1
EXHIBIT 4.3
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NEWFIELD EXPLORATION COMPANY
to
FIRST UNION NATIONAL BANK,
as Trustee
_________________________________________________________
JUNIOR CONVERTIBLE SUBORDINATED INDENTURE
Dated as of August 13, 1999
_________________________________________________________
6 1/2% JUNIOR SUBORDINATED CONVERTIBLE DEBENTURES,
SERIES A DUE 2029
________________________________________________________________________________
2
Reconciliation and tie between the Trust Indenture Act of 1939
(including cross-references to provisions of Sections 310 to and including 317
which, pursuant to Section 318(c) of the Trust Indenture Act of 1939, as
amended by the Trust Reform Act of 1990, are a part of and govern the Junior
Convertible Subordinated Indenture whether or not physically contained therein)
and the Junior Convertible Subordinated Indenture, dated as of August 13, 1999.
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
--------------------- -------------
Section 310(a)(1), (2) and (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8, 6.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(a)
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2(a), 7.2(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(a), 7.3(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(c)
Section 314(a)(1), (2),(3) and (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.14
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4(f)
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.7
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Convertible Subordinated Indenture.
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Compliance Certificate and Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 1.3 Forms of Documents Delivered to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.4 Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.5 Notices, Etc. to Trustee and Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.6 Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.7 Conflict with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.8 Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.9 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.10 Separability Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.11 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.12 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.13 Non-Business Days . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 2
DEBENTURE FORM
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.2 Form of Face of Debenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.3 Form of Reverse of Debenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.4 Notice of Shortened Maturity Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.5 Additional Provisions Required in Global Debenture . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.6 Form of Trustee's Certificate of Authentication . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 2.7 Initial Issuance to Property Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE 3
THE DEBENTURES
SECTION 3.1 Amount of Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.2 Denominations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.3 Execution, Authentication, Delivery and Dating . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.4 Temporary Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 3.5 Registration, Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debentures . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 3.7 Payment of Interest; Interest Rights Preserved . . . . . . . . . . . . . . . . . . . . . . . . 28
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SECTION 3.8 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.9 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 3.10 Computation of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.11 Deferrals of Interest Payment Dates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.12 Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.13 Agreed Tax Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.14 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3.15 Global Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 4.2 Application of Trust Money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
ARTICLE 5
REMEDIES
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee . . . . . . . . . . . . . . . . 36
SECTION 5.4 Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 5.5 Trustee May Enforce Claim Without Possession of Debentures . . . . . . . . . . . . . . . . . . 38
SECTION 5.6 Application of Money Collected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.7 Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.9 Restoration of Rights and Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.10 Rights and Remedies Cumulative . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.12 Control by Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 5.13 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5.14 Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 5.15 Waiver of Usury, Stay, or Extension Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
ARTICLE 6
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.2 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.3 Certain Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 6.4 Not Responsible for Recitals or Issuance of Debentures . . . . . . . . . . . . . . . . . . . . 45
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SECTION 6.5 May Hold Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.6 Money Held in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.7 Compensation and Reimbursement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
SECTION 6.8 Disqualification; Conflicting Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.9 Corporate Trustee Required; Eligibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 6.10 Resignation and Removal; Appointment of Successor . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.11 Acceptance of Appointment by Successor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business . . . . . . . . . . . . . . . . . . 49
SECTION 6.13 Preferential Collection of Claims Against Company . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 6.14 Appointment of Authenticating Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Names and Addresses of Holders . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 7.2 Preservation of Information; Communications to Holders . . . . . . . . . . . . . . . . . . . . 52
SECTION 7.3 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 7.4 Reports by Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms . . . . . . . . . . . . . . . . . . . . . 53
SECTION 8.2 Successor Corporation Substituted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 9.2 Supplemental Indentures with Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 9.3 Execution of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
SECTION 9.4 Effect of Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 9.5 Conformity with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 9.6 Reference in Debentures to Supplemental Indentures . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE 10
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
SECTION 10.3 Money for Debenture Payments to Be Held in Trust . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.4 Payment of Taxes and Other Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
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SECTION 10.5 Statement as to Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.6 Waiver of Certain Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.7 Additional Sums . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.8 Additional Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
SECTION 10.9 Payment of Expenses of the Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE 11
REDEMPTION OR EXCHANGE OF DEBENTURES
SECTION 11.1 Election to Redeem; Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 11.2 Selection of Debentures to Be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 11.3 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 11.4 Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 11.5 Debentures Payable on Redemption Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 11.6 Debentures Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 11.7 Mandatory Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 11.8 Optional Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
SECTION 11.9 Exchange of Trust Securities for Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ARTICLE 12
SUBORDINATION OF DEBENTURES
SECTION 12.1 Debentures Subordinate to Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 12.2 Payment Over of Proceeds Upon Dissolution, Etc . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 12.3 Prior Payment to Senior Debt upon Acceleration of Debentures . . . . . . . . . . . . . . . . . 67
SECTION 12.4 No Payment When Senior Debt in Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 12.5 Payment Permitted If No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 12.6 Subrogation to Rights of Holders of Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 12.7 Provisions Solely to Define Relative Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 12.8 Trustee to Effectuate Subordination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 12.9 No Waiver of Subordination Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 12.10 Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 12.11 Reliance on Judicial Order or Certificate of Liquidating Agent . . . . . . . . . . . . . . . . 70
SECTION 12.12 Trustee Not Fiduciary for Holders of Senior Debt . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 12.13 Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 12.14 Article Applicable to Paying Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 12.15 Certain Conversions or Exchanges Deemed Payment . . . . . . . . . . . . . . . . . . . . . . . . 71
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ARTICLE 13
CONVERSION OF DEBENTURES
SECTION 13.1 Conversion Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 13.2 Conversion Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
SECTION 13.3 Expiration of Conversion Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 13.4 Conversion Price Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
SECTION 13.5 Fundamental Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
SECTION 13.6 Notice of Adjustments of Conversion Price . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 13.7 Prior Notice of Certain Events . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 13.8 Certain Additional Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
SECTION 13.9 Restrictions on Company Common Stock Issuable Upon Conversion . . . . . . . . . . . . . . . . . 83
SECTION 13.10 Trustee Not Responsible for Determining Conversion Price
or Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
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JUNIOR CONVERTIBLE SUBORDINATED INDENTURE, dated as of August
13, 1999, between NEWFIELD EXPLORATION COMPANY, a Delaware corporation (the
"Company"), having its principal office at 000 X. Xxx Xxxxxxx Xxxxxxx X., Xxxxx
0000, Xxxxxxx, Xxxxx 00000, and FIRST UNION NATIONAL BANK, a national banking
association, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance of its 6 1/2% Junior
Subordinated Convertible Debentures, Series A (the "Debentures") of
substantially the tenor hereinafter provided which evidence loans made to the
Company of the proceeds from the issuance by Newfield Financial Trust I, a
Delaware business trust (the "Trust"), of preferred undivided beneficial
interests in the Trust (the "Preferred Securities") and common undivided
beneficial interests in the Trust (the "Common Securities"), and to provide the
terms and conditions upon which the Debentures are to be authenticated, issued
and delivered; and
WHEREAS, all things necessary to make the Debentures, when
executed by the Company and authenticated and delivered hereunder and duly
issued by the Company, the valid obligations of the Company, and to make this
Indenture a valid agreement of the Company, in accordance with their and its
terms, have been done;
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Debentures by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Debentures, as
follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles, and the term "generally accepted
accounting principles" with respect to any computation required or
permitted
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hereunder shall mean such accounting principles which are generally
accepted at the date or time of such computation; and
(d) the words "herein", "hereof" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Additional Interest" means the interest, if any, that shall
accrue on any interest on the Debentures that is in arrears beyond the Interest
Payment Date therefor (without regard to any Extension Period) or not paid
during any Extension Period, which in either case (to the extent permitted by
law) shall accrue at the stated rate per annum specified or determined as
specified in such Debenture and compounded quarterly.
"Additional Sums" has the meaning specified in Section 10.7.
"Additional Taxes" means the sum of any additional taxes,
duties and other governmental charges to which the Trust has become subject
from time to time as a result of a Tax Event.
"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; provided, however, that an Affiliate
of the Company shall be deemed not to include the Trust to which Debentures
have been issued. For the purposes of this definition, "control" when used
with respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Applicable Price" means (i) in the case of a Non-Stock
Fundamental Change in which the holders of Company Common Stock receive only
cash, the amount of cash received by the holder of one share of Company Common
Stock and (ii) in the event of any other Non-Stock Fundamental Change or any
Common Stock Fundamental Change, the average of the Closing Prices for Company
Common Stock during the ten trading days prior to and including the record date
for the determination of the holders of Company Common Stock entitled to
receive such securities, cash, or other property in connection with such
Non-Stock Fundamental Change or Common Stock Fundamental Change or, if there is
no such record date, the date upon which the holders of Company Common Stock
shall have the right to receive such securities, cash, or other property, in
each case as adjusted in good faith by the Company to appropriately reflect any
of the events referred to in Section 13.4.
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"Authenticating Agent" means any Person authorized by the
Trustee pursuant to Section 6.14 to act on behalf of the Trustee to
authenticate Debentures.
"Board of Directors" means either the board of directors of
the Company or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of the resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors, or such committee of the Board of Directors
or officers of the Company to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday or Sunday
or a day on which banking institutions in the City of New York are authorized
or required by law or executive order to remain closed or a day on which the
Corporate Trust Office of the Trustee, or the principal office of the Property
Trustee under the Trust Agreement, is closed for business.
"Closing Price" means on any day, the last reported sales
price on such day or, in case no sale takes place on such day, the average of
the reported closing bid and asked prices in each case on the NYSE Consolidated
Transactions Tape or, if the stock is not listed or admitted to trading on such
Exchange, on the principal national securities exchange on which such stock is
listed or admitted to trading or, if not listed or admitted to trading on any
national securities exchange, the average of the closing bid and asked prices
as furnished by any NYSE member firm, selected by the Trustee for that purpose.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Common Securities" has the meaning specified in the first
recital of this Indenture.
"Common Stock Fundamental Change" means any Fundamental Change
in which more than 50% of the value (as determined in good faith by the Board
of Directors) of the consideration received by holders of Company Common Stock
consists of common stock that for each of the ten consecutive trading days
prior to the record date for the determination of the holders of Company Common
Stock entitled to receive such common stock or, if there is no such record
date, the date on which the holders of Company Common Stock shall have the
right to receive such common stock, has been admitted for listing or admitted
for listing subject to notice of issuance on a national securities exchange or
quoted on the Nasdaq National Market; provided, however, that a Fundamental
Change shall not be a Common Stock Fundamental Change unless either (i) the
Company continues to exist after the occurrence of such Fundamental Change and
the outstanding Preferred Securities continue to exist as outstanding Preferred
Securities or (ii) not later than the
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occurrence of such Fundamental Change, the outstanding Preferred Securities are
converted into or exchanged for shares of convertible preferred stock of an
entity succeeding to the business of the Company or a subsidiary thereof, which
convertible preferred stock has powers, preferences, and relative,
participating, optional, or other rights, and qualifications, limitations, and
restrictions, substantially similar to those of the Preferred Securities.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Common Stock" means common stock, par value $.01 per
share, of the Company.
"Company Request" and "Company Order" means, respectively, the
written request or order signed in the name of the Company by its Chairman of
the Board, its Vice Chairman, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Controller, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Conversion Agent" has the meaning specified in Section 13.2.
"Conversion Date" has the meaning specified in Section 13.2.
"Conversion Price" has the meaning specified in Section 13.1.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office shall be located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxx
Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 or such other address as the
Trustee may give notice thereof to the Company, Attention: Corporate Trustee
Administration.
"Current Market Price" means for any day the last reported
sale price, regular way, on such day of Company Common Stock, or, if no sale
takes place on such day, the average of the reported closing bid and asked
prices on such day, regular way, in either case as reported on the NYSE
Consolidated Transactions Tape, or, if Company Common Stock is not listed or
admitted to trading on the NYSE on such day, on the principal national
securities exchange on which Company Common Stock is listed or admitted to
trading, if Company Common Stock is listed on a national securities exchange,
or the Nasdaq National Market, or, if Company Common Stock is not quoted or
admitted to trading on such quotation system, on the principal quotation system
on which Company Common Stock may be listed or admitted to trading or quoted,
or, if not listed or admitted to trading or quoted on any national securities
exchange or quotation system, the average of the closing bid and asked prices
of Company Common Stock in the over-the-counter market on the day in question
as reported by the National Quotation Bureau Incorporated, or a similar
generally accepted reporting service, or, if not so available in such manner,
as furnished by any NYSE member
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firm selected from time to time by the Board of Directors for that purpose or,
if not so available in such manner, as otherwise determined in good faith by
the Board of Directors.
"Debentures" or "Debenture" means any debt securities or debt
security, as the case may be, authenticated and delivered under this Indenture.
"Debt" means, with respect to any Person, whether recourse is
to all or a portion of the assets of such Person and whether or not contingent,
(i) every obligation of such Person for money borrowed; (ii) every obligation
of such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with the acquisition
of property, assets or businesses; (iii) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person; (iv) every obligation of such
Person issued or assumed as the deferred purchase price of property or services
(but excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business); (v) every capital lease obligation of such
Person, and (vi) every obligation of the type referred to in clauses (i)
through (v) of another Person and all dividends of another Person the payment
of which, in either case, such Person has guaranteed or is responsible for or
liable, directly or indirectly, as obligor or otherwise.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to the Debentures issuable or
issued in whole or in part in the form of one or more Global Debentures, the
Person designated as Depositary by the Company (or any successor thereto).
"Dollar" means the currency of the United States of America as
at the time of payment is legal tender for the payment of public and private
debts.
"Events of Default" has the meaning specified in Article 5.
"Expiration Time" has the meaning specified in Section
13.4(e).
"Extension Period" has the meaning specified in Section 3.11.
"Fundamental Change" means the occurrence of any Transaction
or event in connection with a plan pursuant to which all or substantially all
of Company Common Stock shall be exchanged for, converted into, acquired for,
or constitute solely the right to receive securities, cash, or other property
(whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization, or
otherwise); provided, that, in the case of a plan involving more than one such
Transaction or event, for purposes of adjustment of the conversion price, such
Fundamental Change shall be deemed to have occurred when substantially all
Company Common Stock shall be exchanged for, converted into, or acquired for or
constitute solely the right to receive securities, cash, or other property, but
the adjustment shall
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be based upon consideration that a holder of Company Common Stock received in
such Transaction or event as a result of which more than 50% of Company Common
Stock shall have been exchanged for, converted into, or acquired for or
constitute solely the right to receive securities, cash, or other property.
"Global Debenture" means a Debenture in the form prescribed in
Sections 2.2 and 2.3 evidencing all or part of the Debentures, issued to the
Depositary or its nominee, and registered in the name of such Depositary or its
nominee.
"Guarantee" means the guarantee by the Company of
distributions on the Preferred Securities of the Trust to the extent provided
in the Guarantee Agreement, substantially in the form attached hereto as Annex
C, as amended from time to time.
"Holder" means a Person in whose name a Debenture is
registered in the Securities Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means as to the Debentures the date
specified in the Debentures as the fixed date on which an installment of
interest on such Debentures is due and payable.
"Interest Rate" means the rate of interest specified or
determined as specified in each Debenture as being the rate of interest payable
on such Debenture.
"Investment Company Event" means, in respect of the Trust, the
receipt by the Property Trustee, on behalf of the Trust, of an Opinion of
Counsel, rendered by a law firm having a national tax and securities practice
(which Opinion of Counsel shall not have been rescinded by such law firm), to
the effect that, as a result of the occurrence of a change in law or regulation
or a change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority (a "Change
in 1940 Act Law"), there is more than an insubstantial risk that the Trust is
or will be considered an "investment company" that is required to be registered
under the 1940 Act, which Change in 1940 Act Law becomes effective on or after
the date of original issuance of the Preferred Securities of the Trust.
"Junior Subordinated Payment" has the meaning specified in
Section 12.2.
"Maturity" when used with respect to the Debentures, means the
date on which the principal of the Debentures become due and payable as herein
provided, whether at the Maturity Date or by declaration of acceleration, call
or redemption or otherwise.
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"Maturity Date" has the meaning specified in Section 2.2.
"1940 Act" means the Investment Company Act of 1940, as
amended.
"Non Book-Entry Preferred Securities" has the meaning
specified in Section 3.15.
"Non-Stock Fundamental Change" means any Fundamental Change
other than a Common Stock Fundamental Change.
"Notice of Conversion" means the notice given by a Holder of
Preferred Securities to the Conversion Agent directing the Conversion Agent to
exchange such Preferred Securities for Debentures and to convert such
Debentures into Company Common Stock on behalf of such holder.
"Notice of Default" has the meaning specified in Section
5.1(c).
"NYSE" means the New York Stock Exchange.
"Officers' Certificate" means a certificate signed by (i) the
Chairman, Chief Executive Officer, President or a Vice President, and by (ii)
the Treasurer, an Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for the Company, the Trust, or the Trustee, but who may be an
employee thereof, and who shall be reasonably acceptable to the Trustee.
"Outstanding" means, as of the date of determination, all
Debentures theretofore authenticated and delivered under this Indenture,
except:
(i) Debentures theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debentures for whose payment money in the necessary
amount has been theretofore irrevocably deposited with the Trustee or
any Paying Agent in trust for the Holders of such Debentures; and
(iii) Debentures in substitution for or in lieu of which
other Debentures have been authenticated and delivered or which have
been paid pursuant to Section 3.6, or which have been converted into
Company Common Stock pursuant to Section 13.1, unless proof
satisfactory to the Trustee is presented that any Debentures are held
by Holders in whose hands such Debentures are valid, binding and legal
obligations of the Company; provided, however, that in determining
whether the Holders of the requisite principal amount of Outstanding
Debentures have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Debentures owned by the Company
or any other obligor upon
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the Debentures or any Affiliate of the Company or such other obligor
shall be disregarded and deemed not to be outstanding, except that, in
determining whether the Trustee shall be fully protected in
conclusively relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Debentures which a
Responsible Officer of the Trustee actually knows to be so owned shall
be so disregarded. Debentures so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with
respect to such Debentures and that the pledgee is not the Company or
any other obligor upon the Debentures or any Affiliate of the Company
or such other obligor. Upon request of the Trustee, the Company shall
furnish to the Trustee promptly an Officers' Certificate listing and
identifying all Debentures, if any, known by the Company to be owned
or held by or for the account of the Company, or any other obligor on
the Debentures or any Affiliate of the Company or such obligor, and,
subject to the provisions of Section 6.1, the Trustee shall be
entitled to accept such Officers' Certificate as conclusive evidence
of the facts therein set forth and of the fact that all Debentures not
listed therein are Outstanding for the purpose of any such
determination.
"Paying Agent" means the Trustee or any Person authorized by
the Company to pay the principal of or interest on any Debentures on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Predecessor Debenture" of any particular Debenture means
every previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture, and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 3.6 in lieu
of a lost, destroyed or stolen Debenture shall be deemed to evidence the same
debt as the lost, destroyed or stolen Debenture.
"Preferred Securities" has the meaning specified in the first
recital of this Indenture.
"Pricing Agreement" means the Pricing Agreement dated August
9, 1999 by and among Newfield Financial Trust I, Newfield Exploration Company
and the Underwriters.
"Proceeding" has the meaning specified in Section 12.2.
"Property Trustee" means, in respect of the Trust, the
commercial bank or trust company identified as the "Property Trustee" in the
Trust Agreement, solely in its capacity as Property Trustee of the Trust under
the Trust Agreement and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as
therein provided.
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"Purchased Shares" has the meaning specified in Section
13.4(e).
"Purchaser Stock Price" means, with respect to any Common
Stock Fundamental Change, the average of the Closing Prices for common stock
received in such Common Stock Fundamental Change for the ten consecutive
trading days prior to and including the record date for the determination of
the holders of common stock entitled to receive such common stock or if there
is no such record date, the date on which the holders of common stock shall
have the right to receive such common stock, as adjusted in good faith by the
Company to appropriately reflect any of the events referred to in Section 13.4.
"Redemption Date", when used with respect to any Debenture to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price" has the meaning specified in Section
11.3(b).
"Reference Date" has the meaning specified in Section 13.4(c).
"Reference Market Price" initially means $19.54 (which is an
amount equal to 66 2/3% of the reported last sales price for Company Common
Stock on the NYSE Consolidated Transactions Tape on August 9, 1999), and in the
event of any adjustment of the Conversion Price other than as a result of a
Non-Stock Fundamental Change, the Reference Market Price shall also be adjusted
so that the ratio of the Reference Market Price to the Conversion Price after
giving effect to any such adjustment shall always be the same as the ratio of
the initial Reference Market Price to the initial Conversion Price of the
Debentures.
"Regular Record Date" means for the interest payable on any
Interest Payment Date the fifteenth day (whether or not a Business Day) next
preceding such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee
means any officer assigned to the Trustee's Corporate Trust Office, including
any managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and having direct responsibility for the administration of this
Indenture, and also, with respect to a particular matter, any other officer, to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Rights" has the meaning specified in Section 13.2(f).
"Rights Agreement" has the meaning specified in Section
13.2(f).
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 3.5.
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"Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on
Debt of the Company, whether incurred on or prior to the date of this Indenture
or thereafter incurred, unless, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to the Debentures or to other
Debt which is pari passu with, or subordinated to, the Debentures, provided,
however, that Senior Debt shall not be deemed to include (a) any Debt of the
Company which when incurred and, without respect to any election under Section
1111(b) of the Bankruptcy Reform Act of 1978, was without recourse to the
Company, (b) any Debt of the Company to any of its Subsidiaries, (c) Debt to
any employee of the Company, (d) any liability for taxes, (e) Debt or other
monetary obligations to trade creditors created or assumed by the Company or
any of its Subsidiaries in the ordinary course of business in connection with
the obtaining of goods, materials or services and (f) the Debentures.
"Special Event" means a Tax Event or an Investment Company
Event.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Subsidiary" means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50% of the outstanding shares of voting stock.
For purposes of this definition, "voting stock" means stock which has voting
power for the election of directors, whether at all times or only so long as no
senior class of stock has such voting power by reason of any contingency.
"Tax Event" means the receipt by the Property Trustee on
behalf of the Trust of an Opinion of Counsel, rendered by a law firm having a
national tax and securities practice (which Opinion of Counsel shall not have
been rescinded by such law firm), to the effect that, as a result of any
amendment to, or change (including any announced prospective change) in, the
laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein affecting taxation, or as a
result of any official administrative pronouncement or judicial decision
interpreting or applying such laws or regulations, which amendment or change is
effective or such pronouncement or decision is announced on or after the date
of issuance of the Preferred Securities of the Trust and does not pertain to
the use of the proceeds of the issuance of the Debentures, there is more than
an insubstantial risk in each case after the date thereof that (i) the Trust
is, or will be within 90 days after the date thereof, subject to United States
federal income tax with respect to income received or accrued on the
Debentures, (ii) interest payable by the Company on the Debentures is not, or
within 90 days of the date thereof, will not be, deductible, in whole or in
part, for United States federal income tax purposes or (iii) the Trust is, or
will be within 90 days of the date thereof, subject to more than a de minimis
amount of other taxes, duties, assessments or other governmental charges.
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"Tax Redemption Price" means with respect to each $50
principal amount of Debentures, (i) if the Debentures are redeemed as a result
of the occurrence of a Tax Event prior to August 15, 2002, the greatest of (a)
the principal amount of the Debenture, (b) the average of the highest and
lowest reported sale prices, regular way, of the Preferred Securities over the
five trading days immediately prior to the day on which notice of such
redemption is given, and (c) the average of the highest and lowest reported
sale prices, regular way, of Preferred Securities on the trading day
immediately prior to the day on which notice of such redemption is given, or
(ii) if the Debentures are redeemed as a result of the occurrence of a Tax
Event on or after August 15, 2002, the principal amount of such Debenture. For
purposes of clauses (b) and (c) above, if the Debentures have been distributed
in exchange for Preferred Securities, the references to sales prices shall be
deemed to refer to the sales prices of the Debentures.
"Transaction" has the meaning specified in Section 13.5(a).
"Trust" has the meaning specified in the first recital of this
Indenture.
"Trust Agreement" means the Trust Agreement substantially in
the form attached hereto as Annex A, as amended by the form of Amended and
Restated Trust Agreement substantially in the form attached hereto as Annex B,
as amended from time to time.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder if
at any time there is more than one such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939
(15 U.S.C. Section 77aaa-77bbb), as amended and as in effect on the date as of
this Indenture.
"Trust Securities" means the Common Securities and Preferred
Securities.
"Underwriters" with respect to the Preferred Securities, means
Xxxxxxx, Xxxxx & Co., Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxx Xxxxxxxx Xxxxxxx, a
division of Xxxx Xxxxxxxx Incorporated.
"Vice President", when used with respect to the Company, means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president."
SECTION 1.2 Compliance Certificate and Opinions. Upon
any application or request by the Company to the Trustee to take any action
under any provision of this Indenture, the Company shall furnish to the Trustee
an Officers' Certificate stating that all conditions precedent (including
covenants, compliance with which constitutes a condition precedent), if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel
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stating that in the opinion of such counsel all such conditions precedent
(including covenants compliance with which constitute a condition precedent),
if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished. Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than the
certificates provided pursuant to Section 10.5) shall include:
(a) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) 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;
(c) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(d) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied with.
SECTION 1.3 Forms of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered
by an opinion of, any specified Person, it is not necessary that all such
matters be certified by, or covered by the opinion of, only one such Person, or
that they be so certified or covered by only one document, but one such Person
may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give
an opinion as to such matters in one or several documents. Any certificate or
opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
matters upon which his certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form one
instrument.
SECTION 1.4 Acts of Holders.
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(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to
be given to or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such
Holders in person or by an agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments is or are
delivered to the Trustee, and, where it is hereby expressly required,
to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.1) conclusive in favor of the Trustee and
the Company and any agent of the Trustee or the Company, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a
witness of such execution or by the certificate of any notary public
or other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by
a Person acting in other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority.
(c) The fact and date of the execution by any Person of
any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the
Trustee deems sufficient and in accordance with such reasonable rules
as the Trustee may determine.
(d) The ownership of Debentures shall be proved by the
Securities Register.
(e) Any request, demand, authorization, direction,
notice, consent, waiver or other action by the Holder of any Debenture
shall bind every future Holder of the same Debenture and the Holder of
every Debenture issued upon the transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done or suffered to
be done by the Trustee or the Company in reliance thereon, whether or
not notation of such action is made upon such Debenture.
(f) The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to
take any action under this Indenture by vote or consent. Except as
otherwise provided herein, such record date shall be the later of 30
days prior to the first solicitation of such consent or vote or the
date of the most recent list of Holders furnished to the Trustee
pursuant to Section 7.1 prior to such solicitation. If a record date
is fixed, those persons who were Holders at such record date (or their
duly designated proxies), and only those persons, shall be entitled to
take such action by vote or consent or to revoke any vote or consent
previously given, whether or not such persons continue to be Holders
after such record date.
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(g) Without limiting the foregoing, a Holder entitled
hereunder to give or take any such action with regard to any
particular Debenture may do so with regard to all or any part of the
principal amount of such Debenture or by one or more duly appointed
agents each of which may do so pursuant to such appointment with
regard to all or any different part of such principal amount.
SECTION 1.5 Notices, Etc. to Trustee and Company. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose (except as otherwise provided in Section
5.1 hereof) hereunder if in writing and mailed, first class, postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee
by the Company.
SECTION 1.6 Notice to Holders; Waiver. Where this
Indenture provides for notice to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first class postage prepaid, to each Holder affected by such event,
at the address of such Holder as it appears in the Securities Register on the
date such notice is mailed, which shall be not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice.
In any case where notice to Holders is given by mail, neither the failure to
mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver. In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 1.7 Conflict with Trust Indenture Act. If any
provision of this Indenture limits, qualifies or conflicts with a provision of
the Trust Indenture Act that is required under such act to be a part of and
govern this Indenture, the latter provision shall control. If any provision of
this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the former provision shall be deemed to
apply.
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SECTION 1.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 1.10 Separability Clause. In case any provision
in this Indenture or in the Debentures shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 1.11 Benefits of Indenture. Nothing in this
Indenture or in the Debentures, express or implied, shall give to any Person,
other than the parties thereto, any Paying Agent and their successors and
assigns and the Holders of the Debentures, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.12 Governing Law. This Indenture and the
Debentures shall be governed by and construed in accordance with the laws of
the State of New York without regard to its principles of conflicts of laws.
SECTION 1.13 Non-Business Days. Except as otherwise
provided in Section 11.5, in any case where any Interest Payment Date,
Redemption Date, or Maturity Date of any Debenture shall not be a Business Day,
then (notwithstanding any other provision of this Indenture or the Debentures)
payment of interest or principal payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay) with the same force and effect as if made
on the Interest Payment Date or Redemption Date or at the Maturity Date,
provided that no interest shall accrue for the period from and after such
Interest Payment Date or Redemption Date or Maturity Date.
ARTICLE 2
DEBENTURE FORM
SECTION 2.1 Forms Generally. The Debentures and the
Trustee's certificate of authentication shall be in substantially the forms
sets forth in this Article and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with applicable tax laws or the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Debentures, as evidenced by their execution of the Debentures.
The definitive Debentures shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods, if
required by any securities exchange on which the Debentures may be listed, on a
steel engraved border or steel engraved borders or may be produced
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in any other manner permitted by the rules of any securities exchange on which
the Debentures may be listed, all as determined by the officers executing such
Debentures, as evidenced by their execution of such Debentures.
SECTION 2.2 Form of Face of Debenture. The form of the
face of a Debenture shall be substantially as follows:
6 1/2% Junior Subordinated Convertible Debenture, Series
A due August 15, 2029
No. __ $
Newfield Exploration Company, a corporation organized and
existing under the laws of Delaware (the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ___________, or registered assigns, the
principal sum of $___________ on August 15, 2029 (the "Maturity Date"),
provided, if a Tax Event occurs, then the Company will have the right (a) prior
to the dissolution of Newfield Financial Trust I, to shorten the Maturity Date
of the Debentures to the minimum extent required, but not earlier than August
13, 2014, or (b) to direct the Property Trustee to dissolve Newfield Financial
Trust I (if not previously dissolved) and shorten the Maturity Date of the
Debentures to the minimum extent required, but not earlier than August 13,
2014, in each case such that in the Opinion of Counsel to the Company, which
counsel shall have a national tax and securities practice, after shortening the
Maturity Date, interest paid on the Debentures will be deductible for federal
income tax purposes, and to pay interest on said principal sum from August 13,
1999 or from the most recent interest payment date (each such date, an
"Interest Payment Date") on which interest has been paid or duly provided for,
quarterly plus Additional Interest, if any, until the principal hereof is paid
or duly provided for or made available for payment subject to deferral as set
forth herein in arrears on February 15, May 15, August 15 and November 15 of
each year, commencing November 15, 1999, at the rate of 6 1/2% per annum.
Reference is hereby made to the further provisions of this
Debenture 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 or
facsimile signature, this Debenture shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed.
Dated:
By:_____________________________
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SECTION 2.3 Form of Reverse of Debenture. The form of
the reverse of a Debenture shall be substantially as follows:
This Debenture is one of a duly authorized issue of Debentures
of the Company (the "Debentures") limited to the aggregate principal amount of
$___________ issued under a Junior Convertible Subordinated Indenture, dated as
of August 13, 1999 (the "Indenture"), between the Company and First Union
National Association, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which the Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Trustee, the Company and the Holders of the Debentures, and of the terms
upon which the Debentures are, and are to be, authenticated and delivered. All
terms used in this Debenture that are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
The amount of interest payable for any period will be computed
on the basis of a 360-day year of twelve 30-day months. For periods less than
a full month, interest shall be computed on the actual number of elapsed days
over 360 days. In the event that any date on which interest is payable on this
Debenture is not a Business Day, then payment of the interest on such date will
be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay) with the same force and
effect as if made on the date the payment was originally payable. A "Business
Day" shall mean any day other than a Saturday or a Sunday, or a day on which
banking institutions in the City of New York are authorized or required by law
or executive order to remain closed or a day on which the Corporate Trust
Office of the Trustee, or the principal office of the Property Trustee under
the Trust Agreement, is closed for business. The interest installment so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture, be paid to the Person in whose name this
Debenture (or one or more Predecessor Debentures, as defined in the Indenture)
is registered at the close of business on the Regular Record Date for such
interest installment, which shall be the date which is the Business Day next
preceding such Interest Payment Date. Any such interest installment not so
punctually paid or duly provided for shall forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in
whose name this Debenture (or one or more Predecessor Debentures) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Debentures not less than 10 days prior to such Special Record Date,
or be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debentures may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
The Company shall have the right at any time during the term
of this Debenture, from time to time, to extend the interest payment period of
such Debenture for up to 20 consecutive quarters with respect to each deferral
period (each such deferral period, an "Extension Period"),
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during which periods the Company shall have the right not to make payments of
interest on any Interest Payment Date, and at the end of which the Company
shall pay all interest then accrued and unpaid (together with Additional
Interest, if any, thereon to the extent permitted by applicable law); provided
that during any such Extension Period, the Company will not, and will not
permit any Subsidiary to, (a) declare or pay any dividends or distributions on,
or redeem, purchase, acquire or make a liquidation payment with respect to, any
shares of the Company's capital stock or (b) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees of indebtedness for money borrowed) of the
Company that rank pari passu with or junior to the Debentures (other than (i)
any dividend, redemption, liquidation, interest, principal or guarantee payment
by the Company where the payment is made by way of securities (including
capital stock) that rank pari passu with or junior to the securities on which
such dividend, redemption, interest, principal or guarantee payment is being
made, (ii) redemptions or purchases of any rights pursuant to any Rights
Agreement and the declaration of a dividend of such rights or the issuance of
preferred stock under such plans in the future, (iii) payments under the
Guarantee, (iv) purchases of Company Common Stock related to the issuance of
Company Common Stock under any of the Company's benefit plans for its
directors, officers or employees, (v) as a result of a reclassification of the
Company's capital stock or the exchange or conversion of one series or class of
the Company's capital stock for another series or class of the Company's
capital stock and (vi) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged). Prior to the
termination of any such Extension Period, the Company may further extend the
interest payment period, provided that no Extension Period shall exceed 20
consecutive quarters or extend beyond the Maturity Date of this Debenture.
Upon the termination of any such Extension Period and upon the payment of all
accrued and unpaid interest and any Additional Interest then due, the Company
may elect to begin a new Extension Period, subject to the above requirements.
No interest shall be due and payable during an Extension Period except at the
end thereof. The Company shall give the Trustee, the Property Trustee and the
Administrative Trustees notice of its selection of an Extension Period at least
one Business Day prior to the earlier of (i) the record date for the date the
distributions on the Preferred Securities (or if no Preferred Securities are
outstanding, for the date interest on the Debentures) would have been payable
except for the election to begin such Extension Period or (ii) the date the
Property Trustee of Newfield Financial Trust I is (or if no Preferred
Securities are outstanding, the Debenture Trustee is) required to give notice
to NYSE or other applicable self-regulatory organizations or to holders of such
Preferred Securities (or, if no Preferred Securities are outstanding, to the
Holders of such Debentures) of the record date.
Payment of the principal of (and premium, if any) and interest
on this Debenture will be made [INSERT, IF A GLOBAL SECURITY IS ISSUED - TO THE
DEPOSITARY TRUST COMPANY OR ITS NOMINEE] [INSERT IF SECURITIES IN DEFINITIVE
FORM ARE ISSUED - AT THE OFFICE OR AGENCY OF THE PAYING AGENT MAINTAINED FOR
THAT PURPOSE IN THE UNITED STATES], in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts provided, however, that at the option of the Company
payment of interest may be made (a) by check mailed to the address of the
Person entitled thereto as such address shall appear in the Securities Register
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or (b) by wire transfer in immediately available funds at such place and to
such account as may be designated by the Person entitled thereto as specified
in the Securities Register.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and subject in right of payments to the
prior payment in full of all Senior Debt (as defined in the Indenture), and
this Debenture is issued subject to the provisions of the Indenture with
respect thereto. Each Holder of this Debenture, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs the
Trustee on his behalf to take such actions as may be necessary or appropriate
to effectuate the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes. Each Holder hereof, by his
acceptance hereof, waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of Senior Debt,
whether now outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.
At any time on or after August 15, 2002, the Company may, at
its option, subject to the terms and conditions of Article 11 of the Indenture,
redeem this Debenture in whole at any time or in part from time to time, at the
Redemption Prices set forth in Section 11.8 of the Indenture.
In the event of redemption of this Debenture in part only, a
new Debenture or Debentures for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the cancellation hereof.
If a Special Event shall occur and be continuing, this
Debenture shall be exchangeable for Preferred Securities in accordance with
Section 11.9 of the Indenture or, in certain circumstances, redeemable by the
Company in accordance with Section 11.8 of the Indenture.
Subject to the terms and conditions set forth in Article 13 of
the Indenture, this Debenture is convertible, at the option of the Holder,
hereof into shares of Company Common Stock.
If an Event of Default shall occur and be continuing, the
principal of the Debentures may be declared due and payable in the manner, with
the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for satisfaction, discharge
and defeasance of the entire indebtedness of this Debenture upon compliance by
the Company with certain conditions set forth in the Indenture.
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 Debentures to
be affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in principal amount of the Debentures.
The Indenture also contains provisions permitting Holders of specified
percentages in principal amount of the Debentures at the time Outstanding, on
behalf of the Holders of all Debentures, to waive
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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 shall be conclusive and binding upon the Holder of this Debenture and
upon all future Holders of this Debenture and of any Debenture issued upon the
registration of transfer hereof or in exchange therefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Debenture.
As provided in and subject to the provisions of the Indenture,
if an Event of Default shall occur and be continuing, then and in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debentures may declare the principal amount of all the Debentures
to be due and payable immediately, by a notice in writing to the Company (and
to the Trustee if given by Holders), provided that, if an Event of Default
shall occur and be continuing, the Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Debentures fail to declare the principal
of all the Debentures to be immediately due and payable, the holders of at
least 25% in aggregate liquidation amount of the Preferred Securities then
outstanding shall have such right by a notice in writing to the Company and the
Trustee; and upon any such declaration such principal amount (or specified
amount) of and the accrued interest (including any Additional Interest) on all
the Debentures shall become immediately due and payable, provided that the
payment of principal and interest (including any Additional Interest) on such
Debentures shall remain subordinated to the extent provided in Article 12 of
the Indenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Debenture at the times, place and rate,
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 Debenture is registrable in
the Securities Register, upon surrender of this Debenture for registration of
transfer at the office or agency of the Company maintained under Section 10.2
of the Indenture duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Securities Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees. 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 tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Debenture 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 Debenture is registered as the owner
hereof for all purposes, whether or not this Debenture be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
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The Debentures are issuable only in registered form without
coupons in denominations of $50 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth,
Debentures are exchangeable for a like aggregate principal amount of Debentures
of a different authorized denomination, as requested by the Holder surrendering
the same.
The Company and, by its acceptance of this Debenture or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, this Debenture agree that for United States federal,
state and local tax purposes it is intended that this Debenture constitute
indebtedness.
THE INDENTURE AND THIS DEBENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES THEREOF.
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ASSIGNMENT FORM
To assign this Debenture, fill in the form below:
(I) or (we) assign and transfer this Security to
________________________________________________________________________________
(Insert assignee's social security or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint________________________________________________________
agent to transfer this Debenture on the books of the Company. The agent may
substitute another to act for him.
Your Signature:_______________________________________________
(Sign exactly as your name appears on the
other side of this Security)
Date:_____________________________
Signature Guarantee:* ________________________________________
_______________
* Signature must be guaranteed by an institution which is a member of
one of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee programs
acceptable to the Trustee.
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NOTICE OF CONVERSION
To: Newfield Exploration Company
The undersigned owner of this Debenture hereby irrevocably
exercises the option to convert this Debenture, or the portion below
designated, into Common Stock of NEWFIELD EXPLORATION COMPANY in accordance
with the terms of the Indenture referred to in this Debenture, and directs that
the shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment
below. If shares are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto.
Any Holder, upon the exercise of its conversion rights in
accordance with the terms of the Indenture and the Debenture, agrees to be
bound by the terms of any Rights Agreement relating to Company Common Stock
issuable upon conversion of the Debenture.
Date: ____________, ____
in whole ___
Portions of Debenture to be
in part ___ converted ($50 or integral multiples
thereof):
$__________________
________________________________________
Signature (for conversion only)
Please Print or Typewrite Name and
Address, Including Zip Code, and
Social Security or Other Identifying
Number
________________________________________
________________________________________
________________________________________
Signature Guarantee:*______________________________
_____________
* Signature must be guaranteed by an institution which is a member of
one of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The
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Stock Exchange Medallion Program (SEMP); or (iv) in such other
guarantee programs acceptable to the Trustee.
SECTION 2.4 Notice of Shortened Maturity Date.
Whenever the Maturity Date is shortened in accordance with Section 2.2, a
notice stating the Maturity Date has been adjusted and setting forth the
adjusted Maturity Date shall as soon as practicable be mailed by the Company to
all record holders of the Debentures at their last addresses as they appear on
the Securities Register.
SECTION 2.5 Additional Provisions Required in Global
Debenture. Any Global Debenture issued hereunder shall, in addition to the
provisions contained in Sections 2.2 and 2.3, bear a legend in substantially
the following form: "This Debenture is a Global Debenture within the meaning of
the Indenture hereinafter referred to and is registered in the name of a
Depositary or a nominee of a Depositary. This Debenture is exchangeable for
Debentures registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Indenture and may
not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary."
SECTION 2.6 Form of Trustee's Certificate of
Authentication. The form of Trustee's Certificate of Authentication shall be
as follows:**
"This is one of the Debentures designated therein referred to in the within
mentioned Indenture.
First Union National Bank,
as Trustee
By: ______________________
Authorized Signatory
Dated: ___________________"
SECTION 2.7 Initial Issuance to Property Trustee. The
Debentures initially issued to the Property Trustee of the Trust shall be in
the form of one or more individual certificates in definitive, fully registered
form without coupons.
__________
** Or in the form provided in Section 6.14 in the event that a separate
Authenticating Agent is appointed pursuant thereto.
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ARTICLE 3
THE DEBENTURES
SECTION 3.1 Amount of Debentures. Except for
Debentures authenticated and delivered upon registration of, transfer of, or in
exchange for, or in lieu of, other Debentures pursuant to Sections 3.4, 3.5 or
3.6, the aggregate principal amount of Debentures that may be authenticated and
delivered under this Indenture is $128,866,000; provided that additional
Debentures with an aggregate principal amount of up to $19,329,900 may be
authenticated and delivered under this Indenture in connection with the
exercise by the Underwriters of their option to purchase additional Preferred
Securities for the purpose of covering sales in excess of 2,500,000 Preferred
Securities granted to the Underwriters in the Pricing Agreement.
SECTION 3.2 Denominations. The Debentures shall be in
registered form without coupons and shall be issuable in denominations of $50
and any integral multiple thereof.
SECTION 3.3 Execution, Authentication, Delivery and
Dating. The Debentures shall be executed on behalf of the Company by its
President or one of its Vice Presidents. The signature of any of these
officers on the Debentures may be manual or facsimile.
Debentures bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Debentures or did not hold such offices at the date of such Debentures. Upon
the execution and delivery of this Indenture, or from time to time thereafter,
Debentures may be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Securities to or upon Company Order without any further action by the Company.
Debentures may be authenticated on original issuance from time to time and
delivered pursuant to such procedures acceptable to the Trustee ("Procedures")
as may be specified from time to time by Company Order. Procedures may
authorize authentication and delivery pursuant to instructions of the Company
or a duly authorized agent, which instructions shall be promptly confirmed in
writing.
Each Debenture shall be dated the date of its authentication.
No Debenture shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears on
such Debenture a certificate of authentication substantially in the form
provided for herein executed by the Trustee by the manual signature of one of
its authorized officers, and such certificate upon any Debenture shall be
conclusive evidence, and the only evidence, that such Debenture has been duly
authenticated and delivered hereunder.
SECTION 3.4 Temporary Debentures. Pending the
preparation of definitive Debentures, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Debentures which
are printed, lithographed, typewritten, mimeographed or
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otherwise produced, in any denomination, substantially of the tenor of the
definitive Debentures in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Debentures may determine, as evidenced by their
execution of such Debentures.
If temporary Debentures are issued, the Company will cause
definitive Debentures to be prepared without unreasonable delay. After the
preparation of definitive Debentures, the temporary Debentures shall be
exchangeable for definitive Debentures upon surrender of the temporary
Debentures at the office or agency of the Company designated for the purpose
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Debentures, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Debentures of authorized denominations. Until so exchanged, the
temporary Debentures shall in all respects be entitled to the same benefits
under this Indenture as definitive Debentures.
SECTION 3.5 Registration, Transfer and Exchange. The
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register in which, subject to such reasonable regulations as it may prescribe,
the Company shall provide for the registration of Debentures and of transfers
of Debentures. Such register is herein sometimes referred to as the
"Securities Register." The Trustee is hereby appointed "Securities Registrar"
for the purpose of registering Debentures and transfers of Debentures as herein
provided.
Upon surrender for registration or transfer of any Debenture
at the office or agency of the Company designated for that purpose the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Debentures of any
authorized denominations, of a like aggregate principal amount.
At the option of the Holder, Debentures may be exchanged for
other Debentures of any authorized denominations, of a like aggregate principal
amount, upon surrender of the Debentures to be exchanged at such office or
agency. Whenever any Debentures are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Debentures
which the Holder making the exchange is entitled to receive.
All Debentures issued upon any transfer or exchange of
Debentures shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Debentures
surrendered upon such transfer or exchange.
Every Debenture presented or surrendered for transfer or
exchange shall (if so required by the Company or the Securities Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
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No service charge shall be made to a Holder for any transfer
or exchange of Debentures, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any transfer or exchange of Debentures.
Notwithstanding any of the foregoing, the Global Debenture
shall be exchangeable pursuant to this Section 3.5 for Debentures registered in
the names of Persons other than the Depository for such Debenture or its
nominee only if (a) such Depository notifies the Company that it is unwilling
or unable to continue as Depository for the Global Debenture, and the Company
shall not have appointed a successor Depository within 90 days after such
notice, (b) at any time such Depository ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, and the
Company shall not have appointed a successor Depository within 90 days, (c) the
Company executes and delivers to the Trustee a Company Order that the Global
Debenture shall be so exchangeable or (d) there shall have occurred and be
continuing an Event of Default. The Global Debenture shall be exchangeable for
Debentures registered in such names as such Depository shall direct.
Notwithstanding any other provisions in this Indenture, the
Global Debenture may not be transferred except as a whole by the Depository
with respect to the Global Debenture to a nominee of such Depository or by a
nominee of such Depository to such Depository or another nominee of such
Depository.
Neither the Company nor the Trustee shall be required,
pursuant to the provisions of this Section, (a) to issue, transfer or exchange
any Debenture during a period beginning at the opening of business 15 days
before the day of selection for redemption of Debentures pursuant to Article 11
and ending at the close of business on the day of mailing of notice of
redemption or (b) to transfer or exchange any Debenture so selected for
redemption in whole or in part, except, in the case of any Debenture to be
redeemed in part, any portion thereof not to be redeemed.
Upon any distribution of the Debentures to the holders of the
Preferred Securities in accordance with the Trust Agreement, the Company and
the Trustee shall enter into a supplemental indenture pursuant to Section 9.1
to provide for transfer procedures and restrictions with respect to the
Debentures substantially similar to those contained in the Trust Agreement to
the extent applicable in the circumstances existing at the time of such
distribution.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen
Debentures. If any mutilated Debenture is surrendered to the Trustee together
with such security or indemnity as may be required by the Company or the
Trustee to save each of them harmless, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a new Debenture and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee
(a) evidence to their satisfaction of the destruction, loss or theft of any
Debenture, and (b) such security or indemnity as
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may be required by them to save each of them harmless, then, in the absence of
actual notice to the Company or the Trustee that such Debenture has been
acquired by a bona fide purchaser, the Company shall execute and upon the
receipt of a Company Order requesting authentication of its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Debenture, a new Debenture bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen
Debenture has become or is about to become due and payable, the Company in its
discretion may, instead of issuing a new Debenture, pay such Debenture.
Upon the issuance of any new Debenture under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debenture issued pursuant to this Section in lieu of
any destroyed, lost or stolen Debenture shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debenture shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Debentures duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Debentures.
SECTION 3.7 Payment of Interest; Interest Rights
Preserved. Interest on any Debenture which is payable, and is punctually paid
or duly provided for, on any Interest Payment Date, shall be paid to the Person
in whose name that Debenture (or one or more Predecessor Debentures) is
registered at the close of business on the Regular Record Date, except that
interest payable on the Maturity of the Debentures shall be paid to the Person
to whom principal is paid.
Any interest on the Debentures which is payable, but is not
timely paid or duly provided for, on an Interest Payment Date ("Defaulted
Interest"), shall forthwith cease to be payable to the registered Holder on the
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (a) or (b) below:
(a) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Debentures (or
their respective Predecessors Debentures) are registered at the close
of business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on the Debentures and the date of the
proposed payment, and at the same time the Company shall
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deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited
to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first
class, postage prepaid, to each Holder of the Debentures at the
address of such Holder as it appears in the Securities Register not
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Debentures (or their
respective Predecessor Debentures) are registered on such Special
Record Date and shall no longer be payable pursuant to the following
clause (b).
(b) The Company may make payment of any Defaulted
Interest in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Debentures may be
listed and, upon such notice as may be required by such exchange (or
by the Trustee if the Debentures are not listed), if, after notice
given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each
Debenture delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debenture shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Debenture.
SECTION 3.8 Persons Deemed Owners. The Company, the
Trustee, the Paying Agent and any agent of the Company or the Trustee or the
Paying Agent may treat the Person in whose name any Debenture is registered as
the owner of such Debenture for the purpose of receiving payment of principal
of and (subject to Section 3.7) interest or premium on such Debenture and for
all other purposes whatsoever, whether or not such Debenture be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 3.9 Cancellation. All Debentures surrendered
for payment, redemption, conversion, transfer or exchange shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee, and any such
Debentures and Debentures surrendered directly to the Trustee for any such
purpose shall be promptly canceled by it. The Company may at any time deliver
or cause to be delivered to the Trustee for cancellation any Debentures
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Debentures so delivered shall be
promptly canceled by the Trustee. No Debentures shall be
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authenticated in lieu of or in exchange for any Debentures canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Debentures shall be destroyed by the Trustee and upon written request, the
Trustee shall deliver to the Company a certificate of such destruction.
SECTION 3.10 Computation of Interest. Interest on the
Debentures shall be computed on the basis of a 360-day year of twelve 30-day
months.
SECTION 3.11 Deferrals of Interest Payment Dates. The
Company shall have the right, at any time during the term of the Debentures, so
long as no Event of Default has occurred and is continuing, from time to time
to extend the interest payment period for the Debentures for up to 20
consecutive quarters with respect to each deferral period (each, an "Extension
Period") during which periods the Company shall have the right to not make
payments of interest on any Interest Payment Date, and at the end of such
Extension Period the Company shall pay all interest then accrued and unpaid
thereon (together with Additional Interest thereon, if any, at the rate
specified for the Debentures, to the extent permitted by applicable law),
provided, however, that during any such Extension Period, the Company shall
not, and shall cause any Subsidiary not to, (a) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any shares of the Company's capital stock or (b) make any
payment of principal, interest or premium, if any, on or repay, repurchase or
redeem any debt securities (including guarantees of indebtedness for money
borrowed) of the Company that rank pari passu with or junior to the Debentures
(other than (i) any dividend, redemption, liquidation, interest, principal or
guarantee payment by the Company where the payment is made by way of securities
(including capital stock) that rank pari passu with or junior to the securities
on which such dividend, redemption, interest, principal or guarantee payment is
being made, (ii) redemptions or purchases of any rights pursuant to any Rights
Agreement and the declaration of a dividend of such rights or the issuance of
preferred stock under such plans in the future, (iii) payments under the
Guarantee, (iv) purchases of Company Common Stock related to the issuance of
Company Common Stock under any of the Company's benefit plans for its
directors, officers or employees, (v) as a result of a reclassification of the
Company's capital stock or the exchange or conversion of one series or class of
the Company's capital stock for another series or class of the Company's
capital stock and (vi) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged). Prior to the
termination of any such Extension Period, the Company may further extend the
interest payment period, provided that no such Extension Period shall exceed 20
consecutive quarters or extend beyond the Maturity Date of the Debentures.
Upon termination of any Extension Period and upon the payment of all accrued
and unpaid interest and any Additional Interest then due, the Company may
select a new Extension Period, subject to the above requirements. No interest,
including Additional Interest, if any, shall be due and payable during an
Extension Period, except at the end thereof. The Company shall give the
Trustee, the Property Trustee and the Administrative Trustees written notice of
its selection of such Extension Period at least one Business Day prior to the
earlier of (i) the record date for the date the distributions on the Preferred
Securities of the Trust (or if no Preferred Securities are outstanding, for the
date interest on the Debentures) would have
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been payable except for the election to begin such Extension Period and (ii)
the date the Property Trustee (or if no Preferred Securities are outstanding,
the Trustee) is required to give notice to NYSE or other applicable self-
regulatory organization or to holders of such Preferred Securities (or if no
Preferred Securities are outstanding, to the Holders of such Debentures) of
such record date, but in any event not less than one Business Day prior to such
record date. Such notice shall specify the period selected.
The Trustee shall promptly give notice of the Company's
selection of such Extension Period to the Holders of the outstanding Debentures
and Preferred Securities.
SECTION 3.12 Right of Set-off. Notwithstanding anything
to the contrary in the Indenture, the Company shall have the right to set-off
any payment it is otherwise required to make thereunder in respect of the
Debentures to the extent the Company has theretofore made, or is concurrently
on the date of such payment making, a payment relating to the Debentures under
the Guarantee.
SECTION 3.13 Agreed Tax Treatment. Each Debenture
issued hereunder shall provide that the Company and, by its acceptance of a
Debenture or a beneficial interest therein, the Holder of, and any Person that
acquires a beneficial interest in, such Debenture agree that for United States
federal, state and local tax purposes it is intended that such Debenture
constitute indebtedness.
SECTION 3.14 CUSIP Numbers. The Company in issuing the
Debentures may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use such "CUSIP" number in notices of redemption as a convenience
to Holders; provided that any such notice may state that no representation is
made as to the correctness of such number either as printed on the Debentures
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Debentures, and any
such redemption shall not be affected by any defect in or omission of such
numbers.
SECTION 3.15 Global Security.
(a) In connection with distribution of Debentures to
holders of the Preferred Securities in connection with the involuntary
or voluntary dissolution of the Trust, including a dissolution
following the occurrence of a Special Event,
(i) the Debentures in certificated form may be
presented to the Trustee by the Property Trustee in exchange
for a global certificate in an aggregate principal amount
equal to the aggregate principal amount of all outstanding
Debentures (a "Global Debenture"), to be registered in the
name of the Depository, or its nominee, and delivered by the
Trustee to the Depository, or its custodian, for crediting to
the accounts of its participants pursuant to the procedures of
the Depository. The Company upon any such presentation shall
execute a Global Debenture in such
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aggregate principal amount and deliver the same to the Trustee
for authentication and delivery in accordance with this
Indenture; and
(ii) if any Preferred Securities are held in non
book-entry certificated form, the Debentures in certificated
form may be presented to the Trustee by the Property Trustee
and any Preferred Security certificate which represents
Preferred Securities other than Preferred Securities held by
the Depository or its nominee ("Non Book-Entry Preferred
Securities") will be deemed to represent beneficial interests
in Debentures presented to the Trustee by the Property Trustee
having an aggregate principal amount equal to the aggregate
liquidation amount of the Non Book-Entry Preferred Securities
until such Preferred Security certificates are presented to
the Securities Registrar for transfer or reissuance at which
time such Non-Book Entry Preferred Security certificates will
be canceled and a Debenture, registered in the name of the
holder of the Preferred Security certificate or the transferee
of the holder of such Preferred Security certificate, as the
case may be, with an aggregate principal amount equal to the
aggregate liquidation amount of the Preferred Security
certificate canceled, will be executed by the Company and
delivered to the Trustee for authentication and delivery in
accordance with this Indenture. On issue of such Debentures,
Debentures with an equivalent aggregate principal amount that
were presented by the Property Trustee to the Trustee will be
deemed to have been cancelled.
(b) A Global Debenture may be transferred, in whole but
not in part, only to another nominee of the Depository, or to a
nominee of such successor Depository.
(c) If (a) the Depository notifies the Company that it is
unwilling or unable to continue as a Depository for such Global
Debenture and no successor Depository shall have been appointed within
90 days by the Company, (b) the Depository, at any time, ceases to be
a clearing agency registered under the Exchange Act at which time the
Depository is required to be so registered to act as such Depository
and no successor Depository shall have been appointed within 90 days
by the Company, (c) the Company, in its sole discretion, determines
that such Global Debenture shall be so exchangeable or (d) there shall
have occurred and be continuing an Event of Default with respect to
such Debentures, as the case may be, the Company will execute, and,
subject to Article 3 of this Indenture, the Trustee, upon written
notice from the Company and receipt of a Company Order, will
authenticate and deliver the Debentures in definitive registered form
without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Debenture
in exchange for such Global Debenture. In addition, upon an Event of
Default that has occurred and is continuing or in the event the
Company determines that the Debenture shall no longer be represented
by a Global Debenture, the Company will execute, and subject to
Section 3.5 of this Indenture, the Trustee, upon receipt of an
Officers' Certificate evidencing such determination by the Company and
a Company Order, will authenticate and make available for delivery,
the Debentures in definitive registered form
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without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Debenture
in exchange for such Global Debenture. Upon the exchange of the
Global Debenture for such Debentures in definitive registered form
without coupons, in authorized denominations, the Global Debenture
shall be cancelled by the Trustee. Such Debentures in definitive
registered form issued in exchange for the Global Debenture shall be
registered in such names and in such authorized denominations as the
Depository, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee in writing. The
Trustee shall deliver such Debentures to the Depository for delivery
to the Persons in whose names such Debentures are so registered.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to (i) any
surviving rights of transfer, substitution and exchange of Debentures, (ii)
rights hereunder of Holders to receive payments of principal of (and premium,
if any) and interest (including Additional Interest, if any) on the Debentures
and other rights, duties and obligations of the Holders as beneficiaries hereof
with respect to the amounts, if any, so deposited with the Trustee and (iii)
the rights and obligations of the Trustee hereunder), and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all Debentures theretofore authenticated
and delivered (other than (i) Debentures which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6 and (ii) Debentures for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 10.3) have been delivered to the Trustee
for cancellation; or (ii) all such Debentures not theretofore
delivered to the Trustee for cancellation:
(A) have become due and payable, or
(B) will become due and payable at the
Maturity Date within one year of the date of deposit
or are to be called for redemption within one year
under arrangements satisfactory to the Trustee for
the giving of written notice of redemption to the
Trustee in the name, and at the expense, of the
Company, and the Company has deposited or caused to
be deposited with the Trustee as trust funds in trust
for such purpose an amount in the currency or
currencies in which the Debentures are payable
sufficient (without regard to investment of such
amount deposited) to pay and discharge the entire
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indebtedness on the Debentures not theretofore
delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest
(including any Additional Interest) to the date of
such deposit or to the Maturity Date; or
(C) have been redeemed or tendered for
conversion;
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7 and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a)
of this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money. Subject to the
provisions of the last paragraph of Section 10.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Debentures and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money or obligations have been deposited with or received by the
Trustee; provided, however, such moneys need not be segregated from other funds
except to the extent required by law.
ARTICLE 5
REMEDIES
SECTION 5.1 Events of Default. "Event of Default",
wherever used herein with respect to the Debentures, means any one of the
following events that has occurred and is continuing (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of any interest upon the
Debenture, including any Additional Interest in respect thereof, when
it becomes due and payable, and continuance of such default for a
period of 30 days (subject to the deferral of any due date in the case
of an Extension Period);
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(b) default in the payment of the principal of (or
premium, if any, on) the Debentures when due whether at the Maturity
Date, upon redemption by declaration or otherwise;
(c) failure on the part of the Company duly to observe or
perform in any material respect any other of the covenants or
agreements on the part of the Company contained in the Debentures or
contained in this Indenture (other than a covenant or agreement which
has been expressly included in this Indenture solely for the benefit
of the Company) and continuance for such failure for a period of 90
days after the date on which written notice of such failure, requiring
the same to be remedied and stating that such notice is a "Notice of
Default" hereunder, shall have been given to the Company by the
Trustee, by registered or certified mail, or to the Company and the
Trustee by a Holder or Holders of at least 25% in aggregate principal
amount of the Debentures at the time Outstanding or the holder or
holders of at least 25% in aggregate liquidation amount of the
Preferred Securities;
(d) failure by the Company to issue Company Common Stock
upon an appropriate election by the Holder or Holders of the
Debentures to convert the Debentures into shares of Company Common
Stock;
(e) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company as bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of the Company under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law, or
appointing a receiver, liquidator, assignee, trustee, sequestrator (or
other similar official) of the Company or of any substantial part of
its property or ordering the winding up or liquidation of its affairs,
and the continuance of any such decree or order unstayed and in effect
for a period of 60 consecutive days; or
(f) the institution by the Company of proceedings to be
adjudicated as bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law, or the consent by it
to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Company or of any substantial part of its
property or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due and its willingness to be
adjudicated as bankrupt, or the taking of corporate action by the
Company in furtherance of any such action.
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment. If an Event of Default occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Debentures may declare the principal amount
of and the accrued interest (including any Additional Interest) on all the
Debentures to be
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due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), provided that, if an Event of Default occurs and
is continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Debentures fail to declare the principal of
all the Debentures to be immediately due and payable, the holders of at least
25% in aggregate liquidation amount of the Preferred Securities then
outstanding shall have such right by a notice in writing to the Company and the
Trustee, and upon any such declaration such principal amount (or specified
amount) of and the accrued interest (including any Additional Interest) on all
the Debentures shall become immediately due and payable, provided that the
payment of principal and interest (including any Additional Interest) on the
Debentures shall remain subordinated to the extent provided in Article 12.
At any time after such a declaration of acceleration with
respect to Debentures has been made and before a judgment or decree for payment
of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in aggregate principal amount of
the Outstanding Debentures, by written notice to the Company and the Trustee
may rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a
sum sufficient to pay:
(i) all overdue installments of interest
(including any Additional Interest) on the Debentures;
(ii) the principal of (and premium, if any, on)
the Debentures which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Debentures;
(iii) to the extent that payment of such interest
is lawful, interest (including any Additional Interest) upon
overdue installments of interest at the rate borne by the
Debentures;
(iv) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel; and
(b) all Events of Default that shall have occurred and
been continuing with respect to Debentures, other than the non-payment
of the principal of the Debentures which has become due solely by such
acceleration, have been cured or waived as provided in Section 5.13.
If the holders of a majority in aggregate principal amount of the
Outstanding Debentures fail to rescind and annul such declaration and
its consequences, the holders of a majority in liquidation amount of
the Preferred Securities then outstanding shall have such right.
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee.
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The Company covenants that if:
(a) default is made in the payment of any installment of
interest (including any Additional Interest) on the Debentures when
such interest becomes due and payable and such default continues for a
period of 30 days, or
(b) default is made in the payment of the principal of
(and premium, if any, on) the Debentures whether at the Maturity Date
thereof, upon redemption by declaration or otherwise, the Company
will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of the Debentures, the whole amount then due and payable on
the Debentures for principal (and premium, if any) and interest
(including any Additional Interest), including, to the extent that
payment of such interest shall be lawful, interest on any overdue
principal (and premium, if any) and on any overdue installments of
interest (including any Additional Interest) at the rate borne by the
Debentures, and, in addition thereto, all amounts owing the Trustee
under Section 6.7.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon the Debentures
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the
Debentures, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders of the Debentures by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim. In case
of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Debentures or
the property of the Company or of such other obligor or their creditors:
(a) the Trustee (irrespective of whether the principal of
the Debentures shall then be due and payable as therein expressed or
by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of overdue
principal (or premium, if any) or interest (including any Additional
Interest)) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim (including a
claim for reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel) for the whole
amount of principal (and premium, if any) and interest
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(including any Additional Interest) owing and unpaid in
respect to the Debentures and to file such other papers or
documents as may be necessary or advisable and to take any and
all actions as are authorized under the Trust Indenture Act in
order to have the claims of the Holders and any predecessor to
the Trustee under Section 6.7 and, of the Holders allowed in
any such judicial proceedings; and
(ii) in particular, the Trustee shall be
authorized to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
the same in accordance with Section 5.6; and
(b) any custodian, receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) in any such
judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee for distribution in accordance with Section
5.6, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any
amount due to it and any predecessor Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting
the Debentures or the rights of any Holder thereof, or to authorize the Trustee
to vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 5.5 Trustee May Enforce Claim Without
Possession of Debentures. All rights of action and claims under this Indenture
or the Debentures may be prosecuted and enforced by the Trustee without the
possession of any of the Debentures or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgement shall, after provision for the payment of all the amounts owing the
Trustee and any predecessor Trustee under Section 6.7, its agents and counsel,
be for the ratable benefit of the Holders of the Debentures in respect of which
such judgement has been recovered.
SECTION 5.6 Application of Money Collected. Any money
or property collected or to be applied by the Trustee with respect to the
Debentures pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money or property on account of principal (or premium, if any) or interest
(including any Additional Interest), upon presentation of the Debentures and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: to the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.7,
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SECOND: to the payment of the amounts then due and unpaid upon
the Debentures for principal (and premium, if any) and interest (including any
Additional Interest), in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Debentures for principal (and
premium, if any) and interest (including any Additional Interest),
respectively; and
THIRD: the balance, if any, to the Person or Persons entitled
thereto.
SECTION 5.7 Limitation on Suits. No Holder of the
Debentures, including a holder of Preferred Securities acting to enforce the
rights of the Property Trustee as a Holder of the Debentures pursuant to
Section 5.8 of the Trust Agreement, shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture or for the
appointment of a receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to
the Trustee of a continuing Event of Default;
(b) if the Trust is not the sole holder of the
Outstanding Debentures, the Holders of not less than 25% in principal
amount of the Outstanding Debentures shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(e) no direction inconsistent with such written request
has been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Debentures;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of the Debentures, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Debenture shall have the right which is absolute
and unconditional to receive payment of the principal of (and premium, if any)
and (subject to Section 3.7) interest (including any Additional Interest) on
such
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Debenture at Maturity or to convert such Debenture in accordance with Article
13 and to institute suit for the enforcement of any such payment and right to
convert, and such right shall not be impaired without the consent of such
Holder. For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Indenture and
the Trust Agreement, upon an Event of Default that has occurred and is
continuing specified in Sections 5.1(a) or 5.1(b), any holder of Preferred
Securities shall have the right to institute a proceeding directly against the
Company, for enforcement of payment to such holder of the principal amount of
(or premium, if any) or interest on Debentures having a principal amount equal
to the liquidation amount of the Preferred Securities of such holder (a "Direct
Action"). Notwithstanding any payment made to such holder of Preferred
Securities by the Company in connection with a Direct Action, the Company shall
remain obligated to pay the principal of (or premium, if any) or interest on
the Debentures held by the Trust or the Property Trustee. In connection with
any such Direct Action, the rights of the Company will be subrogated to the
rights of any holder of the Preferred Securities to the extent of any payment
made by the Company to such holder of Preferred Securities as a result of such
Direct Action. Except as set forth in this Section, the holders of Preferred
Securities shall have no right to execute any right or remedy available to the
Holders of, or in respect of, the Debentures.
SECTION 5.9 Restoration of Rights and Remedies. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case the Company, the Trustee and the
Holder shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative. Except as
otherwise provided in the last paragraph of Section 3.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of the Debentures to exercise any
right or remedy accruing upon any Event of Default that shall have occurred and
be continuing shall impair any such right or remedy, or constitute a waiver of
any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
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SECTION 5.12 Control by Holders. The Holders of a
majority in aggregate principal amount of the Outstanding Debentures shall have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee or exercising any trust or power conferred
on the Trustee, with respect to the Debentures, provided that:
(a) such direction shall not be in conflict with any rule
of law or with this Indenture,
(b) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow such direction if the
Trustee in good faith shall, by a Responsible Officer or Officers of
the Trustee, determine that the proceeding so directed would be
unjustly prejudicial to the Holders not joining in any such direction
or would involve the Trustee in personal liability.
Upon receipt by the Trustee of any written notice directing
the time, method or place of conducting any such proceeding or exercising any
such trust or power, with respect to the Debentures and, if all or part of the
Debentures is represented by a Global Security, a record date shall be
established for determining Holders of Outstanding Debentures entitled to join
in such notice, which record date shall be at the close of business on the day
the Trustee receives such notice. The Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to join in
such notice, whether or not such Holders remain Holders after such record date,
provided, that, unless the Holders of a majority in principal amount of the
Outstanding Debentures shall have joined in such notice prior to the day which
is 90 days after such record date, such notice shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new notice identical to a notice
which has been canceled pursuant to the proviso to the preceding sentence, in
which event a new record date shall be established pursuant to the provisions
of this Section 5.12.
SECTION 5.13 Waiver of Past Defaults. Subject to
Section 9.2 hereof, the Holders of not less than a majority in aggregate
principal amount of the Outstanding Debentures affected by any past default may
on behalf of the Holders of all the Debentures waive any past default hereunder
with respect to Debentures and its consequences, except a default:
(a) in the payment of the principal of (or premium, if
any) or interest (including any Additional Interest) on the Debentures
(unless such default has been cured or waived and a sum sufficient to
pay all matured installments of interest and principal due otherwise
than by acceleration has been deposited with the Trustee), or
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(b) in respect of a covenant or provision hereof which
under Article 9 cannot be modified or amended without the consent of
the Holder of each Outstanding Debenture;
provided, however, that if the Debentures are held by the Trust or a trustee of
the Trust, such waiver shall not be effective until the holders of a majority
in liquidation amount of Trust Securities shall have consented to such waiver;
provided, further, that if the consent of the Holder of each outstanding
Debenture is required, such waiver shall not be effective until each holder of
the Trust Securities shall have consented to such waiver.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture, but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon. If the
Holders of a majority in aggregate principal amount of the Outstanding
Debentures fail to waive such Event of Default, the holders of a majority in
aggregate liquidation amount of Preferred Securities shall have such right. No
such rescission shall affect any subsequent default or impair any right
consequent thereon. The provisions of this Section 5.13 shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act, and such Section 316(a)(1)(B)
of the Trust Indenture Act is hereby expressly excluded from this Indenture and
the Debentures, as permitted by the Trust Indenture Act.
SECTION 5.14 Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Debenture by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as
Trustee the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against
any party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; but the provisions of
this Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Debentures, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest (including any Additional Interest) on the
Debentures on or after the Maturity of the Debentures or to convert a Debenture
in accordance with Article 13. The provisions of this Section 5.14 shall be in
lieu of Section 315(e) of the Trust Indenture Act, and such Section 315(e) of
the Trust Indenture Act is hereby expressly excluded from this Indenture and
the Debentures, as permitted by the Trust Indenture Act.
SECTION 5.15 Waiver of Usury, Stay, or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay
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or impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
ARTICLE 6
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such
duties and only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations shall
be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture,
but in the case of any such certificates or opinions which by
any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to
the requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of his own affairs;
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own grossly negligent
action, its own grossly negligent failure to act, or its own willful
misconduct except that;
(i) this Subsection shall not be construed to
limit the effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any
error of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in
good faith in accordance with the direction of Holders
pursuant to Section 5.12 relating to the time, method and
place of conducting any
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proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee,
under this Indenture.
(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 there shall be
reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably
assured to it;
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject
to the provisions of this Section.
SECTION 6.2 Notice of Defaults. Within 90 days after
actual knowledge by a Responsible Officer of the Trustee of the occurrence of
any default hereunder, the Trustee shall transmit by mail to all Holders of
Debentures, as their names and addresses appear in the Securities Register,
notice of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of
a default in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on Debenture, the Trustee shall be fully
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of Debentures; and provided, further,
that, except in the case of any default of the character specified in Section
5.1(c), no such notice to Holders of the Debentures shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default.
SECTION 6.3 Certain Rights of Trustee. Subject to the
provisions of Section 6.1:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, Debenture or other paper
or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company
Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
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in the absence of bad faith on its part, conclusively rely upon an
Officers' Certificate and an Opinion of Counsel;
(d) the Trustee may consult with counsel of its choice
and the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(f) the Trustee is not required to expend or risk its own
funds or otherwise incur personal financial liability in the
performance of its duties if the Trustee reasonably believes that
repayment or adequate indemnity is not reasonably assured to it;
(g) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, indenture, Debenture or other paper
or document, but the Trustee in its discretion may make such inquiry
or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney;
(h) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, custodians or nominees and the Trustee
shall not be responsible for any misconduct or negligence on any part
of any agent, custodian, nominee or attorney appointed with due care
by it hereunder; and
(i) in the event that the Trustee is also acting as a
Paying Agent, Authenticating Agent, Conversion Agent, and/or
Securities Registrar hereunder, the rights and protections afforded to
the Trustee pursuant to this Article 6 shall also be afforded to such
Paying Agent, Authenticating Agent, Conversion Agent, and/or
Securities Registrar.
(j) the permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty, and the
Trustee shall not be answerable for other than its grossly negligent
action, grossly negligent omission or its willful misconduct; and
(k) the Trustee shall not be charged with knowledge of
any Event of Default under Section 5.1 (other than an Event of Default
under Section 5.1(a) or (b) if the Trustee is also the Paying Agent
with respect to the Securities) hereof or the existence of any
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Subsidiary of the Company unless the Trustee shall have received
notice thereof in accordance with Section 1.5 hereof from the Company
or a Holder.
SECTION 6.4 Not Responsible for Recitals or Issuance of
Debentures. The recitals contained herein and in the Debentures, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debentures. The Trustee shall not be accountable for the
use or application by the Company of the Debentures or the proceeds thereof.
SECTION 6.5 May Hold Debentures. The Trustee, any
Paying Agent, Securities Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Debentures
and, subject to Sections 6.8 and 6.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Paying Agent, Securities
Registrar or such other agent.
SECTION 6.6 Money Held in Trust. Money held by the
Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law. The Trustee shall be under no liability of
interest on any money received by it hereunder except as otherwise agreed with
the Company.
SECTION 6.7 Compensation and Reimbursement. The
Company agrees
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder in such amounts
as the Company and the Trustee shall agree from time to time (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses and
disbursements of its agents and counsel); and
(c) to indemnify the Trustee and its officers, directors
and employees for, and to hold it harmless against, any loss,
liability or expense (including the reasonable compensation and the
expenses and disbursements of its agents and counsel) incurred without
negligence or bad faith, arising out of or in connection with the
acceptance or administration of this trust or the performance of its
duties hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder. This
Indemnification shall survive the termination of this Agreement or the
earlier resignation or removal of the Trustee.
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To secure the Company's payment obligations in this Section,
the Company and the Holders agree that the Trustee shall have a lien prior to
the Debentures on all money or property held or collected by the Trustee except
assets held in trust to pay principal and premium, if any, or interest on
particular Debentures pursuant to Section 4.1(a)(ii)(B), or pursuant to any
redemption pursuant to Article 11 hereof if monies have been deposited for such
redemption and notice has been given and the Redemption Date has passed. Such
lien shall survive the satisfaction and discharge of this Indenture or the
earlier resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 5.1(e) or (f) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or a successor statute.
SECTION 6.8 Disqualification; Conflicting Interests.
The Trustee shall be subject to the provisions of Section 310(b) of the Trust
Indenture Act. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the second to last paragraph of
Section 310(b) of the Trustee Indenture Act. The Trust Agreement and the
Guarantee shall be deemed to be specifically described in this Indenture for
the purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
SECTION 6.9 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the
laws of the United States of America or of any State, Territory or the
District of Columbia, authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority, or
(b) a corporation or other Person organized and doing
business under the laws of a foreign government that is permitted to
act as Trustee pursuant to a rule, regulation or order of the
Commission, authorized under such laws to exercise corporate trust
powers, and subject to supervision or examination by authority of such
foreign government or a political subdivision thereof substantially
equivalent to supervision or examination applicable to United States
institutional trustees,
in either case having a combined capital and surplus of at least $50,000,000.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then, to the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. Neither the Company nor any
Person directly
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or indirectly controlling, controlled by or under common control with the
Company shall serve as Trustee hereunder.
SECTION 6.10 Resignation and Removal; Appointment of
Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Trustee under Section 6.11.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within
30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding
Debentures, delivered to the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with
Section 6.8 after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Debenture
for at least six months, or
(ii) the Trustee shall cease to be eligible
under Section 6.9 and shall fail to resign after written
request therefor by the Company or by any such Holder, or
(iii) the Trustee shall become incapable of
acting or shall be adjudged as bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed
or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by Board Resolution may remove the
Trustee, or (B) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Debenture for at least six months may, on behalf of himself and all
other similarly situated Holders, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause with respect to the Debentures, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or
the occurrence of such vacancy, a successor Trustee with respect to
the Debentures shall be appointed by Act of the Holders
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of a majority in principal amount of the Outstanding Debentures
delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has
been a bona fide Holder of a Debenture for at least six months may,
subject to Section 5.14, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor
Trustee by mailing written notice of such event by first-class mail,
postage prepaid, to the Holders of the Debentures as their name and
addresses appear in the Securities Register. Each notice shall
include the name of the successor Trustee and the address of its
Corporate Trust Office.
SECTION 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee, but, on the written request of the Company or the
Successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such
successor, Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee
hereunder.
(b) Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all
rights, power and trusts referred to in paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article.
SECTION 6.12 Merger, Conversion, Consolidation or
Succession to Business. Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Debentures shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by
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merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Debentures so authenticated, and in case
any Debentures shall not have been authenticated, any successor to the Trustee
may authenticate such Debentures either in the name of any predecessor Trustee
or in the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Debentures or in this Indenture that the certificate of the Trustee shall have.
SECTION 6.13 Preferential Collection of Claims Against
Company. If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Debentures), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 6.14 Appointment of Authenticating Agent. The
Trustee may appoint an Authenticating Agent or Agents, as described and with
the powers and obligations conferred by this Section 6.14 ("Authenticating
Agent or Agents"), with respect to the Debentures which shall be authorized to
act on behalf of the Trustee to authenticate the Debentures issued upon
exchange, registration of transfer or partial redemption thereof, and
Debentures so authenticated shall be entitled to the benefits of this Indenture
and shall be valid and obligatory for all purposes as if authenticated by the
Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Debentures by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and shall
at all times be a corporation organized and doing business under the laws of
the United States of America, or of any State, Territory or the District of
Columbia, authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 and subject to
supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of the corporate trust business of an Authenticating Agent
shall be the successor Authenticating Agent hereunder, provided such
corporation shall be otherwise eligible under this Section, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of the
Debentures. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provision of this Section.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section, and
the Trustee shall be entitled to be reimbursed for such payments, subject to
the provisions of Section 6.7.
If an appointment is made pursuant to this Section, the
Debentures may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternative certificate of authentication in the
following form:
This is one of the Debentures referred to in the within
mentioned indenture.
FIRST UNION NATIONAL BANK,
As Trustee
By:_____________________________________
As Authenticating Agent
By:_____________________________________
Authorized Officer
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Names and Addresses of
Holders. The Company will furnish or cause to be furnished to the Trustee
(unless the Trustee is acting as the Securities Registrar):
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(a) quarterly at least five Business Days before each
Interest Payment Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as of
each such date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished.
SECTION 7.2 Preservation of Information; Communications
to Holders.
(a) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders
contained in the most recent list furnished to the Trustee as provided
in Section 7.1 and the names and addresses of Holders received by the
Trustee in its capacity as Securities Registrar. The Trustee may
destroy any list furnished to it as provided in Section 7.1 upon
receipt of a new list so furnished.
(b) The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Debentures, and the corresponding rights and privileges of the
Trustee, shall be as provided in the Trust Indenture Act.
(c) Every Holder of Debentures, by receiving and holding
the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of information as to the names
and addresses of the Holders made pursuant to the Trust Indenture Act.
SECTION 7.3 Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act, at the times and in the
manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated
intervals of not more than 12 months shall be transmitted within 60
days after December 31 in each calendar year, commencing with December
31, 1999.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange or self regulatory organization of which the Trustee has
received notice by the Company upon which the Debentures are listed
and also with the Commission. The Company will notify the Trustee in
writing whenever the Debentures are listed on any stock exchange or
self-regulatory organization.
SECTION 7.4 Reports by Company. The Company shall file
with the Trustee and with the Commission, and transmit to Holders, such
information, documents and other reports, and
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such summaries thereof, as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided in the Trust Indenture Act, provided
that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934 shall be filed with the Trustee within 15 days after the same is
required to be filed with the Commission. Notwithstanding that the Company may
not be required to remain subject to the reporting requirements of Section 13
or 15(d) of the Securities Exchange Act of 1934, the Company shall continue to
file with the Commission and provide the Trustee and Holders with the annual
reports and the information, documents and other reports which are specified in
Sections 13 and 15(d) of the Securities Exchange Act of 1934. The Company also
shall comply with the other provisions of Trust Indenture Act Section 314(a).
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc. Only on
Certain Terms. The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, and no Person shall consolidate with or merge into
the Company or convey, transfer or lease its properties and assets
substantially as an entirety to the Company, unless:
(a) in case the Company shall consolidate with or merge
into another Person or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the Person formed
by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety
shall be a Person organized and existing under the laws of the United
States of America or any state 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, the due
and punctual payment of the principal of (and premium, if any) and
interest (including any Additional Interest) on all the Debentures and
the performance of every covenant of this Indenture on the part of the
Company to be performed or observed and shall have provided for
conversion rights in accordance with Article 13;
(b) immediately after giving effect to such transaction,
no Event of Default, and no event which, after notice or lapse of
time, or both, would become an Event of Default, shall have happened
and be continuing;
(c) such consolidation, merger, conveyance, transfer or
lease is permitted under the Trust Agreement and Guarantee and does
not give rise to any breach or violation of the Trust Agreement or
Guarantee; and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or
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lease and any such supplemental indenture complies with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with, and the Trustee, subject to
Section 6.1, may rely upon such Officers Certificate and Opinion of
Counsel as conclusive evidence that such transaction complies with
this Section 8.1.
SECTION 8.2 Successor Corporation Substituted. Upon
any consolidation or merger by the Company with or into any other corporation,
or any conveyance, transfer or lease by the Company of its properties and
assets substantially as an entirety to any Person in accordance with Section
8.1, the successor corporation formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
corporation had been named as the Company herein; and in the event of any such
conveyance, transfer or lease the Company shall be discharged from all
obligations and covenants under the Indenture and the Debentures and may be
dissolved and liquidated.
Such successor corporation may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
Debentures issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee, and, upon the Company Order of such
successor corporation instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Debentures which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication pursuant to a Company Order such provisions and any Debentures
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee on its behalf for the purpose pursuant to such
provisions. All the Debentures so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Debentures theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Debentures had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form may be made in the Debentures
thereafter to be issued as may be appropriate.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of
Holders. Without the consent of or notice to any Holder, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
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(a) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Debentures contained; or
(b) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee or to surrender any right or power
herein conferred upon the Company; or
(c) to add to covenants of the Company for the benefit of
the Holders of the Debentures or to surrender any right or power
herein conferred upon the Company; or
(d) to make provision with respect to the conversion
rights of Holders pursuant to the requirements of Article 13; or
(e) to add any additional Events of Default; or
(f) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause shall not materially adversely affect the
interest of the Holders of Debentures and for so long as any of the
Preferred Securities shall remain outstanding, the holders of such
Preferred Securities; or
(g) to evidence and provide for the acceptance of
appointment hereunder by successor Trustee and to add to or change any
of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the Trust hereunder by more
than one Trustee, pursuant to the requirements of Section 6.11(b); or
(h) to comply with the requirements of the Commission in
order to effect or maintain the qualification of this Indenture under
the Trust Indenture Act; or
(i) to make provision for transfer procedures,
certification, book-entry provisions, the form of restricted
securities legends, if any, to be placed on Debentures, and all other
matters required pursuant to Section 3.5 or otherwise necessary,
desirable or appropriate in connection with the issuance of Debentures
to holders of Preferred Securities in the event of a distribution of
Debentures by the Trust if a Special Event occurs and is continuing.
SECTION 9.2 Supplemental Indentures with Consent of
Holders. With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Debentures, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of the
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Debentures under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding
Debenture affected thereby,
(a) except to the extent permitted by Section 3.11 with
respect to the extension of the interest payment period of the
Debentures, change the Maturity Date of the principal of, or the
Installment Payment Dates for any installment of interest (including
any Additional Interest) on, the Debentures, or reduce the principal
amount thereof or the rate of interest thereon or reduce any premium
payable upon the redemption thereof, or change the place of payment
where, or the coin or currency in which, any Debenture or interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Maturity thereof (or,
in the case of redemption, on or after the date fixed for redemption
thereof); or
(b) adversely affect any right to convert or exchange any
Debenture or modify the provisions of this Indenture with respect to
the subordination of the Debentures in a manner adverse to such
Holder; or
(c) reduce the percentage in principal amount of the
Outstanding Debentures, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture; or
(d) modify any of the provisions of this Section, Section
4.1, Section 5.8, Section 5.13 or Section 10.6, except to increase any
such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Debenture affected thereby, or the consent of the
holders of all the Preferred Securities as the case may be; or
(e) modify the provisions in Article 12 of this Indenture
with respect to the subordination of Outstanding Debentures in a
manner adverse to the Holders thereof;
provided that, so long as any Preferred Securities remain outstanding (i) no
such modification may be made that adversely affects the holders of such
Preferred Securities in any material respect, no termination of this Indenture
shall occur, and no waiver of any Event of Default or compliance with any
covenant under this Indenture shall be effective, without the prior consent of
the holders of at least a majority of the aggregate liquidation amount of such
Preferred Securities then outstanding unless and until the principal (and
premium, if any) of the Debentures and all accrued and unpaid interest
(including any Additional Interest) thereon have been paid in full and (ii)
where a consent under this Indenture would require the consent of each Holder
of Debentures, no such consent will be given by the Property Trustee without
the prior consent of each holder of the Preferred Securities.
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It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 Execution of Supplemental Indentures. In
executing or accepting the additional trusts created by any supplemental
indenture permitted by this Article or the modifications thereby of the trust
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in conclusively relying upon,
an Officers' Certificate and an Opinion of Counsel stating that the execution
of such supplemental indenture is authorized or permitted by this Indenture,
and that all conditions precedent have been complied with. The Trustee may,
but shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.4 Effect of Supplemental Indentures. Upon
the execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes, and every Holder of the
Debentures theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.5 Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 9.6 Reference in Debentures to Supplemental
Indentures. Debentures authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Debentures so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any such supplemental indenture may be
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Debentures presented to the Trustee.
ARTICLE 10
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the Debentures that it will
duly and punctually pay the principal of (and premium, if any) and interest on
the Debentures in accordance with the terms of the Debentures and this
Indenture.
SECTION 10.2 Maintenance of Office or Agency. The
Company will maintain in the United States, an office or agency where
Debentures may be presented or surrendered for payment and an office or agency
where Debentures may be surrendered for transfer or exchange and
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where notices and demands to or upon the Company in respect of the Debentures
and this Indenture may be served. The Company initially appoints the Trustee,
acting through its Corporate Trust Office, as its agent for said purposes. The
Company will give prompt written notice to the Trustee of any change in the
location of any such office or agency. If at any time the Company shall fail
to maintain such office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Debentures may be presented or surrendered
for any or all of such purposes, and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in the United States for such purposes. The Company will give prompt
written notice to the Trustee of any such designation and any change in the
location of any such office or agency.
SECTION 10.3 Money for Debenture Payments to Be Held in
Trust. If the Company shall at any time act as its own Paying Agent with
respect to the Debentures, it will, on or before each due date of the principal
of (or premium, if any) or interest on any of the Debentures, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal (or premium, if any) or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, on or
before each due date of the principal of or interest on the Debentures, deposit
with a Paying Agent a sum sufficient to pay the principal (or premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of
the Persons entitled to such principal and premium (if any) or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will:
(a) hold all sums held by it for the payment of the
principal of (or premium, if any) or interest on Debentures in trust
for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company
(or any other obligor upon the Debentures) in the making of any
payment of principal (or premium, if any) or interest;
(c) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent; and
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(d) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent, and, upon such payment by the Company or any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of (or
premium, if any) or interest on any Debenture and remaining unclaimed for two
years after such principal (or premium, if any) or interest has become due and
payable shall (unless otherwise required by mandatory provision of applicable
escheat or abandoned or unclaimed property law) be paid on Company Request,
after all payments owing the Trustee have been paid, to the Company, or (if
then held by the Company) shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be
discharged from such trust; and the Holder of such Debenture shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall
thereupon cease.
SECTION 10.4 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, (a) all taxes, assessments and governmental
charges levied or imposed upon the Company or any Subsidiary or upon the
income, profits or property of the Company or any Subsidiary, and (b) all
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a 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.
SECTION 10.5 Statement as to Compliance. The Company
shall deliver to the Trustee, within 120 days after the end of each calendar
year of the Company an Officers' Certificate (signed by at least one of the
officers referred to in Section 314(a)(4) of the Trust Indenture Act) covering
the preceding calendar year, stating whether or not to the best knowledge of
the signers thereof the Company is in default in the performance, observance or
fulfillment of or compliance with any of the terms, provisions, covenants and
conditions of this Indenture, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they
may have knowledge. For the purpose of this Section 10.5, compliance shall be
determined without regard to any grace period or requirement of notice provided
pursuant to the terms of this Indenture.
SECTION 10.6 Waiver of Certain Covenants. The Company
may omit in any particular instance to comply with any covenant or condition
set forth in this Article 10, if before or
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after the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Debentures, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company in respect of any
such covenant or condition shall remain in full force and effect.
SECTION 10.7 Additional Sums. In the event that (a) the
Property Trustee is the Holder of all of the Outstanding Debentures, (b) a Tax
Event in respect of the Trust shall have occurred and be continuing and (c) the
Company shall not have (i) redeemed the Debentures pursuant to Section 11.7 or
11.8 or (ii) dissolved the Trust pursuant to Section 9.2(b) of the Trust
Agreement, the Company shall pay to the Trust (and its permitted successors or
assigns under the Trust Agreement) for so long as the Trust (or its permitted
successor or assignee) is the registered Holder of the Debentures, such
additional amounts as may be necessary in order that the amount of
distributions (including any Additional Amounts (as defined in the Trust
Agreement)) then due and payable by the Trust on the Preferred Securities and
Common Securities that at any time remain outstanding in accord with the terms
thereof shall not be reduced as a result of any Additional Taxes (the
"Additional Sums"). Whenever in this Indenture or the Debentures there is a
reference in any context to the payment of principal of (or premium, if any) or
interest on the Debentures, such mention shall be deemed to include mention of
the payments of the Additional Sums provided for in this paragraph to the
extent that, in such context, Additional Sums are, were or would be payable in
respect thereof pursuant to the provisions of this paragraph and express
mention of the payment of Additional Sums (if applicable) in any provisions
hereof shall not be construed as excluding Additional Sums in those provisions
hereof where such express mention is not made, provided, however, that the
extension of an interest payment period pursuant to Section 3.11 of the
Debentures shall not extend the payment of any Additional Sums that may be due
and payable during such interest payment period.
SECTION 10.8 Additional Covenants. The Company
covenants and agrees with each Holder of Debentures that so long as the
Debentures are outstanding, if (i) there shall have occurred any event of which
the Company has actual knowledge that (A) with the giving of notice or the
lapse of time or both, would constitute an Event of Default hereunder and (B)
in respect of which the Company shall not have taken reasonable steps to cure,
(ii) the Company shall be in default with respect to its payment of any
obligations under the Guarantee or (iii) the Company shall have given notice of
its selection of an Extension Period as provided herein and shall not have
rescinded such notice, or such period, or any extension thereof, shall be
continuing, then the Company shall not, and shall cause any Subsidiary not to,
(x) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any shares of the
Company's capital stock or (y) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees of indebtedness for money borrowed) of the Company that
rank pari passu with or junior to the Debentures (other than (1) any dividend,
redemption, liquidation, interest, principal or guarantee payment by the
Company where the payment is made by way of securities (including capital
stock) that rank pari
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passu with or junior to the securities on which such dividend, redemption,
interest, principal or guarantee payment is being made, (2) redemptions or
purchases of any rights pursuant to any Rights Agreement and the declaration of
a dividend of such rights or the issuance of preferred stock under such plans
in the future, (3) payments under the Guarantee, (4) purchases of Company
Common Stock related to the issuance of Company Common Stock under any of the
Company's benefit plans for its directors, officers or employees, (5) as a
result of a reclassification of the Company's capital stock or the exchange or
conversion of one series or class of the Company's capital stock for another
series or class of the Company's capital stock and (6) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged).
The Company also covenants with each Holder of the Debentures
(i) that for so long as Preferred Securities are outstanding not to convert the
Debentures except pursuant to a notice of conversion delivered to the
Conversion Agent by a holder of Preferred Securities and (ii) to maintain
directly or indirectly 100% ownership of the Common Securities of the Trust;
provided, however, that any permitted successor of the Company hereunder may
succeed to the Company's ownership of such Common Securities, (iii) not to
voluntarily terminate, wind-up, liquidate or dissolve the Trust, except (a) in
connection with a distribution of the Debentures to the holders of Preferred
Securities in dissolution of the Trust or (b) in connection with certain
mergers, consolidations or amalgamations permitted by the Trust Agreement and
(iv) to use its reasonable efforts, consistent with the terms and provisions of
the Trust Agreement to cause the Trust to remain a business trust and not to be
classified as an association taxable as a corporation for United States Federal
income tax purposes.
SECTION 10.9 Payment of Expenses of the Trust. In
connection with the offering, sale and issuance of the Debentures to the
Property Trustee and in connection with the sale of the Preferred Securities by
the Trust, the Company shall:
(a) pay for all costs, fees and expenses relating to the
offering, sale and issuance of the Trust Securities, including
commissions, discounts and expenses payable pursuant to the Pricing
Agreement and compensation of the Trustee under the Indenture in
accordance with the provisions of Section 6.7 of the Indenture;
(b) be responsible for and pay for all debts and
obligations (other than with respect to the Preferred Securities) of
the Trust, pay for all costs and expenses of the Trust (including, but
not limited to, costs and expenses relating to the organization of the
Trust, the offering, sale and issuance of the Preferred Securities
(including commissions, discounts and expenses in connection
therewith), the fees and expenses of the Property Trustee and the
Delaware Trustee, the costs and expenses relating to the operation of
the Trust, including without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services, expenses
for printing and engraving and computing or accounting equipment,
paying agent(s), registrar(s), transfer agent(s), duplicating, travel
and telephone and other
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telecommunications expenses and costs and expenses incurred in
connection with the acquisition, financing, and disposition of Trust
assets); and
(c) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all
liabilities, costs and expenses with respect to such taxes of the
Trust.
ARTICLE 11
REDEMPTION OR EXCHANGE OF DEBENTURES
SECTION 11.1 Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Debentures shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of
the Company, the Company shall, not less than 45 days prior to the date fixed
for redemption (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee in writing of such date and of the principal amount of
Debentures to be redeemed.
SECTION 11.2 Selection of Debentures to Be Redeemed. If
less than all the Debentures are to be redeemed, the particular Debentures to
be redeemed shall be selected not more than 60 days prior to the Redemption
Date by the Trustee from the Outstanding Debentures not previously called for
redemption, by lot or by such other method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of a portion
of the principal amount of the Debentures Outstanding, provided that the
unredeemed portion of the principal amount of the Debentures be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for the Debentures.
The Trustee shall promptly notify the Company in writing of
the Debentures selected for partial redemption and 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 Debentures
shall relate, in the case of any Debenture redeemed or to be redeemed only in
part, to the portion of the principal amount of such Debenture which has been
or is to be redeemed. If the Company shall so direct, Debentures registered in
the name of the Company, any Affiliate or any Subsidiary thereof shall not be
included in the Debentures selected for redemption.
SECTION 11.3 Notice of Redemption. Notice of redemption
shall be given by first-class mail, postage prepaid, mailed not later than the
thirtieth (30th) day, and not earlier than the sixtieth (60th) day, prior to
the date fixed for redemption, to each Holder of Debentures to be redeemed, at
the address of such Holder as it appears in the Securities Register.
With respect to Debentures to be redeemed, each notice of
redemption shall state:
(a) the Redemption Date;
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(b) the redemption price at which the Debentures are to
be redeemed (the "Redemption Price");
(c) if less than all Outstanding Debentures are to be
redeemed, the identification (and, in the case of partial redemption,
the respective principal amounts) of the particular Debentures to be
redeemed (including, if relevant, the CUSIP or ISIN number);
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debenture or portion thereof,
and that upon deposit with the Paying Agent interest thereon, if any,
shall cease to accrue on and after the Redemption Date;
(e) the place or places where the Debentures are to be
surrendered for payment of the redemption price at which the
Debentures are to be redeemed;
(f) that a Holder of Debentures who desires to convert
Debentures called for redemption must satisfy the requirements for
conversion contained in the Debentures, the then existing Conversion
Price, and the date and time when the option to convert shall expire;
and
(g) the record date for the determination of holders
entitled to receive payment of any interest payable, as provided in
Section 11.5.
Notice of redemption of Debentures to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
written request, by the Trustee in the name and at the expense of the Company
and shall be irrevocable. The notice if mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives such notice. In any case, a failure to give such notice by
mail or any defect in the notice to the Holder of any Debenture designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debenture.
SECTION 11.4 Deposit of Redemption Price. Prior to
12:00 noon, New York City time, on the Redemption Date specified in the notice
of redemption given as provided in Section 11.3, the Company will deposit with
the Trustee or with one or more Paying Agents (or, if the Company is acting as
its own Paying Agent, segregate and hold in trust as provided in Section 4.2)
an amount of money sufficient to redeem on the Redemption Date all the
Debentures so called for redemption at the applicable Redemption Price.
If any Debenture called for redemption has been converted, any
money deposited with the Trustee or with any Paying Agent or so segregated and
held in trust for the redemption of such Debenture shall (subject to any right
of the Holder of such Debenture or any Predecessor Debenture to receive
interest as provided in the last paragraph of Section 3.7) be paid to the
Company upon Company Request or, if then held by the Company, shall be
discharged from such trust.
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SECTION 11.5 Debentures Payable on Redemption Date. If
notice of redemption has been given as provided in Section 11.3, the Debentures
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, including any accrued interest (and any
Additional Interest) thereon, and from and after such date (unless the Company
shall default in the payment of the Redemption Price or any accrued interest on
(including any Additional Interest)) such Debentures shall cease to bear
interest. Upon surrender of any such Debenture for redemption in accordance
with said notice, such Debenture shall be paid by the Company at the Redemption
Price, including any accrued interest (and any Additional Interest) to the
Redemption Date, provided, however, that installments of interest on Debentures
whose Interest Payment Date is on or prior to the Redemption Date shall be
payable to the Holders of such Debentures, or one of more Predecessor
Debentures, registered as such at the close of business on the relevant Regular
Record Dates or Special Record Dates, as the case may be, according to their
terms and the provisions of Section 3.7. In the event that any date on which
any Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect
of any such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, with the same force and effect as if made on such date. Payment of the
Redemption Price shall be made to the Holders of such Debentures as they appear
on the Securities Register for the Debentures on the relevant record date,
which shall be the date which is the fifteenth (15th) day (whether or not a
Business Day) preceding such Redemption Date.
If any Debenture called for redemption shall not be so paid
upon surrender thereof for redemption, the principal and any premium shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Debenture.
SECTION 11.6 Debentures Redeemed in Part. In the event
of any redemption in part, the Company shall not be required to (i) issue,
register the transfer of or exchange any Debenture during a period beginning at
9:00 a.m. (New York City time) 15 Business Days before any selection for
redemption of Debentures and ending at 5:00 p.m. (New York City time) on the
earliest date in which the relevant notice of redemption is deemed to have been
given to all Holders of Debentures to be so redeemed and (ii) register the
transfer of or exchange any Debentures so selected for redemption, in whole or
in part, except for the unredeemed portion of any Debentures being redeemed in
part.
Any Debenture which is to be redeemed only in part shall be
surrendered at the place of payment therefor (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and make available for delivery to
the Holder of such Debenture without service charge, a new Debenture or
Debentures, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
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of the principal of the Debenture so surrendered. Each Debenture shall be
subject to partial redemption only in the amount of $50 or integral multiples
thereof.
The Debentures are not entitled to the benefit of any sinking
or like fund.
SECTION 11.7 Mandatory Redemption. Upon (i) repayment
at maturity or (ii) as a result of acceleration upon the occurrence and
continuation of an Event of Default, the Company shall redeem the Outstanding
Debentures, in whole but not in part, at a redemption price equal to 100% of
the principal amount of such Debentures plus any accrued and unpaid interest,
including any Additional Interest, to the date fixed for redemption.
SECTION 11.8 Optional Redemption. Except as set forth
below, on and after August 15, 2002 and subject to the next succeeding
sentence, the Company shall have the right, at any time and from time to time,
to redeem the Debentures, in whole or in part, upon notice given as set forth
in Section 11.3 during the twelve-month periods beginning on August 15 in each
of the following years at the indicated Redemption Price (expressed as a
percentage of the principal amount of the Debentures being redeemed), together
with any accrued but unpaid interest on the portion being redeemed:
Redemption Price Redemption Price
Year (% of principal amount) Year (% of principal amount)
---- ----------------------- ---- -----------------------
2002 104.55% 2006 101.95%
2003 103.90% 2007 101.30%
2004 103.25% 2008 100.65%
2005 102.60% 2009 and thereafter 100.00%
The Company may not redeem the Debentures in part unless all
accrued and unpaid interest has been paid in full on all outstanding Debentures
for all quarterly interest periods terminating on or prior to the giving of
notice of the Redemption Date.
If a Tax Event shall occur and be continuing, the Company
shall have the right, upon not less than 30 nor more than 60 days' notice, to
redeem the Debentures, in whole but not in part, for cash within 90 days
following the occurrence of such Tax Event at the Tax Redemption Price plus any
accrued and unpaid interest, including Additional Interest, to the date fixed
for such redemption.
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SECTION 11.9 Exchange of Trust Securities for Debentures.
(a) At any time, the Company shall have the right to
dissolve the Trust and cause the Debentures to be distributed to the
holders of the Preferred Securities in dissolution of the Trust after
satisfaction of liabilities to creditors of the Trust as provided by
applicable law.
(b) If a Special Event in respect of the Trust shall
occur and be continuing, the Company shall give the Property Trustee
notice of the same. If a Special Event in respect of the Trust shall
occur and be continuing, the Trust Agreement requires the Property
Trustee to direct the Conversion Agent (as defined in the Trust
Agreement) to exchange all outstanding Trust Securities for the
Debentures having a principal amount equal to the aggregate
liquidation amount of the Trust Securities to be exchanged with
accrued interest in an amount equal to any unpaid distributions
(including any Additional Amounts) on the Trust Securities provided
that, in the case of a Tax Event that shall have occurred and be
continuing, the Company shall have the right to direct the Property
Trustee that less than all, or none, of the Trust Securities be so
exchanged (i) if and for so long as the Company shall have elected to
pay any Additional Sums such that the amounts received by holders of
the Trust Securities that remain outstanding are not reduced as a
result of such Tax Event, and shall not have revoked any such election
or failed to make such payments or (ii) if the Company shall instead
elect to redeem all the Debentures in the manner set forth in Section
11.8.
ARTICLE 12
SUBORDINATION OF DEBENTURES
SECTION 12.1 Debentures Subordinate to Senior Debt. The
Company covenants and agrees, and each Holder of a Debenture, by its acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article, the payment of the principal of (and
premium, if any) and interest (including any Additional Interest) on each and
all of the Debentures are hereby expressly made junior and subordinate and
subject in right of payment to the prior payment in full of all amounts then
due and payable in respect of all Senior Debt (whether outstanding on the date
hereof or hereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior Debt.
Notwithstanding the foregoing, any and all amounts payable to the Trustee
pursuant to Section 6.7 are not subject to the provisions of Article 12.
SECTION 12.2 Payment Over of Proceeds Upon Dissolution,
Etc. Upon any payment or distribution of assets of the Company to creditors
upon any liquidation, dissolution, winding up, reorganization, assignment for
the benefit of creditors, marshaling of assets or any bankruptcy, insolvency,
debt restructuring or similar proceeding in connection with any insolvency or
bankruptcy proceeding of the Company (each such event, if any, herein sometimes
referred to as
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a "Proceeding"), then the holders of Senior Debt shall be entitled to receive
payment in full of principal of (and premium, if any) and interest (including
interest after the commencement of any such proceeding at the rate specified in
the applicable Senior Debt), if any, on such Senior Debt, or provision shall be
made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, before the Holders of the
Debentures are entitled to receive or retain any payment or distribution of any
kind or character, whether in cash, property or Debentures (including any
payment or distribution which may be payable or deliverable by reason of the
payment of any other Debt of the Company (including the Debentures)
subordinated to the payment of the Debentures, but not including any payments
that are made from funds on deposit pursuant to Section 4.1(a)(ii)(B) or funds
on deposit for the redemption of Debentures for which notice of Redemption has
been given and the applicable Redemption Date has passed, such payment or
distribution being hereinafter referred to as a "Junior Subordinated Payment"),
in respect of principal of (or premium, if any) or interest (including any
Additional Interest, if any) on the Debentures or on account of the purchase or
other acquisition of Debentures by the Company or any Subsidiary and to that
end the holders of Senior Debt shall be entitled to receive, for application to
the payment thereof any payment or distribution of any kind of character,
whether in cash, property or Debentures, including any Junior Subordinated
Payment, which may be payable or deliverable in respect of the Debentures in
any such Proceeding.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Debenture shall have received
any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or Debentures, including any Junior Subordinated
Payment, before all Senior Debt is paid in full or payment thereof is provided
for in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, and if such fact shall, at or prior to the time of such
payment or distribution, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment or distribution shall
be paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making payment
or distribution of assets of the Company for application to the payment of all
Senior Debt remaining unpaid, to the extent necessary to pay all Senior Debt in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
For the purposes of this Article only, the words "any payment
or distribution of any kind or character, whether in cash, property or
securities" shall not be deemed to include shares of stock of the Company, as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment which
securities are subordinated in right of payment to all then outstanding Senior
Debt to substantially the same extent as the Debentures are so subordinated as
provided in this Article. The consolidation of the Company with, or the merger
of the Company into, another Person or the liquidation or dissolution of the
Company following the sale of all or substantially all of its properties and
assets as an entirety to another Person or the liquidation or dissolution of
the Company following the sale of all or substantially all of its properties
and assets as an entirety to another Person upon the terms and conditions set
forth in Article 8 shall not be deemed a Proceeding for the purposes of this
Section,
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if the Person formed by such consolidation or into which the Company is merged
or the Person which acquires by sale such properties and assets as an entirety,
as the case may be, shall, as a part of such consolidation, merger, or sale
comply with the conditions set forth in Article 8.
SECTION 12.3 Prior Payment to Senior Debt upon
Acceleration of Debentures. In the event that the Debentures are declared due
and payable before the Maturity Date, then and in such event the holders of the
Senior Debt outstanding at the time the Debentures so become due and payable
shall be entitled to receive payment in full of all amounts due on or in
respect of such Senior Debt (including any amounts due upon acceleration), or
provision shall be made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt, before the
Holders of the Debentures are entitled to receive any payment or distribution
of any kind or character, whether in cash, properties or securities (including
any Junior Subordinated Payment) by the Company on account of the principal of
(or premium, if any) or interest (including any Additional Interest) on the
Debentures or on account of the purchase or other acquisition of Debentures by
the Company or any Subsidiary.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holders of the Debentures
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made known, as set forth in
Section 12.10, to a Responsible Officer of the Trustee or, as the case may be,
such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 12.2 would be applicable.
SECTION 12.4 No Payment When Senior Debt in Default.
(a) In the event and during the continuation of any
default in the payment of principal of (or premium, if any) or interest on any
Senior Debt, or in the event that any event of default with respect to any
Senior Debt shall have occurred and be continuing and shall have resulted in
such Senior Debt becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, unless and until such
event of default shall have been cured or waived or shall have ceased to exist
and such acceleration shall have been rescinded or annulled, or (b) in the
event any judicial proceeding shall be pending with respect to any such default
in payment or such event or default, then no payment or distribution of any
kind or character, whether in cash, properties or Debentures (including any
Junior Subordinated Payment) shall be made by the Company on account of
principal of (or premium, if any) or interest (including any Additional
Interest), if any, on the Debentures or on account of the purchase or other
acquisition of Debentures by the Company or any Subsidiary other than payments
made from funds on deposit pursuant to Section 4.1(a)(ii)(B) or from funds on
deposit for the redemption of Debentures for which notice of redemption has
been given and the Redemption Date has passed.
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In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holders of the Debentures
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made known as set forth in
Section 12.10, to a Responsible Officer of the Trustee or, as the case may be,
such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 12.2 would be applicable.
SECTION 12.5 Payment Permitted If No Default. Nothing
contained in this Article or elsewhere in this Indenture or in any of the
Debentures shall prevent (a) the Company, at any time except during the
pendency of any Proceeding referred to in Section 12.2 or under the conditions
described in Sections 12.3 and 12.4, from making payments at any time of
principal of (or premium, if any) or interest on the Debentures, or (b) the
application by the Trustee of any money deposited with it hereunder to the
payment of or on account of the principal of (or premium, if any) or interest
(including any Additional Interest) on the Debentures or the retention of such
payment by the Holders, if, at the time of such application by the Trustee, a
Responsible Officer of the Trustee did not have actual knowledge that such
payment would have been prohibited by the provisions of this Article.
SECTION 12.6 Subrogation to Rights of Holders of Senior
Debt. Subject to the payment in full of all Senior Debt, or the provision for
such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Debt, the Holders of the Debentures shall be
subrogated to the extent of the payments or distributions made to the holders
of such Senior Debt pursuant to the provisions of this Article (equally and
ratably with the holders of all indebtedness of the Company which by its
express terms is subordinated to Senior Debt of the Company to substantially
the same extent as the Debentures are subordinated to the Senior Debt and is
entitled to like rights of subrogation by reason of any payments or
distributions made to holders of such Senior Debt) to the rights of the holders
of such Senior Debt to receive payments and distributions of cash, property and
securities applicable to the Senior Debt until the principal of (and premium,
if any) and interest on the Debentures shall be paid in full. For purposes of
such subrogation, no payments or distributions to the holders of the Senior
Debt of any cash, property or securities to which the Holders of the Debentures
or the Trustee would be entitled except for the provisions of this Article, and
no payments pursuant to the provisions of this Article to the holders of Senior
Debt by Holders of the Debentures or the Trustee, shall, as among the Company,
its creditors other than holders of Senior Debt, and the Holders of the
Debentures, be deemed to be a payment or distribution by the Company to or on
account of the Senior Debt.
SECTION 12.7 Provisions Solely to Define Relative
Rights. The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Debentures on the
one hand and the holders of Senior Debt on the other hand. Nothing contained
in this Article or elsewhere in this Indenture or in the Debentures is intended
to or shall (a) impair,
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as between the Company and the Holders of the Debentures, the obligations of
the Company, which are absolute and unconditional, to pay to the Holders of the
Debentures the principal of (and premium, if any) and interest (including any
Additional Interest) on the Debentures as and when the same shall become due
and payable in accordance with their terms, or (b) affect the relative rights
against the Company of the Holders of the Debentures and creditors of the
Company other than their rights in relation to the holders of Senior Debt, or
(c) prevent the Trustee or the Holder of any Debenture from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture including, without limitation, filing and voting claims in any
Proceeding, subject to the rights, if any, under this Article of the holders of
Senior Debt to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
SECTION 12.8 Trustee to Effectuate Subordination. Each
Holder of a Debenture by his or her acceptance thereof authorizes and directs
the Trustee on his or her behalf to take such action as may be necessary or
appropriate to acknowledge or effectuate the subordination provided in this
Article and appoints the Trustee his or her attorney-in-fact for any and all
such purposes.
SECTION 12.9 No Waiver of Subordination Provisions. No
right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof that any such holder may have or be
otherwise charged with.
SECTION 12.10 Notice to Trustee. The Company shall
give prompt written notice to the Trustee of any fact known to the Company
which would prohibit the making of any payment to or by the Trustee in respect
of the Debentures. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Debentures, unless and until the Trustee shall
have received written notice thereof from the Company or a person representing
itself as a holder of Senior Debt or from any trustee, agent or representative
therefor (whether or not the facts contained in such notice are true).
SECTION 12.11 Reliance on Judicial Order or Certificate
of Liquidating Agent. Upon any payment or distribution of assets of the
Company referred to in this Article, the Trustee, subject to the provisions of
Article 6, and the Holders of the Debentures shall be entitled to conclusively
rely upon any order or decree entered by any court of competent jurisdiction in
which a Proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of
creditors, agent or other Person making such payment or distribution, delivered
to the Trustee or to the Holders of Debentures, for the purpose of ascertaining
the Persons entitled to participate in such payment or distribution, the
holders of the Senior Debt and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article.
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SECTION 12.12 Trustee Not Fiduciary for Holders of
Senior Debt. With respect to the holders of the Senior Debt of the Company,
the Trustee undertakes to perform or observe only such of its obligations and
covenants as are set forth in this Article 12, and no implied covenants or
obligations with respect to the holders of such Senior Debt shall be read into
this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of such Senior Debt and, subject to the
provisions of Section 6.3, the Trustee shall not be liable to the holder of any
Senior Debt if it shall pay over or deliver to the Holders, the Company, or any
other person, money or assets to which any holder of such Senior Debt shall be
entitled to by virtue of this Article 12 or otherwise.
SECTION 12.13 Rights of Trustee as Holder of Senior
Debt; Preservation of Trustee's Rights. The Trustee in its individual capacity
shall be entitled to all the rights set forth in this Article with respect to
any Senior Debt which may at any time be held by it, to the same extent as any
other holder of Senior Debt, and, subject to the requirements of the Trust
Indenture Act, nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
SECTION 12.14 Article Applicable to Paying Agents. In
case at any time any Paying Agent other than the Trustee shall have been
appointed by the Company and be then acting hereunder, the term "Trustee" as
used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning
as fully for all intent and purposes as if such Paying Agent were named in this
Article in addition to or in place of the Trustee.
SECTION 12.15 Certain Conversions or Exchanges Deemed
Payment. For the purpose of this Article only, (a) the issuance and delivery
of junior securities upon conversion or exchange of Debentures shall not be
deemed to constitute a payment or distribution on account of the principal of
(or premium, if any) or interest (including any Additional Interest) on the
Debentures or on account of the purchase or other acquisition of Debentures,
and (b) the payment, issuance or delivery of cash (including any payments for
fractional shares), property or securities (other than junior securities) upon
conversion or exchange of a Debenture shall be deemed to constitute payment on
account of the principal of such security. For the purpose of this Section,
the term "junior securities" means (i) shares of any stock of any class of the
Company and (ii) securities of the Company which are subordinated in right of
payment to all Senior Debt which may be outstanding at the time of issuance or
delivery of such securities to substantially the same extent as, or to a
greater extent than, the Debentures are so subordinated as provided in this
Article.
ARTICLE 13
CONVERSION OF DEBENTURES
SECTION 13.1 Conversion Rights. Subject to and upon
compliance with the provisions of this Article, the Debentures are convertible,
at the option of the Holder, at any time prior to the redemption or maturity,
into fully paid and nonassessable shares of Company Common
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Stock at an initial conversion rate of 1.3646 shares of Company Common Stock
for each $50 in aggregate principal amount of Debentures (equal to a conversion
price of approximately $36.64 per share of Company Common Stock), subject to
adjustment as described in this Article 13 (as adjusted, the "Conversion
Price"). A Holder of Debentures may convert any portion of the principal
amount of the Debentures into that number of fully paid and nonassessable
shares of Company Common Stock (calculated as to each conversion to the nearest
1/100th of a share) obtained by dividing the principal amount of the Debentures
to be converted by the Conversion Price. In case a Debenture or portion
thereof is called for redemption, such conversion right in respect of the
Debenture or portion so called shall expire at the close of business on the
Redemption Date, unless the Company defaults in making the payment due upon
redemption.
SECTION 13.2 Conversion Procedures.
(a) In order to convert all or a portion of the
Debentures, the Holder thereof shall deliver to the Property Trustee,
as conversion agent or to such other agent appointed for such purposes
(the "Conversion Agent"), an irrevocable Notice of Conversion setting
forth the principal amount of Debentures to be converted, together
with the name or names, if other than the Holder, in which the shares
of Company Common Stock should be issued upon conversion and, if such
Debentures are definitive Debentures, surrender to the Conversion
Agent the Debentures to be converted, duly endorsed or assigned to the
Company or in blank. In addition, a holder of Preferred Securities
may exercise its right under the Trust Agreement to convert such
Preferred Securities into Company Common Stock by delivering to the
Conversion Agent an irrevocable Notice of Conversion setting forth the
information called for by the preceding sentence and directing the
Conversion Agent (i) to exchange such Preferred Security for a portion
of the Debentures held by the Trust (at an exchange rate of $50
principal amount of Debentures for each Preferred Security) and (ii)
to immediately convert such Debentures, on behalf of such holder, into
Company Common Stock pursuant to this Article 13 and, if such
Preferred Securities are in definitive form, surrendering such
Preferred Securities, duly endorsed or assigned to the Company or in
blank. So long as any Preferred Securities are outstanding, the Trust
shall not convert any Debentures except pursuant to a Notice of
Conversion delivered to the Conversion Agent by a holder of Preferred
Securities.
If a Notice of Conversion is delivered on or after the Regular
Record Date and prior to the subsequent Interest Payment Date, the
Holder of record on the Regular Record Date will be entitled to
receive the interest paid on the subsequent Interest Payment Date on
the portion of Debentures to be converted notwithstanding the
conversion thereof prior to such Interest Payment Date. Except as
otherwise provided in the immediately preceding sentence, in the case
of any Debenture which is converted, interest whose Interest Payment
Date is on or after the date of conversion of such Debenture shall not
be payable, and the Company shall not make nor be required to make any
other payment, adjustment or allowance with respect to accrued but
unpaid interest on the Debentures being converted, which shall be
deemed to be paid in full. Debentures submitted for conversion prior
to the expiration of conversion
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rights as provided in Section 13.3 shall be deemed to have been
effected immediately prior to the close of business on the day on
which the Notice of Conversion was received (the "Conversion Date") by
the Conversion Agent from the Holder or from a holder of the Preferred
Securities effecting a conversion thereof pursuant to its conversion
rights under the Trust Agreement, as the case may be. The Person or
Persons entitled to receive Company Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder or
holders of such Company Common Stock as of the Conversion Date and
such Person or Persons will cease to be a record Holder or record
Holders of the Debentures on that date. As promptly as practicable on
or after the Conversion Date, the Company shall issue and deliver at
the office of the Conversion Agent, unless otherwise directed by the
Holder or holder in the Notice of Conversion, a certificate or
certificates for the number of full shares of Company Common Stock
issuable upon such conversion, together with the cash payment, if any,
in lieu of any fraction of any share to the Person or Persons entitled
to receive the same. The Conversion Agent shall deliver such
certificate or certificates to such Person or Persons.
(b) The Company's delivery upon conversion of the fixed
number of shares of Company Common Stock into which the Debentures are
convertible (together with the cash payment, if any, in lieu of
fractional shares) shall be deemed to satisfy the Company's obligation
to pay the principal amount at Maturity of the portion of Debentures
so converted and any unpaid interest (including Additional Interest)
accrued on such Debentures at the time of such conversion.
(c) No fractional shares of Company Common Stock will be
issued as a result of conversion, but in lieu thereof, the Company
shall pay to the Conversion Agent a cash adjustment in an amount equal
to the same fraction of the Current Market Price with respect to such
fractional interest on the date on which the Debentures or Preferred
Securities, as the case may be, were duly surrendered to the
Conversion Agent for conversion, and the Conversion Agent in turn will
make such payment, if any, to the Holder of the Securities or the
holder of the Preferred Securities so converted.
(d) In the event of the conversion of any Debenture in
part only, a new Debenture or Debentures for the unconverted portion
thereof will be issued in the name of the Holder thereof upon the
cancellation of the Debenture converted in part in accordance with
Section 3.5.
(e) In effecting the conversion transactions described in
this Section, the Conversion Agent is acting as agent of the holders
of Preferred Securities (in the exchange of Preferred Securities for
Debentures) and as agent of the Holders of Debentures (in the
conversion of Debentures into Company Common Stock), as the case may
be, directing it to effect such conversion transactions. The
Conversion Agent is hereby authorized (i) to exchange Debentures held
by the Trust from time to time for Preferred Securities in connection
with the conversion of such Preferred Securities in accordance with
this
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Article 13 and (ii) to convert all or a portion of the Debentures into
Company Common Stock and thereupon to deliver such shares of Company
Common Stock in accordance with the provisions of this Article 13 and
to deliver to the Trust a new Debenture or Debentures for any
resulting unconverted principal amount.
(f) The Company shall at all times reserve and keep
available out of its authorized and unissued Company Common Stock,
solely for issuance upon the conversion of the Debentures, such number
of shares of Company Common Stock as shall from time to time be
issuable upon the conversion of all the Debentures then outstanding.
Notwithstanding the foregoing, the Company shall be entitled to
deliver upon conversion of Debentures shares of Company Common Stock
reacquired and held in the treasury of the Company (in lieu of the
issuance of authorized and unissued shares of Company Common Stock) so
long as any such treasury shares are free and clear of all liens,
charges, security interests or encumbrances. Whenever the Company
issues shares of Company Common Stock upon conversion of Debentures,
and the Company has in effect at such time a stock purchase rights
agreement ("Rights Agreement") under which holders of Company Common
Stock are issued rights ("Rights") entitling the holders under certain
circumstances to purchase an additional share or shares of stock, the
Company will issue, together with each such share of Company Common
Stock, such number of Rights (which number may be a fraction) as shall
at that time be issuable with a share of Company Common Stock pursuant
to such stock purchase rights agreement. Any shares of Company Common
Stock issued upon conversion of the Debentures shall be duly
authorized, validly issued and fully paid and nonassessable. The
Conversion Agent shall deliver the shares of Company Common Stock
received upon conversion of the Debentures to the converting Holder
free and clear of all liens, charges, security interests and
encumbrances, except for United States withholding taxes. The Company
shall use its reasonable best efforts to obtain and keep in force such
governmental or regulatory permits or other authorizations as may be
required by law, and shall comply with all applicable requirements as
to registration or qualification of Company Common Stock (and all
requirements to list Company Common Stock issuable upon conversion of
Debentures that are at the time applicable), in order to enable the
Company to lawfully issue Company Common Stock upon conversion of the
Debentures and to lawfully deliver Company Common Stock to each Holder
upon conversion of the Debentures.
(g) The Company will pay any and all taxes that may be
payable in respect of the issue or delivery of shares of Company
Common Stock on conversion of Debentures. The Company shall not,
however, be required to pay any tax which may be payable in respect of
any transfer involved in the issue and delivery of shares of Company
Common Stock in a name other than that in which the Debentures so
converted were registered, and no such issue or delivery shall be made
unless and until the Person requesting such issue has paid to the
Conversion Agent the amount of any such tax, or has established to
the satisfaction of the Conversion Agent that such tax has been paid.
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(h) Nothing in this Article 13 shall limit the
requirement of the Company to withhold taxes pursuant to the terms of
the Debentures or as set forth in this Agreement or otherwise require
the Trustee or the Company to pay any amounts on account of such
withholdings.
SECTION 13.3 Expiration of Conversion Rights. The
conversion rights of Holders of Debentures shall expire at the close of
business on the date set for redemption of the Debentures upon the redemption
or Maturity of the Debentures.
SECTION 13.4 Conversion Price Adjustments. The
conversion price shall be subject to adjustment (without duplication) from time
to time as follows:
(a) In case the Company shall, while any of the
Debentures are Outstanding, (i) pay a dividend or make a distribution
with respect to its Company Common Stock exclusively in shares of
Company Common Stock, (ii) subdivide its outstanding shares of Company
Common Stock, (iii) combine its outstanding shares of Company Common
Stock into a smaller number of shares or (iv) issue by
reclassification of its shares of Company Common Stock any shares of
capital stock of the Company, the conversion privilege and the
Conversion Price in effect immediately prior to such action shall be
adjusted so that the Holder of any Debentures thereafter surrendered
for conversion shall be entitled to receive the number of shares of
capital stock of the Company which he would have owned immediately
following such action had such Debentures been converted immediately
prior thereto. An adjustment made pursuant to this subsection (a)
shall become effective immediately after the record date in the case
of a dividend or other distribution and shall become effective
immediately after the effective date in case of a subdivision,
combination or reclassification (or immediately after the record date
if a record date shall have been established for such event). If, as
a result of an adjustment made pursuant to this subsection (a), the
Holder of any Debenture thereafter surrendered for conversion shall
become entitled to receive shares of two or more classes or series of
capital stock of the Company, the Board of Directors (whose
determination shall be conclusive and shall be described in a Board
Resolution filed with the Trustee) shall determine the allocation of
the adjusted Conversion Price between or among shares of such classes
or series of capital stock. In the event that such dividend,
distribution, subdivision, combination or issuance is not so paid or
made, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such record date had
not been fixed.
(b) In case the Company shall, while any of the
Debentures are Outstanding, issue rights or warrants to all holders of
its Company Common Stock entitling them (for a period expiring within
45 days after the record date for the determination of stockholders
entitled to receive such rights or warrants) to subscribe for or
purchase shares of Company Common Stock at a price per share less than
the Current Market Price per share of Company Common Stock on such
record date, the Conversion Price for the Debentures shall be adjusted
so that the same shall equal the price determined by multiplying the
Conversion Price in effect
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immediately prior to the date of issuance of such rights or warrants
by a fraction of which the numerator shall be the number of shares of
Company Common Stock outstanding on the date of issuance of such
rights or warrants plus the number of shares which the aggregate
offering price of the total number of shares so offered for
subscription or purchase would purchase at such Current Market Price,
and of which the denominator shall be the number of shares of Company
Common Stock outstanding on the date of issuance of such rights or
warrants plus the number of additional shares of Company Common Stock
offered for subscription or purchase. Such adjustment shall become
effective immediately after the record date for the determination of
stockholders entitled to receive such rights or warrants. For the
purposes of this subsection, the number of shares of Company Common
Stock at any time outstanding shall not include shares held in the
treasury of the Company. The Company shall not issue any rights or
warrants in respect of shares of Company Common Stock held in the
treasury of the Company. In case any rights or warrants referred to
in this subsection in respect of which an adjustment shall have been
made shall expire unexercised within 45 days after the same shall have
been distributed or issued by the Company, the Conversion Price shall
be readjusted at the time of such expiration to the Conversion Price
that would have been in effect if no adjustment had been made on
account of the distribution or issuance of such expired rights or
warrants.
(c) Subject to the last sentence of this subparagraph, in
case the Company shall, by dividend or otherwise, distribute to all
holders of its Company Common Stock evidences of its indebtedness,
shares of any class or series of capital stock, cash or assets
(including securities, but excluding any rights or warrants referred
to in subparagraph (b), any dividend or distribution paid exclusively
in cash and any dividend or distribution referred to in subparagraph
(a) of this Section 13.4), the Conversion Price shall be reduced so
that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the effectiveness of
the Conversion Price reduction contemplated by this subparagraph (c)
by a fraction of which the numerator shall be the Current Market Price
per share of Company Common Stock on the date fixed for the payment of
such distribution (the "Reference Date") less the fair market value
(as determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a resolution of the
Board of Directors), on the Reference Date, of the portion of the
evidences of indebtedness, shares of capital stock, cash and assets so
distributed applicable to one share of Company Common Stock and the
denominator shall be such Current Market Price per share of Company
Common Stock, such reduction to become effective immediately prior to
the opening of business on the day following the Reference Date. In
the event that such dividend or distribution is not so paid or made,
the Conversion Price shall again be adjusted to be the Conversion
Price which would then be in effect if such dividend or distribution
had not occurred. For purposes of this subparagraph (c), any dividend
or distribution that includes shares of Company Common Stock or rights
or warrants to subscribe for or purchase shares of Company Common
Stock shall be deemed instead to be (i) a dividend or distribution of
the evidences of indebtedness, shares of capital stock, cash or assets
other than such shares of Company Common Stock or such rights or
warrants (making any Conversion Price
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reduction required by this subparagraph (c)) immediately followed by
(ii) a dividend or distribution of such shares of Company Common Stock
or such rights or warrants (making any further conversion price
reduction required by subparagraph (a) or (b)), except (A) the
Reference Date of such dividend or distribution as defined in this
subparagraph shall be substituted as (x) "the record date in the case
of a dividend or other distribution," and (y) "the record date for the
determination of stockholders entitled to receive such rights or
warrants" and (z) "the date fixed for such determination" within the
meaning of subparagraphs (a) and (b) and (B) any shares of Company
Common Stock included in such dividend or distribution shall not be
deemed outstanding for purposes of computing any adjustment of the
conversion price in subparagraph (a).
(d) In case the Company shall pay or make a dividend or
other distribution on its Company Common Stock exclusively in cash
(excluding (i) all cash dividends, if the amount thereof does not
exceed the per share amount of the immediately preceding regular cash
dividend (as adjusted to reflect any of the events referred to in
subparagraphs (a), (b), (c), (d) or (e) of this Section) and (ii) all
cash dividends, if the annualized amount thereof per share of Company
Common Stock does not exceed 12.5% of the Current Market Price per
share of Company Common Stock on the trading day immediately preceding
the date of declaration of such dividend), the Conversion Price shall
be reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
effectiveness of the Conversion Price reduction contemplated by this
subparagraph (d) by a fraction of which the numerator shall be the
Current Market Price per share of Company Common Stock on the date
fixed for the payment of such distribution less the amount of cash so
distributed (excluding that portion of such distribution that does not
exceed 12.5% of the Current Market Price per share, determined as
provided above) applicable to one share of Company Common Stock and
the denominator shall be such Current Market Price per share of
Company Common Stock, such reduction to become effective immediately
prior to the opening of business on the day following the date fixed
for the payment of such distribution; provided, however, that in the
event the portion of the cash so distributed applicable to one share
of Company Common Stock is equal to or greater than the Current Market
Price per share of Company Common Stock on the record date mentioned
above (excluding that portion of such distribution that does not
exceed 12.5% of the Current Market Price per share, determined as
provided above), in lieu of the foregoing adjustment, adequate
provision shall be made so that each Holder of shares of Debentures
shall have the right to receive upon conversion the amount of cash
such Holder would have received had such Holder converted each share
of the Debentures immediately prior to the record date for the
distribution of the cash (less that portion of such distribution that
does not exceed 12.5% of the Current Market Price per share,
determined as provided above). In the event that such dividend or
distribution is not so paid or made, the Conversion Price shall again
be adjusted to be the conversion price which would then be in effect
if such record date had not been fixed.
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(e) In case a tender or exchange offer (other than an
odd-lot offer) made by the Company or any Subsidiary of the Company
for all or any portion of Company Common Stock shall expire and such
tender or exchange offer shall involve the payment by the Company or
such Subsidiary of consideration per share of Company Common Stock
having a fair market value (as determined in good faith by the Board
of Directors, whose determination shall be conclusive and described in
a resolution of the Board of Directors) at the last time (the
"Expiration Time") tenders or exchanges may be made pursuant to such
tender or exchange offer (as it shall have been amended) that exceeds
110% of the Current Market Price per share of Company Common Stock on
the trading day next succeeding the Expiration Time, the Conversion
Price shall be reduced so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately
prior to the effectiveness of the Conversion Price reduction
contemplated by this subparagraph (e) by a fraction of which the
numerator shall be the number of shares of Company Common Stock
outstanding (including any tendered or exchanged shares) at the
Expiration Time (including the Purchased Shares) (as defined below)
multiplied by the Current Market Price per share of Company Common
Stock on the Trading Day next succeeding the Expiration Time and the
denominator shall be the sum of (x) the fair market value (determined
as aforesaid) of the aggregate consideration payable to stockholders
based on the acceptance (up to any maximum specified in the terms of
the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any such maximum, being referred to as the
"Purchased Shares") (excluding that portion of such consideration that
does not exceed 110% of the Current Market Price per share) and (y)
the product of the number of shares of Company Common Stock
outstanding (less any Purchased Shares) at the Expiration Time and the
Current Market Price per share of Company Common Stock on the trading
day next succeeding the Expiration Time, such reduction to become
effective immediately prior to the opening of business on the day
following the Expiration Time. In the event that such tender or
exchange offer is not so made, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect if
such record date had not been fixed.
(f) If the distribution date for any Rights of the
Company provided in any Rights Agreement occurs prior to the
Conversion Date, and a Holder of the Debentures who converts such
Debentures after such distribution date is not entitled to receive the
Rights that would otherwise be attached (but for the date of
conversion) to the shares of Company Common Stock received upon such
conversion, then an adjustment shall be made to the Conversion Price
pursuant to clause (ii) of Section 13.4(a) as if the Rights were being
distributed to Company Common Stockholders of the Company immediately
prior to such conversion. If such an adjustment is made and the
Rights are later redeemed, invalidated or terminated, then a
corresponding reversing adjustment shall be made to the Conversion
Price, on an equitable basis, to take account of such event.
(g) The Company shall have the right to reduce from time
to time the Conversion Price by any amount selected by the Company for
any period of at least 20 days, provided,
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that Company shall give at least 15 days' written notice of such
reduction to the Trustee and the Property Trustee. The Company may,
at its option, make such reductions in the Conversion Price, in
addition to those set forth above in Section 13.4(a), as the Board of
Directors deems advisable to avoid or diminish any income tax to
holders of Company Common Stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event
treated as such for United States Federal income tax purposes.
(h) Notwithstanding anything to the contrary in this
Section 13.4, no adjustment of the Conversion Price will be made upon
the issuance of any shares of Company Common Stock (or securities
convertible or exchangeable for Company Common Stock), except as
specifically provided above, including pursuant to any present or
future plan providing for the reinvestment of dividends or interest
payable on securities of the Company and the investment of additional
optional amounts in shares of Company Common Stock under any such
plan, or the issuance of any shares of Company Common Stock or options
or rights to purchase such shares pursuant to any present or future
employee benefit plan or program of the Company or pursuant to any
option, warrant, right, or exercisable, exchangeable or convertible
security which does not constitute an issuance to all holders of
Company Common Stock of rights or warrants entitling holders of such
rights or warrants to subscribe for or purchase Company Common Stock
at less than the Current Market Price. Further, such issuances shall
not be deemed to constitute an issuance of Company Common Stock or
exercisable, exchangeable or convertible securities by the Company to
which any of the adjustment provisions described above applies. There
shall also be no adjustment of the Conversion Price in case of the
issuance of any stock (or securities convertible into or exchangeable
for stock) of the Company except as specifically described in this
Article 13. No adjustment in the Conversion Price will be required
unless such adjustment would require an increase or decrease of at
least 1% of the Conversion Price, but any adjustment that would
otherwise be required to be made shall be carried forward and taken
into account in a subsequent adjustment.
(i) If any action would require adjustment of the
Conversion Price pursuant to more than one of the provisions described
above, only one adjustment shall be made and such adjustment shall be
the amount of adjustment that has the highest absolute value to the
Holder of the Debentures.
SECTION 13.5 Fundamental Change.
(a) In the event that the Company is a party to any
transaction (including, without limitation, a merger other than a
merger that does not result in a reclassification, conversion,
exchange or cancellation of Company Common Stock), consolidation, sale
of all or substantially all of the assets of the Company,
recapitalization or reclassification of Company Common Stock (other
than a change in par value, or from par value to no par value, or from
no par value to par value or as a result of a subdivision or
combination of Company Common Stock) or any compulsory share exchange
(each of the foregoing being referred to as a
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"Transaction"), in each case, as a result of which shares of Company
Common Stock shall be converted into the right to receive, or shall be
exchanged for, (i) in the case of any Transaction other than a
Transaction involving a Common Stock Fundamental Change (and subject
to funds being legally available for such purpose under applicable law
at the time of such conversion), securities, cash or other property,
each Debenture shall thereafter be convertible into the kind and, in
the case of a Transaction which does not involve a Fundamental Change,
amount of securities, cash and other property receivable upon the
consummation of such Transaction by a holder of that number of shares
of Company Common Stock into which a Debenture was convertible
immediately prior to such Transaction, or (ii) in the case of a
Transaction involving a Common Stock Fundamental Change, common stock,
each Debenture shall thereafter be convertible (in the manner
described herein) into common stock of the kind received by holders of
Company Common Stock (but in each case after giving effect to any
adjustment discussed in paragraphs (b) and (c) relating to a
Fundamental Change if such Transaction constitutes a Fundamental
Change). The holders of Debentures or Preferred Securities will have
no voting rights with respect to any Transaction.
(b) If any Fundamental Change occurs, then the Conversion
Price in effect will be adjusted immediately after such Fundamental
Change as described in paragraph (c) below. In addition, in the event
of a Common Stock Fundamental Change, each Debenture shall be
convertible solely into common stock of the kind received by holders
of Company Common Stock as a result of such Common Stock Fundamental
Change.
(c) The Conversion Price in the case of any Transaction
involving a Fundamental Change will be adjusted immediately after such
Fundamental Change:
(i) in the case of a Non-Stock Fundamental
Change, the Conversion Price of the Debentures will thereupon
become the lower of (A) the Conversion Price in effect
immediately prior to such Non- Stock Fundamental Change, but
after giving effect to any other prior adjustments effected
pursuant to the preceding paragraphs, and (B) the result
obtained by multiplying the greater of the Applicable Price or
the then applicable Reference Market Price by a fraction of
which the numerator will be $50 and the denominator will be
(x) the amount of the Redemption Price for one Debenture if
the Redemption Date were the date of such Non-Stock
Fundamental Change (or, for the period commencing on the first
date of original issuance of the Debentures and through August
14, 2000, and the twelve-month periods commencing August 15,
2000 and August 15, 2001, the product of 106.50%, 105.85% and
105.20%, respectively, multiplied by $50) plus (y) any
then-accrued and unpaid interest on one Debenture; and
(ii) in the case of a Common Stock Fundamental
Change, the Conversion Price of the Debentures in effect
immediately prior to such Common Stock Fundamental Change, but
after giving effect to any other prior adjustments effected
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pursuant to the preceding paragraphs, will thereupon be
adjusted by multiplying such Conversion Price by a fraction of
which the numerator will be the Purchaser Stock Price and the
denominator will be the Applicable Price; provided, however,
that in the event of a Common Stock Fundamental Change in
which (A) 100% of the value of the consideration received by a
holder of common stock is common stock of the successor,
acquiror, or other third party (and cash, if any, is paid only
with respect to any fractional interests in such common stock
resulting from such Common Stock Fundamental Change) and (B)
all of common stock will have been exchanged for, converted
into, or acquired for common stock (and cash with respect to
fractional interests) of the successor, acquiror, or other
third party, the Conversion Price of the Debentures in effect
immediately prior to such Common Stock Fundamental Change will
thereupon be adjusted by multiplying such Conversion Price by
a fraction of which the numerator will be one and the
denominator will be the number of shares of common stock of
the successor, acquiror, or other third party received by a
holder of one share of common stock as a result of such Common
Stock Fundamental Change.
SECTION 13.6 Notice of Adjustments of Conversion Price.
Whenever the Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted conversion
price and shall prepare a certificate signed by the Chief Financial
Officer or the Treasurer of the Company setting forth the adjusted
conversion price and showing in reasonable detail the facts upon which
such adjustment is based, and such certificate shall forthwith be
filed with the Trustee, the Conversion Agent and the transfer agent
for the Preferred Securities and the Debentures; and
(b) a notice stating the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price shall as soon
as practicable be mailed by the Company to all record holders of
Preferred Securities and the Debentures at their last addresses as
they appear upon the stock transfer books of the Company and the Trust
and the Securities Registrar.
SECTION 13.7 Prior Notice of Certain Events. In case:
(a) the Company shall (i) declare any dividend (or any
other distribution) on its Company Common Stock, other than (A) a
dividend payable in shares of Company Common Stock or (B) a dividend
payable in cash that would not require an adjustment pursuant to
Section 13.4(c) or (d) or (ii) authorize a tender or exchange offer
that would require an adjustment pursuant to Section 13.4(e);
(b) the Company shall authorize the granting to all
holders of Company Common Stock of rights or warrants to subscribe for
or purchase any shares of stock of any class or series or of any other
rights or warrants;
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(c) of any reclassification of Company Common Stock
(other than a subdivision or combination of the outstanding Company
Common Stock, or a change in par value, or from par value to no par
value, or from no par value to par value), or of any consolidation or
merger to which the Company is a party and for which approval of
stockholders of the Company shall be required (except solely as a
result of the rules of the New York Stock Exchange or the NASD), or of
the sale or transfer of all or substantially all of the assets of the
Company or of any compulsory share exchange whereby Company Common
Stock is converted into other securities, cash or other property; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then the Company shall (A) if any Preferred Securities are outstanding under
the Trust Agreement, cause to be filed with the transfer agent for the
Preferred Securities, and shall cause to be mailed to the holders of record of
the Preferred Securities, at their last addresses as they shall appear upon the
stock transfer books of the Trust or (B) shall cause to be mailed to all
Holders at their last addresses as they shall appear in the Security Register,
at least 15 days prior to the applicable record or effective date hereinafter
specified, a notice stating (x) the date on which a record (if any) is to be
taken for the purpose of such dividend, distribution, rights or warrants or, if
a record is not to be taken, the date as of which the holders of Company Common
Stock of record to be entitled to such dividend, distribution, rights or
warrants are to be determined or (y) the date on which such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding up is expected to become effective, and the date as of which it is
expected that holders of Company Common Stock of record shall be entitled to
exchange their shares of Company Common Stock for securities, cash or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, share exchange, dissolution, liquidation or winding up (but no
failure to mail such notice or any defect therein or in the mailing thereof
shall affect the validity of the corporate action required to be specified in
such notice).
SECTION 13.8 Certain Additional Rights. In case the
Company shall, by dividend or otherwise, declare or make a distribution on its
Company Common Stock referred to in Section 13.4(c) or 13.4(d) (including,
without limitation, dividends or distributions referred to in the last sentence
of Section 13.4(c)), the Holders of the Debentures, upon the conversion thereof
subsequent to the close of business on the date fixed for the determination of
stockholders entitled to receive such distribution and prior to the
effectiveness of the Conversion Price adjustment (such that the Conversion
Price is not adjusted with respect to such distribution) in respect of such
distribution, shall also be entitled to receive for each share of Company
Common Stock into which the Debentures are converted, the portion of the shares
of Company Common Stock, rights, warrants, evidences of indebtedness, shares of
capital stock, cash and assets so distributed applicable to one share of
Company Common Stock; provided, however, that, at the election of the Company
(whose election shall be evidenced by a resolution of the Board of Directors)
with respect to all Holders so converting, the Company may, in lieu of
distributing to such Holder any portion of such distribution not consisting of
cash or securities of the Company, pay such Holder an amount in cash equal to
the
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fair market value thereof (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors). If any conversion of Debentures
described in the immediately preceding sentence occurs prior to the payment
date for a distribution to holders of Company Common Stock which the Holder of
Debentures so converted is entitled to receive in accordance with the
immediately preceding sentence, the Company may elect (such election to be
evidenced by a resolution of the Board of Directors) to distribute to such
Holder a due xxxx for the shares of Company Common Stock, rights, warrants,
evidences of indebtedness, shares of capital stock, cash or assets to which
such Holder is so entitled, provided, that such due xxxx (i) meets any
applicable requirements of the principal national securities exchange or other
market on which Company Common Stock is then traded and (ii) requires payment
or delivery of such shares of Company Common Stock, rights, warrants, evidences
of indebtedness, shares of capital stock, cash or assets no later than the date
of payment or delivery thereof to holders of shares of Company Common Stock
receiving such distribution.
SECTION 13.9 Restrictions on Company Common Stock Issuable
Upon Conversion.
(a) Shares of Company Common Stock to be issued upon
conversion of a Debenture in respect of Preferred Securities shall
bear such restrictive legends as the Company may provide in accordance
with applicable law.
(b) If shares of Company Common Stock to be issued upon
conversion of a Debenture in respect of Preferred Securities are to be
registered in a name other than that of the Holder of such Preferred
Security, then the Person in whose name such shares of Company Common
Stock are to be registered must deliver to the Conversion Agent a
certificate satisfactory to the Company and signed by such Person, as
to compliance with the restrictions on transfer applicable to such
Preferred Security. Neither the Trustee nor any Conversion Agent or
Registrar shall be required to register in a name other than that of
the Holder of such Preferred Securities shares of Company Common Stock
issued upon conversion of any such Debenture in respect thereof not so
accompanied by a properly completed certificate.
SECTION 13.10 Trustee Not Responsible for Determining
Conversion Price or Adjustments.
Neither the Trustee nor any Conversion Agent shall at any time
be under any duty or responsibility to any Holder of any Debenture or to any
holder of a Preferred Security to determine whether any facts exist which may
require any adjustment of the Conversion Price, or with respect to the nature
or extent of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed,
in making the same. Neither the Trustee nor any Conversion Agent shall be
accountable with respect to the validity or value (or the kind of account) of
any shares of Company Common Stock or of any securities or property, which may
at any time be issued or delivered upon the conversion of any Debenture; and
neither the
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Trustee nor any Conversion Agent makes any representation with respect thereto.
Neither the Trustee nor any Conversion Agent shall be responsible for any
failure of the Company to make any cash payment or to issue, transfer or
deliver any shares of Company Common Stock or stock certificates or other
securities or property upon the surrender of any Debenture for the purpose of
conversion, or, except as expressly herein provided, to comply with any of the
covenants of the Company contained in Article 10 or this Article 13.
* * * *
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This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
NEWFIELD EXPLORATION COMPANY
By:
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Xxxxx X. Xxxxxxx
Vice President -- Planning and
Administration
FIRST UNION NATIONAL BANK,
as Trustee
By:
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Name:
Title:
