERMINATION OF COMPANY'S OBLIGATIONS.
The Company may terminate its obligations under the Securities of
any Series and this Indenture with respect to such Series, except those
obligations referred to in the immediately succeeding paragraph, (a) if all
Securities of such Series previously authenticated and delivered (other than
destroyed, lost or stolen Securities of such Series which have been replaced
or paid or Securities of such Series for whose payment money or securities
have theretofore been held in trust and thereafter repaid to the Company, as
provided in Section 9.03) have been delivered to the Trustee for cancellation
and the Company has paid all sums payable by it hereunder, or (b) if,
following the date on which the Company shall have given notice to the
Trustee of its intention to defease all of the Securities of such Series, the
Company has irrevocably deposited or caused to be deposited with the Trustee
or a Paying Agent (other than the Company or a Subsidiary), under the terms
of an irrevocable trust agreement in form and substance satisfactory to the
Trustee and any such Paying Agent, as trust funds in trust solely for the
benefit of the Holders for that purpose (i) in the case of any Securities of
any Series denominated in United States dollars, an amount of cash sufficient
to pay principal of and interest on such outstanding Securities at their
respective Stated Maturities, or direct non-callable obligations of, or
non-callable obligations guaranteed by, the United States of America for the
payment of which guarantee or obligation the full faith and credit of the
United States is pledged, including but not limited to depository receipts
issued by a bank as custodian with respect to any such security held by the
custodian for the benefit of the holder of such depository receipt ("U.S.
Government Obligations"), maturing as to principal and interest in such
amounts and at such times as are sufficient without consideration of any
reinvestment of such interest, to pay principal of and interest on such
outstanding Securities at their respective Stated Maturities and (ii) in the
case of any Securities of any Series denominated in any currency other than
United States dollars, an amount of the Required Currency sufficient to pay
principal of and interest on such outstanding Securities at their respective
Stated maturities; PROVIDED that the Trustee or such Paying Agent shall have
been irrevocably instructed to apply such cash, the proceeds of such U.S.
Government Obligations or the Required
-46-
Currency, as the case may be, to the payment of said principal and interest
with respect to the Securities of such Series; and PROVIDED, FURTHER, that if
such irrevocable deposit in trust with the Trustee of cash, U.S. Government
Obligations or the Required Currency, as the case may be, is made on or prior
to one year from the Stated Maturity for payment of principal of the
Securities of the applicable Series, the Company shall have delivered to the
Trustee either an Opinion of Counsel with no material qualifications in form
and substance satisfactory to the Trustee to the effect that Holders of such
Securities (i) will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit (and the defeasance contemplated in
connection therewith) and (ii) will be subject to Federal income tax on the
same amounts and in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred, or an applicable
favorable ruling to that effect received from or published by the Internal
Revenue Service.
Notwithstanding the foregoing paragraph, the Company's
obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 5.01, 5.02, 8.07, 8.08,
9.03 and 9.04, and except as otherwise provided in the Authorizing Resolution
and/or the supplemental indenture (if any) in respect of any Series, shall
survive until the Securities are no longer outstanding. Thereafter, the
Company's obligations in Sections 8.07, 9.03 and 9.04 shall survive.
After any such irrevocable deposit the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of the applicable Series and this Indenture with respect to such
Series except for those surviving obligations specified above.
SECTION 9.02. APPLICATION OF TRUST MONEY.
The Trustee or Paying Agent shall hold in trust cash, U.S.
Government Obligations or the Required Currency, as the case may be,
deposited with it pursuant to Section 9.01, and shall apply the deposited
cash, the money from U.S. Government Obligations or the Required Currency, as
the case may be, in accordance with this Indenture to the payment of
principal of and interest on the Securities.
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SECTION 9.03. REPAYMENT TO COMPANY.
Subject to Section 9.01, the Trustee and the Paying Agent shall
promptly pay to the Company upon request any excess money held by them at
any time. Subject to the provisions of applicable law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them
for the payment of principal or interest that remains unclaimed for two
years, PROVIDED, HOWEVER, the Trustee or such Paying Agent before being
required to make any payment may at the expense of the Company cause to be
published once in a newspaper of general circulation in The City of New
York or mail to each Holder entitled to such money notice that such money
remains unclaimed and that, after a date specified therein which shall be
at least 30 days from the date of such publication or mailing, any
unclaimed balance of such money then remaining will be repaid to the
Company. After payment to the Company, the Trustee shall be released from
all further liability with respect to such money and Securityholders
entitled to money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another person.
SECTION 9.04. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any cash,
U.S. Government Obligations or the Required Currency, as the case may be,
in accordance with Section 9.01 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 applicable
Series) and the Securities of the applicable Series shall be revived and
reinstated as though no deposit had occurred pursuant to Section 9.01 until
such time as the Trustee or Paying Agent is permitted to apply all such
cash, U.S. Government Obligations and Required Currency, as the case may
be, in accordance with Section 9.01; PROVIDED, HOWEVER, that if the Company
has made any payment of interest on or principal of any Securities of any
Series because of the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Securities to receive
such payment from the cash, U.S. Government Obligations or the Required
Currency, as the case may be, held by the Trustee or Paying Agent.
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SECTION 9.05. INDEMNITY FOR U.S.
GOVERNMENT OBLIGATIONS.
The Company shall pay, and shall indemnify the Trustee against,
any tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Section 9.01 or the principal and interest
received on such U.S. Government Obligations.
ARTICLE 10
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. WITHOUT CONSENT OF HOLDERS.
The Company, when authorized by a Board Resolution, and the
Trustee may amend or supplement this Indenture or the Securities of any
Series without notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 6;
(3) to provide for uncertificated Securities in addition to
certificated Securities;
(4) to secure the Securities in connection with Section 5.11;
(5) to make any change that does not adversely affect the
rights of any Securityholder of such Series;
(6) to provide for the issuance and the terms of any
particular Series of Securities, the rights and obligations of the
Company and the Holders of Securities of such Series, the form or
forms of the Securities of such Series and such other matters in
connection therewith as the Board of Directors of the Company shall
consider appropriate, including, without limitation, provisions for
(a) additional or different covenants, restrictions or conditions
applicable to such Series, (b) additional or different Events of
Default in respect of such Series, (c) a longer or shorter period of
grace and/or notice in respect of any provision applicable to such
Series than is provided in Section 7.01, (d) immediate enforcement of
any Event of Default in respect of such Series or (e) limita-
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tions upon the remedies available in respect of any Events of Default in
respect of such Series or upon the rights of the holders of
Securities of such Series to waive any such Event of Default;
PROVIDED, that this paragraph (6) shall not be deemed to require the
execution of a supplemental indenture to provide for the issuance of
any Series of Securities unless the same shall be provided for in the
Authorizing Resolution relating thereto; or
(7) to provide for a separate Trustee for one or more Series.
SECTION 10.02. WITH CONSENT OF HOLDERS.
Subject to Section 7.07, with the written consent of the
Holders of at least a majority in principal amount of the outstanding
Securities of all Series affected thereby (voting as a single class), the
Company, when authorized by a Board Resolution, and the Trustee may amend
or supplement this Indenture or such Securities without notice to any
Securityholder. Subject to Section 7.07, the Holders of a majority in
principal amount of the outstanding Securities of all Series affected
thereby (voting as a single class) may waive compliance by the Company with
any provision of this Indenture or such Securities without notice to any
Securityholder; PROVIDED, that, only the holders of a majority in principal
amount of Securities of a particular Series may waive compliance with a
provision of this Indenture or the Securities of such Series having
applicability solely to such Series. However, without the consent of each
Securityholder affected, an amendment, supplement or waiver, including a
waiver pursuant to Section 7.04, may not:
(1) reduce the amount of Securities of such Series or all
Series (voting as a single class), as the case may be, whose Holders
must consent to an amendment, supplement or waiver;
(2) reduce the rate or change the Stated Maturity for payment
of interest on any Security;
(3) reduce the principal or any premium payable upon the
redemption of or change the Stated Maturity of any Security;
(4) waive a default in the payment of the principal of or
interest on any Security;
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(5) make any changes in Section 7.04, 7.07 or the third
sentence of this Section 10.02; or
(6) make any Security payable in money other than that stated
in the Security.
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 the Indenture of the Holders of Securities of any other
Series.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure
of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 10.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 10.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it
by a Holder is a continuing consent by the Holder and every subsequent
Holder of such Security or portion of such Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent
is not made on any Security. However, any such Holder or subsequent Holder
may revoke in writing the consent as to his Security or portion of a
Security. Such revocation shall be effective only if the Trustee receives
the written notice of revocation before the date the amendment, supplement
or waiver becomes effective.
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The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver which shall be at least 30 days prior to
the first solicitation of such consent. If a record date is fixed, then
notwithstanding the last two sentences of the immediately preceding
paragraph, those persons who were Holders at such record date (or their
duly designated proxies), and only those persons, shall be entitled to
consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such persons continue to be Holders after
such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder of a Security of such Series, unless it makes a
change described in any of clauses (1) through (6) of Section 9.02. In
that case the amendment, supplement or waiver shall bind each Holder of a
Security who has consented to it and every subsequent Holder of a Security
or portion of a Security of the same Series that evidences the same debt as
the consenting Holder's Security.
SECTION 10.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it
to the Trustee. The Trustee may place an appropriate notation on the
Security about the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Security shall issue and the Trustee shall authenticate a
new Security of the same Series that reflects the changed terms.
SECTION 10.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article 10 is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, execute any
such amendment, supplement or waiver which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
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ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
SECTION 11.02. NOTICES.
Any notice or communication shall be sufficiently given if in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
Forest Oil Corporation
0000 Xxxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attention:
if to the Trustee:
Attention: Corporate Trust Department
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be
mailed to him at his address as it appears on the Security Register and
shall be sufficiently given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given
only when
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received, if a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 11.03. COMMUNICATIONS BY
HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b)
with other Securityholders with respect to their rights under this Indenture
or the Securities of an applicable Series. The Company, the Trustee, the
Registrar and any other person shall have the protection of TIA Section 312(c).
SECTION 11.04. CERTIFICATE AND OPINION
AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. STATEMENTS REQUIRED IN
CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the
Officers' Certificate required by Section 5.08, shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has
made such examination or investigation as is
-54-
necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with; PROVIDED,
HOWEVER, that with respect to matters of fact an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public
officials.
SECTION 11.06. RULES BY TRUSTEE,
PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a
meeting of Securityholders. The Paying Agent or Registrar may make
reasonable rules for its functions.
SECTION 11.07. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday or a day on which
banking institutions in New York, New York are not required to be open. If
a payment date is a Legal Holiday at a place of payment, payment may be
made at the place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.
SECTION 11.08. GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE
AND THE SECURITIES WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 11.09. NO ADVERSE INTERPRETATION
OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 11.10. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect
of or by reason of such
-55-
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability.
SECTION 11.11. SUCCESSORS.
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 11.12. DUPLICATE ORIGINALS.
The parties may sign any number of copies of the Indenture.
Each signed copy shall be an original, but all of them together represent
the same agreement.
SECTION 11.13. SEPARABILITY.
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, and a Holder shall have no claim therefor against any
party hereto.
SECTION 11.14. ACTION OF HOLDERS WHEN SECURITIES ARE
DENOMINATED IN DIFFERENT CURRENCIES.
Whenever any action is to be taken hereunder by the Holders of
two or more Series of Securities denominated in different currencies, then,
for the purposes of determining the principal amount of Securities held by
such Holders, the aggregate principal amount of the Securities denominated
in a currency other than United States dollars shall be deemed to be that
amount of United States dollars that could be obtained for such principal
amount on the basis of the spot rate of exchange for such currency as
determined by the Company or by an authorized exchange rate agent and
evidenced to the Trustee by an Officers' Certificate as of the date the
taking of such action by the Holders of the requisite percentage in
principal amount of the Securities is evidenced to the Trustee. An
exchange rate agent may be authorized in advance or from time to time by
the Company, and may be the Trustee or its Affiliate. Any such
determination by the Company or by any such exchange rate agent shall be
conclusive and binding on all Holders and the Trustee, and neither the
Company nor such exchange rate agent shall be liable therefor in the
absence of bad faith.
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SECTION 11.15. MONIES OF DIFFERENT
CURRENCIES TO BE SEGREGATED.
The Trustee shall segregate monies, funds, and accounts held by
the Trustee hereunder in one currency from any monies, funds or accounts in
any other currencies, notwithstanding any provision herein which would
otherwise permit the Trustee to commingle such amounts.
SECTION 11.16. PAYMENT TO BE IN PROPER CURRENCY.
Each reference in any Security, or in the Authorizing
Resolution and/or supplemental indenture, if any, relating thereto, to any
currency shall be of the essence. In the case of any Security denominated
in any currency (the "Required Currency") other than United States dollars,
except as otherwise provided therein or in the related Authorizing
Resolution and/or supplemental indenture, if any, the obligation of the
Company to make any payment of principal of or interest thereon shall not
be discharged or satisfied by any tender by the Company, or recovery by the
Trustee, in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the Trustee timely
holding the full amount of the Required Currency. The costs and risks of
any such exchange, including without limitations, the risks of delay and
exchange rate fluctuation, shall be borne by the Company; the Company shall
remain fully liable for any shortfall or delinquency in the full amount of
Required Currency then due and payable, and in no circumstances shall the
Trustee be liable therefor. The Company hereby waives any defense of
payment based upon any such tender or recovery which is not in the Required
Currency, or which, when exchanged for the Required Currency by the
Trustee, is less than the full amount of Required Currency then due and
payable.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the date first written above.
FOREST OIL CORPORATION
[SEAL]
Attest: By:
--------------------------- ---------------------------
as Trustee
[SEAL]
Attest: By:
--------------------------- ---------------------------
EXHIBIT A
[FORM OF FACE OF SECURITY]
[If the Holder of this Security (as indicated below) is The
Depository Trust Company ("DTC") or a nominee of DTC, this Security is a
Global Security and the following two legends apply:
Unless this Security is presented by an authorized representative
of The Depository Trust Company ("DTC"), 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
to the issuer or its agent for registration of transfer, exchange or
payment,l and such Security issued is registered in the name of CEDE & CO.,
or such other name as requested by an authorized representative of DTC, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL, since the registered owner hereof, CEDE & CO., has an
interest herein.
Unless it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred except as
a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC or by DTC or any such nominee to a successor of DTC or a
nominee of such successor.]
[The following is to be included if the Security is an Original
Issue Discount Security:]
[FOR PURPOSES XX XXXXXXX 0000 XXX 0000 XX XXX XXXXXX XXXXXX
INTERNAL REVENUE CODE OF 1986, AS AMENDED: (I) THE ISSUE DATE OF THIS
SECURITY IS ____________; (II) THE YIELD TO MATURITY IS ___%; (III) THE
ORIGINAL ISSUE DISCOUNT PER $______ FACE AMOUNT AT WHICH THE SECURITY IS
ISSUED IS $______; AND (IV) THE [EXACT] [APPROXIMATE] METHOD HAS BEEN USED
TO DETERMINE YIELD FOR THE ACCRUAL PERIOD BEGINNING ____________ AND ENDING
____________ AND THE AMOUNT OF THE ORIGINAL ISSUE DISCOUNT PER $______ FACE
AMOUNT ALLOCABLE TO THE ACCRUAL PERIOD BEGINNING ____________ AND ENDING
____________ IS $______].
-2-
FOREST OIL CORPORATION
[Title of Security]
Rate of Interest Maturity Date Original Issue Date
---------------- ------------- -------------------
No.____________ $____________
Forest Oil Corporation, a corporation duly organized and
existing under the laws of the State of New York (herein called the
"Company"), for value received, hereby promises to pay to
or registered assigns, the principal sum of on the Maturity Date
shown above, and to pay interest thereon, at the annual rate of interest
shown above, from the Original Issue Date shown above or from the most
recent Interest Payment Date (as hereinafter defined) to which interest has
been paid or duly provided for, payable semi-annually on and
of each year and at maturity (an "Interest Payment Date"),
commencing on the first such date after the Original Issue Date, except
that if the Original Issue Date is on or after a Regular Record Date but
before the next Interest Payment Date, interest payments will commence on
the second Interest Payment Date following the Original Issue Date.
[reference to currency[ies] of payment and currency exchange
arrangements, if applicable.]
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be
paid to the person in whose name this [name of Security] is registered at
the close of business on the Regular Record Date for any such Interest
Payment Date, which shall be the fifteenth calendar day (whether or not a
Business Day) preceding the applicable Interest Payment Date. Any such
interest not so punctually paid or duly provided for, and any interest
payable on such defaulted interest (to the extent lawful), will forthwith
cease to be payable to the Holder on such Regular Record Date and shall be
paid to the person in whose name this [name of Security] is registered at
the close of business on a special record date for the payment of such
defaulted interest to be fixed by the Company, notice of which shall be
given to Holders of [name of Series] not less than 15 days prior to such
special record date. Payment of the
-3-
principal of and interest on this [name of Security] will be made at the
agency of the Company maintained for that purpose in
[New York, New York or other place of payment] and at any other office or
agency maintained by the Company for such purpose, in
[reference to United States dollars or other currency of payment]; PROVIDED,
HOWEVER, that at the option of the Company payment of interest, other than
interest due on the Maturity Date, may be made by check mailed to the address
of the person entitled thereto as such address shall appear in the Security
Register. [Include the following, if applicable:] Payments on the Maturity
Date will be made in immediately available funds against presentment of this
[name of Security].
Reference is hereby made to the further provisions of this
[name of Security] set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
[name of Security] shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the FOREST OIL CORPORATION has caused this
instrument to be executed in its corporate name by the facsimile signature of
its duly authorized officers and has caused a facsimile of its corporate seal
to be affixed hereunto or imprinted hereon.
FOREST OIL CORPORATION
ATTEST: By:
-------------------------- -------------------------------
[Assistant] Secretary [Title of Officer]
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DATED:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the [name of Series] referred to in the
within-mentioned Indenture.
By:
-------------------------------
Authorized Signatory
[REVERSE SIDE]
FOREST OIL CORPORATION
[Name of Security]
This [name of Security] is one of a duly authorized issue of
[name of Securities] of the Company (which term includes any successor
corporation under the Indenture hereinafter referred to) designated as its
[title of Series] (the "[name of Series]"), issued or to be
issued pursuant to an Indenture, dated as of , 199_ (the
"Indenture"), between the Company and _________________ as Trustee (the
"Trustee," which term includes any successor trustee under the Indenture);
and under [reference to Authorizing Resolution and/or supplemental
indenture (if any) relating to the Series]. The terms of this [name of
Security] include those stated in the Indenture and [reference to
Authorizing Resolution and/or supplemental indenture (if any) relating to
the Series] and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as in effect on the date of the Indenture.
Reference is hereby made to the Indenture and all [further] supplemental
indentures thereto for a statement of the respective rights, limitation of
rights, duties and immunities thereunder of the Company, the Trustee and
the Holders and of the terms upon which the [name of Security] are, and are
to be, authenticated and delivered.
This [name of Series] is a Series of Securities issued or to be
issued by the Company under the Indenture, and this Series is limited in
aggregate principal amount to $ . The Indenture provides that the
Securities of the
-5-
Company referred to therein ("Securities"), including the [name of Series],
may be issued in one or more Series, which different Series may be issued in
such aggregate principal amounts and on such terms (including, but not
limited to, terms relating to interest rate or rates, provisions for
determining such interest rate or rates and adjustments thereto, maturity,
redemption (optional and mandatory), sinking fund, covenants and Events of
Default) as may be provided in or pursuant to the Authorizing Resolutions
and/or supplemental indenture (if any) relating to the several Series.
The [name of Series] are subordinated in right of payment, in
the manner and to the extent set forth in the Indenture, to the prior
payment in full of all Senior Indebtedness (as defined in the Indenture).
Each Holder by accepting a Security agrees to such subordination and
authorizes the Trustee to give it effect.
[The following to be included if the Securities are not
redeemable prior to maturity.]
This [name of Security] may not be redeemed prior to its
Maturity Date.
[The following paragraph, or other appropriate redemption
provisions, to be included if the Securities are Redeemable Securities:]
The [name of Series] are subject to redemption upon not less
than 30 nor more than 60 days' notice by mail, [the following clause to be
included if there is a Sinking Fund:] [(1) on [annual Sinking Fund
Redemption Date] in each year commencing with the year [year of first
Sinking Fund payment] through operation of the Sinking Fund at a Redemption
Price equal to their principal amount and (2)] [at any time or from time to
time] in whole or in part, at the election of the Company at a Redemption
Price equal to the percentage set forth below of the principal amount to be
redeemed for the respective twelve-month periods beginning
[ ] of the years indicated:
[Schedule of Redemption Prices]
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and thereafter at 100% of the principal amount thereof, together in each
case with accrued interest to the Redemption Date.
[The following paragraph, or other appropriate Sinking Fund
provision, to be included if there is a Sinking Fund for the Series:]
The Sinking Fund provides for the redemption on [first Sinking
Fund Redemption Date] and on [annual Sinking Fund Redemption Date] in each
year thereafter through [year of final Sinking Fund date] of not less than
[minimum required Sinking Fund redemption amount] principal amount not more
than [maximum permitted Sinking Fund redemption amount] principal amount of
[name of Series], [name of Series] purchased, acquired or redeemed by the
Company otherwise than by redemption through the Sinking Fund may be credited
against Sinking Fund requirements to the extent not previously so credited.
[The following paragraph to be included if the Securities are
Redeemable Securities or Sinking Fund Securities:]
If an event of redemption of this [name of Security] in part
only, a new [name of Security] or [name of Series] for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
surrender hereof.
[The following paragraph to be included if the Securities are
not Original Issue Discount Securities:]
If an Event of Default, as defined in the Indenture and in the
Authorizing Resolution and/or supplemental indenture (if any) relating to
the [name of Series] (if there shall be any additional Events of Default
specified in respect of the [name of Series]), shall occur and be
continuing, the principal of all the [name of Series] may be declared due
and payable in the manner and with the effect provided in the Indenture.
[If the Securities are Original Issue Discount Securities,
insert schedule as to amounts which are payable on acceleration under
Section 7.02 and provable in bankruptcy under Section 7.09 from time to
time.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the [name of
Series] under the Indenture at any time
-7-
by the Company and the Trustee with the consent of the Holders of a majority
in aggregate principal amount of the Securities affected thereby, voting as a
single class (which may include the [name of Series]), at the time
outstanding. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate principal amount of the Securities at
the time outstanding to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this
[name of Security] shall be conclusive and binding upon such Holder and upon
all future Holders of this [name of Security] and of any [name of Security]
issued upon the registration of transfer hereof or in exchange herefor in
lieu hereof, whether or not notation of such consent or waiver is made upon
this [name of Security].
The Indenture provides that no Holder may pursue any remedy under
the Indenture unless the Trustee shall have failed to act after notice of an
Event of Default and written request by Holders of at least 25% in principal
amount of the [name of Securities]of the applicable Series and the offer to
the Trustee of indemnity satisfactory to it; however, such provision does not
affect the right to xxx for enforcement of any overdue payment on any
Security.
No reference herein to the Indenture and no provision of this
[name of Security] or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the principal
of and interest on this [name of Security] at the times, places and rates,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this [name of Security] is registrable
in the Security Register upon surrender of this [name of Security] for
registration of transfer at the agency of the Company provided for that
purpose duly endorsed by, or accompanied by a written instrument of
transfer in substantially the form accompanying this [name of Security]
duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new [name of Series], of authorized
denominations and for the same aggregate principal amount, will be issued
to the designated transferee or transferees.
The [name of Series] are issuable only in registered form
without coupons in denominations of [currency and minimum
-8-
denomination] and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the
[name of Series] are exchangeable for a like aggregate principal amount of
[name of Series] of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges pursuant to Section 2.11, 3.08
or 10.05 in which case such transfer taxes or similar governmental charges
shall be paid by the Company).
Prior to due presentment of this [name of Security] for
registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the person in whose name this [name of
Security] is registered as the owner hereof for all purposes, whether or
not this [name of Security] be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
[Reference to Foreign Currencies]
All terms used in this [name of Security] which are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
Customary abbreviations may be used in the name of a [name of
Security] holder or any assignee, such as: TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right
of survivorship and not as tenants in common), CUST (= Custodian) and
U/G/M/A (= Uniform Gifts to Minors Act).
The Company will furnish to any [name of Security] holder of
record, upon written request, without charge, a copy of the Indenture.
Requests may be made to: Forest Oil Corporation, 0000 Xxxxxxxx, Xxxxx
0000, Xxxxxx, Xxxxxxxx 00000, Attention: Corporate Secretary.
-9-
ASSIGNMENT FORM
If you the holder want to assign this [name of Security], fill
in the form below and have your signature guaranteed:
I or we assign and transfer this [name of Security] to:
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(Print or type name, address and zip code and
social security or tax ID number of assignees)
and irrevocably appoint, ______________________________________ agent to
transfer this [name of Security] on the books of the Company. The agent
may substitute another to act for him.
Dated: Signed:
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(Sign exactly as name appears
on other side of this [name of
Security])
Signature Guarantee:
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NOTICE: Signature(s) must be guaranteed by a member firm of the New York
Stock Exchange or a commercial bank or trust company.
