MAGNUM HUNTER RESOURCES, INC.
and
SUBSIDIARY GUARANTORS
to
BANK OF OKLAHOMA, N.A.,
as Trustee
INDENTURE
Dated as of ________, 2000
TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.........................................1
SECTION 1.01. DEFINITIONS............................................................................1
SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS...................................................5
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.................................................6
SECTION 1.04. ACTS OF HOLDERS; RECORD DATES..........................................................6
SECTION 1.05. NOTICES, ETC., TO TRUSTEE AND COMPANY..................................................7
SECTION 1.06. NOTICE TO HOLDERS; WAIVER..............................................................7
SECTION 1.07. CONFLICT WITH TRUST INDENTURE ACT......................................................8
SECTION 1.08. EFFECT OF HEADINGS AND TABLE OF CONTENTS...............................................8
SECTION 1.09. SUCCESSORS AND ASSIGNS.................................................................8
SECTION 1.10. SEPARABILITY CLAUSE....................................................................8
SECTION 1.11. BENEFITS OF INDENTURE..................................................................8
SECTION 1.12. GOVERNING LAW..........................................................................8
SECTION 1.13. LEGAL HOLIDAYS.........................................................................8
SECTION 1.14. NO SECURITY INTEREST CREATED...........................................................9
SECTION 1.15. LIMITATION ON INDIVIDUAL LIABILITY.....................................................9
ARTICLE II SECURITY FORMS..................................................................................9
SECTION 2.01. FORMS GENERALLY........................................................................9
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTIFICATION......................................9
ARTICLE III THE SECURITIES.................................................................................10
SECTION 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES..................................................10
SECTION 3.02. DENOMINATIONS.........................................................................11
SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING........................................11
SECTION 3.04. TEMPORARY SECURITIES..................................................................12
SECTION 3.05. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE...................................13
SECTION 3.06. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES......................................14
SECTION 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED........................................14
SECTION 3.08. PERSONS DEEMED OWNERS......................................................15
SECTION 3.09. CANCELLATION..........................................................................15
SECTION 3.10. COMPUTATION OF INTEREST...............................................................15
ARTICLE IV SATISFACTION AND DISCHARGE.....................................................................16
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE...............................................16
SECTION 4.02. APPLICATION OF TRUST MONEY............................................................16
SECTION 4.03. REINSTATEMENT.........................................................................17
ARTICLE V REMEDIES.......................................................................................17
SECTION 5.01. EVENTS OF DEFAULT.....................................................................17
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT....................................18
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.............................................................................18
SECTION 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM......................................................19
SECTION 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES..........................................................................19
SECTION 5.06. APPLICATION OF MONEY COLLECTED........................................................20
SECTION 5.07. LIMITATION ON SUITS...................................................................20
SECTION 5.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM, INTEREST AND TO CONVERT....................................................20
SECTION 5.09. RESTORATION OF RIGHTS AND REMEDIES....................................................20
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE........................................................21
SECTION 5.11. DELAY OR OMISSION NOT WAIVER..........................................................21
SECTION 5.12. CONTROL BY HOLDERS....................................................................21
SECTION 5.13. WAIVER OF PAST DEFAULTS...............................................................21
SECTION 5.14. UNDERTAKING FOR COSTS.................................................................22
ARTICLE VI THE TRUSTEE....................................................................................22
SECTION 6.01. CERTAIN DUTIES AND RESPONSIBILITIES...................................................22
SECTION 6.02. NOTICE OF DEFAULTS....................................................................22
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE.............................................................23
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES................................23
SECTION 6.05. MAY HOLD SECURITIES...................................................................24
SECTION 6.06. MONEY HELD IN TRUST...................................................................24
SECTION 6.07. COMPENSATION AND REIMBURSEMENT........................................................24
SECTION 6.08. DISQUALIFICATION; CONFLICTING INTERESTS...............................................24
SECTION 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY...............................................25
SECTION 6.10. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.....................................25
SECTION 6.11. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR................................................26
SECTION 6.12. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS............................................................................27
SECTION 6.13. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.....................................27
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT...................................................27
ARTICLE VII HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY..............................................29
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.............................................................................29
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS.................................29
SECTION 7.03. REPORTS BY TRUSTEE....................................................................29
SECTION 7.04. REPORTS BY COMPANY....................................................................29
ARTICLE VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE...........................................30
SECTION 8.01. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS..................................30
SECTION 8.02. SUCCESSOR SUBSTITUTED.................................................................30
ARTICLE IX SUPPLEMENTAL INDENTURES........................................................................31
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS....................................31
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.......................................31
SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES..................................................32
SECTION 9.04. EFFECT OF SUPPLEMENTAL INDENTURES.....................................................33
SECTION 9.05. CONFORMITY WITH TRUST INDENTURE ACT...................................................33
SECTION 9.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES....................................33
SECTION 9.07. NOTICE OF SUPPLEMENTAL INDENTURE......................................................33
ARTICLE X COVENANTS......................................................................................33
SECTION 10.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST............................................33
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY.......................................................33
SECTION 10.03. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.......................................34
SECTION 10.04. STATEMENT BY OFFICERS AS TO DEFAULT...................................................34
SECTION 10.05. EXISTENCE.............................................................................35
SECTION 10.06. WAIVER OF CERTAIN COVENANTS...........................................................35
SECTION 10.07. ADDITIONAL AMOUNTS....................................................................35
ARTICLE XI REDEMPTION OF SECURITIES.......................................................................36
SECTION 11.01. APPLICABILITY OF ARTICLE..............................................................36
SECTION 11.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE.................................................36
SECTION 11.03. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.....................................36
SECTION 11.04. NOTICE OF REDEMPTION..................................................................36
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE...........................................................37
SECTION 11.06. SECURITIES PAYABLE ON REDEMPTION DATE.................................................37
SECTION 11.07 SECURITIES REDEEMED IN PART...........................................................37
ARTICLE XII SUBORDINATION OF SECURITIES....................................................................38
SECTION 12.01. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS........................................38
SECTION 12.02. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC........................................38
SECTION 12.03. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT........................................39
SECTION 12.04. PAYMENT PERMITTED IF NO DEFAULT.......................................................40
SECTION 12.05. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS...............................40
SECTION 12.06. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS...........................................40
SECTION 12.07. TRUSTEE TO EFFECTUATE SUBORDINATION...................................................41
SECTION 12.08. NO WAIVER OF SUBORDINATION PROVISIONS.................................................41
SECTION 12.09. NOTICE TO TRUSTEE.....................................................................41
SECTION 12.10. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT..............................................................................41
SECTION 12.11. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS..............................42
SECTION 12.12. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS;
PRESERVATION OF TRUSTEE'S RIGHTS...................................................42
SECTION 12.13. ARTICLE APPLICABLE TO PAYING AGENTS...................................................42
SECTION 12.14. NO SUSPENSION OF REMEDIES.............................................................42
SECTION 12.15 SUBORDINATION OF SUBSIDIARY GUARANTEES....................................42
ARTICLE XIII MEETINGS OF HOLDERS OF SECURITIES..............................................................43
SECTION 13.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.............................................43
SECTION 13.02. CALL, NOTICE AND PLACE OF MEETINGS....................................................43
SECTION 13.03. PERSONS ENTITLED TO VOTE AT MEETINGS..................................................43
SECTION 13.04. QUORUM; ACTION........................................................................43
SECTION 13.05. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS........................................................................44
SECTION 13.06. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.......................................44
Certain Sections of this Indenture relating to Sections 310 through 318 of
the Trust Indenture Act of 1939:
SECTION OF TRUST SECTION OF
INDENTURE ACT THIS INDENTURE
Section 310 (a) (1) 6.09
(a) (2) 6.09
(a) (3) Not Applicable
(a) (4) Not Applicable
(a) (5) 6.09
(b) 6.08
Section 311(a) 6.13
(b) 6.13
Section 312(a) 7.01
7.02(a)
(b) 7.02(b)
(c) 7.02(c)
Section 313(a) 7.03(a)
(b) 7.03(a)
(c) 7.03(a)
(d) 7.03(b)
Section 314(a) 7.04
(a)(4) 10.04
(b) Not Applicable
(c)(1) 1.02
(c)(2) 1.02
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.02
Section 315(a) 6.01
(b) 6.02
(c) 6.01
(d) 6.01
(e) 5.14
Section 316(a)(1)(A) 5.02
5.12
(a)(1)(B) 5.13
(a)(2) Not Applicable
(b) 5.08
(c) 1.04(c)
Section 317(a)(1) 5.03
(a)(2) 5.04
(b) 10.03
Section 318(a) 1.07
------------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
INDENTURE, dated as of _____, 2000, between MAGNUM HUNTER RESOURCES, INC.,
a corporation duly organized and existing under the laws of the State of Nevada
(herein called the "Company"), the Subsidiary Guarantors (as defined herein) and
BANK OF OKLAHOMA, N.A., a national banking association, as Trustee (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
convertible subordinated debentures, notes or other evidences of indebtedness
(herein called the "Securities"), either with or without the benefit of
Subsidiary Guarantees (as defined herein) to be issued in one or more series as
in this Indenture provided.
This Indenture is subject to the provisions of the Trust Indenture Act and
the rules and regulations of the Commission promulgated thereunder which are
required to be part of this Indenture and, to the extent applicable, shall be
governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company in accordance with its terms have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the
premises and the purchase of the Securities by the Holders thereof, it is
mutually agreed, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to them in
this Article I 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, except as otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required and permitted
hereunder shall mean such accounting principles as are generally accepted and
adopted by the Company at the date of this Indenture; 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; and references herein to "Articles" and "Sections"
are to Articles and Sections of this Indenture unless otherwise specified.
Certain terms used in Articles V and XII are defined in those Articles.
"Act" when used with respect to any Holder, has the meaning specified in
Section 1.04.
"Additional Amounts" means any additional amounts that are required by the
express terms of a Security or by, or pursuant to, a Board Resolution, under
circumstances specified therein or pursuant thereto, to be paid by the
Company with respect to certain taxes, assessments or other governmental
charges imposed on certain Holders and that are owing to those Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the specified Person. For purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of the specified 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.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in Oklahoma City, Oklahoma,
Dallas, Texas or New York, New York are authorized or obligated to close by law
or executive order.
"Commission" means the Securities and Exchange Commission as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this Instrument that Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing those duties at such time.
"Common Stock" includes any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding-up of the Company
and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
that successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President or a Vice President, and by its Chief Financial
Officer, Controller, its Treasurer or an Assistant Treasurer, or its Secretary
or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Subsidiary" means a Subsidiary whose financial statements are
included in the most recent annual consolidated financial statements of the
Company and its Subsidiaries.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall principally be
administered which is, as of the date of this Indenture, located at _________.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Dollar" or "$" means at any time a dollar or other equivalent unit in such
coin or currency of the United States as at that time shall be legal tender for
the payment of public and private debts.
"Event of Default" has the meaning specified in Section 5.01.
2
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including the
terms of one or more series of Securities established as contemplated by Section
3.01 and, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and to govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date" when used with respect to any Security, means the
dates specified in that Security as the fixed dates on which an installment of
interest on that Security is due and payable.
"Maturity" when used with respect to any Security, means the date or dates
on which the principal of such Security becomes due and payable as therein or
herein provided, whether at the final Principal Payment Date thereof or by
declaration of acceleration, redemption or otherwise.
"Obligations" in respect of Senior Indebtedness means any principal,
interest, premiums, fees, indemnifications, reimbursements, damages and other
liabilities payable under the documents governing any such indebtedness.
"Officers' Certificate" means a certificate, in form satisfactory to the
Trustee, signed by the Chairman of the Board, the Chief Executive Officer, the
President or a Vice President, and by the Chief Financial Officer, Controller,
the Treasurer or an Assistant Treasurer, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion, in form and substance
satisfactory to the Trustee, of counsel, who may be counsel for or an employee
of the Company, and who shall be acceptable to the Trustee.
"Original Issue Discount Security" means any Security that provides for an
amount less than the principal amount thereof to be due and payable on a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
"Outstanding" when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(a) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities, or portions thereof, for the payment or redemption of which
moneys in the necessary amount have been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of those Securities; provided, that if those Securities,
or portions thereof, are to be redeemed, notice of that redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(c) Securities that have been paid pursuant to Section 3.06 or in exchange
for or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such Securities
are valid obligations of the Company; provided, however, that in determining
whether the Holders of the requisite principal amount of the Outstanding
Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Securities owned by the Company or any other
obligor on the Securities or any Affiliate of the Company shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying on any such request, demand,
authorization, direction, notice, consent or waiver, only Securities that the
Trustee knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor on the Securities or any Affiliate of the Company.
3
"Paying Agent" means any Person, which may include the Company, authorized
by the Company to pay the principal of and premium, if any, or interest on any
one or more series of Securities on behalf of the Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, trust, unincorporated organization or government or
any agency or political subdivision thereof.
"Place of Payment" when used with respect to the Securities of any series,
means ______________ and is the place where the principal of (and premium, if
any) and interest on the Securities of that series are payable as specified in
accordance with Section 3.01, subject to the provisions of Section 10.02.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by that
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Payment Date" when used with respect to any Security, means the
dates specified in that Security as the fixed dates on which the principal of
such Security or a portion of principal is due and payable.
"Record Date" means either a Regular Record Date or a Special Record Date,
as applicable.
"Redemption Date" when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture on the
applicable Redemption Date.
"Regular Record Date" for the interest payable on any Interest Payment Date
means the date specified for that purpose as contemplated by Section 3.01, or,
if not so specified, the last day of the calendar month preceding that Interest
Payment Date if that Interest Payment Date is the 15th day of the calendar month
or the 15th day of the calendar month preceding that Interest Payment Date if
that Interest Payment Date is the last day of a calendar month, whether or not
that day is a Business Day.
"Representative" means the indenture trustee or other trustee, agent or
representative for any Senior Indebtedness.
"Responsible Officer" means, when used with respect to the Trustee, the
chairman of the Board of Directors, any vice chairman of the Board of Directors,
the chairman of the trust committee, the chairman of the executive committee,
any vice chairman of the executive committee, the president, any vice president
(whether or not designated by numbers or words added before or after the title
"vice president"), the cashier, the secretary, the treasurer, any trust officer,
any assistant trust officer, any assistant cashier, any assistant secretary, any
assistant treasurer, or any other officer or assistant officer of the Trustee
customarily performing functions similar to those performed by the Persons who
at the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of his or her knowledge of and familiarity with the
particular subject.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.05.
"Senior Indebtedness" means the principal of and premium, if any, and
interest on (a) all secured indebtedness of the Company, or any subsidiary of
the Company, for money borrowed under any Credit Facility, whether outstanding
on the date of execution of the Indenture or thereafter created, incurred or
assumed, and (b) all secured indebtedness of the Company, or any subsidiary of
the Company, for money borrowed, whether outstanding on the date of execution of
the Indenture or thereafter created, incurred or assumed, and any amendments,
renewals, extensions, modifications, refinancings, replacements, and refundings
of any or all thereof. For the purposes of this definition, "indebtedness for
money borrowed" when used with respect to the Company means (a) any obligation
of, or any obligation guaranteed by, the Company, or any subsidiary of the
Company, for the repayment of borrowed money (including without limitation fees,
penalties or other obligations in respect thereof), whether or not evidenced by
bonds, debentures, notes or other
4
written instruments, (b) any deferred payment obligation of, or any such
obligation guaranteed by, the Company, or any subsidiary of the Company, for the
payment of the purchase price of property or assets evidenced by a note or
similar instrument, and (c) any obligation of, or any such obligation guaranteed
by, the Company, or any subsidiary of the Company, for the payment of rent or
other amounts under a lease of property or assets which obligation is required
to be classified and accounted for as a capitalized lease on the balance sheet
of the Company, or any subsidiary of the Company, under generally accepted
accounting principles.
"Significant Subsidiary" means at any time a Subsidiary that is at that
time a "significant subsidiary" of the Company within the meaning of Rule
1.02(w) of Regulation S-X under the Securities Act of 1933, as amended and in
effect on the date of this Indenture.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
3.07.
"Subsidiary" means a corporation more than 50% of the outstanding voting
stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries or by the Company and one or more other Subsidiaries.
For the purposes of this definition, "voting stock" means stock that ordinarily
has voting power in 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.
"Subsidiary Guarantee" means a full and unconditional guarantee by a
Subsidiary Guarantor of the obligations of the Company with respect to the
Securities of a series, which guarantee shall be on the basis, and subject to
the terms and conditions, as may be specified and contemplated by this Indenture
in connection with the issuance of the Securities of such series.
"Subsidiary Guarantor" means each of (i) the Persons so identified on the
signature page of this Indenture or any indenture supplemental hereto who,
pursuant to the terms of any series of Securities, are to provide a Subsidiary
Guarantee with respect to that series of Securities, (ii) any other Person that
executes a Subsidiary Guarantee with respect to a series of Securities in
accordance with the provisions thereof and (iii) their respective successors and
assigns, to the extent specified in the Subsidiary Guarantees.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this Indenture was executed; provided, however, that in the
event the Trust Indenture Act of 1939 is amended after that date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"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."
"Yield to Maturity" when used with respect to any Original Issue Discount
Security, means the yield to maturity, if any, set forth on the face thereof.
SECTION 1.02. COMPLIANCE CERTIFICATES AND OPINIONS.
On any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company shall furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by officers of the Company, or an Opinion
of Counsel, if to be given by counsel, and shall comply with the requirements of
the Trust Indenture Act and any other requirement set forth in this Indenture.
5
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(a) a statement that each individual or firm signing such certificate or
opinion has read such covenant or condition and the definitions herein relating
thereto;
(b) a statement that, in the opinion of each such individual or such firm,
he has or they have made such examination or investigation as is necessary to
enable him or them to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(c) a statement as to whether, in the opinion of each such individual or
such firm, such condition or covenant has been complied with.
SECTION 1.03. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any 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, on a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters on 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, on a certificate of public officials or on 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 1.04. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by agents duly appointed in writing;
and, except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments are delivered to the Trustee and,
where it is hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are herein
sometimes referred to as the "Act" of the Holders signing such instrument or
instruments. Proof of execution of any such instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.01) conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section. The record of any
meeting of Holders shall be proved in the manner provided in Section 13.06.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
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(c) The Company may, in the circumstances permitted by the Trust Indenture
Act, fix any day as the record date for the purpose of determining the Holders
entitled to give or take any request, demand, authorization, direction, notice,
consent, waiver or other action, or to vote on any action, authorized or
permitted to be given or taken by Holders. If not set by the Company prior to
the first solicitation of a Holder made by any Person in respect of any such
action, or, in the case of any such vote, prior to such vote, the record date
for any such action or vote shall be the 30th day (or, if later, the date of the
most recent list of Holders required to be provided pursuant to Section 7.01)
prior to such first solicitation or vote, as the case may be. With regard to any
record date, only the Holders on such date (or their duly designated proxies)
shall be entitled to give or take, or vote on, the relevant action.
Notwithstanding the foregoing, the Company shall not set a record date for, and
the provisions of this paragraph shall not apply with respect to, any Act by the
Holders pursuant to Section 5.01, 5.02 or 5.12.
(d) The ownership of Securities shall be proved by the Security Register.
(e) Any Act of the Holder of any Security shall bind every future Holder of
the same Security and the Holder of every Security issued on the registration of
transfer therefor or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(f) Without limiting the foregoing, a Holder entitled hereunder to give or
take any action hereunder with regard to any particular Security may do so with
regard to all or any part of the principal amount of such Security 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 1.05. NOTICES, ETC., TO TRUSTEE AND COMPANY.
Any Act of Holders or other documents 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 or any Subsidiary Guarantor
shall be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
______________, Attention: Corporate Trust Administration, or at such
superseding other addresses previously furnished in writing to the Holders and
the Company by the Trustee; or
(b) the Company or any Subsidiary Guarantor by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
the Company, addressed to it at 000 X. Xxx Xxxxxxx Xxxx., Xxxxx 0000, Xxxxxx,
Xxxxx, 00000, Attention: General Counsel, or at such superseding address as has
been previously furnished in writing to the Trustee by the Company.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, registered or certified with postage
prepaid, if mailed; when answered back if telexed; when receipt acknowledged, if
telecopied; and the next Business Day after timely delivery to the courier, if
sent by nationally recognized overnight air courier guaranteeing next day
delivery.
SECTION 1.06. 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 made, given, furnished or filed in writing to each Holder affected by such
event, at his address as it appears in the Security Register, not later than the
latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice.
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. All such notices and communications shall be deemed
to have been duly given: at the time delivered by hand, if personally delivered;
five Business Days after being deposited in the
7
mail, registered or certified with postage prepaid, if mailed; when
answered back if telexed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by nationally
recognized overnight air courier guaranteeing next day delivery.
In the case of any notice this Indenture provides shall be given by mail,
if, 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 1.07. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act or another provision that would be required or deemed
under such Act to be a part of and govern this Indenture if this Indenture were
subject thereto, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
SECTION 1.08. 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 1.09. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company or any
Subsidiary Guarantor and the Trustee shall bind each of their respective
successors and assigns, whether so expressed or not.
SECTION 1.10. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder, the Holders of Securities and, with respect to Article XII, the
Holders of Senior Indebtedness, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 1.12. GOVERNING LAW.
THIS INDENTURE, ANY SUBSIDIARY GUARANTEES AND THE SECURITIES SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF TEXAS, BUT WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS
THEREOF.
SECTION 1.13. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Principal
Payment Date of any Security or the last date on which a Holder has the right to
convert his Securities shall not be a Business Day, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of interest or
principal and premium, if any, or conversion of the Securities need not be made
on such date, but may be made on the next succeeding Business Day with the same
force and effect as if made on the Interest Payment Date or Redemption Date, or
on a Principal Payment Date, or on such last day for conversion; provided, that
no interest shall accrue for the period from and after such Interest Payment
Date, Redemption Date or Principal Payment Date, as the case may be, to the next
succeeding Business Day.
8
SECTION 1.14. NO SECURITY INTEREST CREATED.
Nothing in this Indenture or in the Securities, express or implied, shall
be construed to constitute a security interest under the Uniform Commercial Code
or similar legislation, as now or hereafter enacted and in effect in any
jurisdiction where property of the Company or its Subsidiaries is or may be
located.
SECTION 1.15. LIMITATION ON INDIVIDUAL LIABILITY.
No recourse under or on any obligation, covenant or agreement contained in
this Indenture or in any Security, or for any claim based thereon or otherwise
in respect thereof, shall be had against any incorporator, shareholder, officer,
attorney, employee, representative or director, as such, past, present or
future, of the Company or any successor corporation, either directly or through
the Company, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that this Indenture and the obligations issued hereunder are solely
corporate obligations, and that no such personal liability whatever shall attach
to, or is or shall be incurred by, the incorporators, shareholders, officers,
attorneys, employees, representatives or directors, as such, of the Company or
any successor Person, or any of them, because of the creation of the
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any Security or
implied therefrom; and that any and all such personal liability of every name
and nature, either at common law or in equity or by constitution or statute, of,
and any and all such rights and claims against, every such incorporator,
shareholder, officer, attorney, employee, representative or director, as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any Security or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Indenture and the issuance of such Security.
ARTICLE II
SECURITY FORMS
SECTION 2.01. FORMS GENERALLY.
The Securities of each series shall be in substantially such form or forms
as shall be established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. A copy of the Board
Resolution establishing the form or forms of Securities or of any series of
Securities shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.03 for the authentication and delivery of those
Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing those Securities, as evidenced by their execution
thereof.
SECTION 2.02. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially the
following form:
"This is one of the Securities of the series designated, described or
provided for in the within-mentioned Indenture.
-----------------------------------,
BANK OF OKLAHOMA, N.A.
By: ___________________________
9
AUTHORIZED SIGNATORY".
ARTICLE III
THE SECURITIES
SECTION 3.01. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(a) the title of the Securities of the series (which shall distinguish the
Securities of the series from all other Securities);
(b) any limit on the aggregate principal amount of the Securities of the
series which may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered on registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to Section
3.04, 3.05, 3.06, 9.06 or 11.07);
(c) the date or dates on which the principal of and any premium on the
Securities of the series is payable or the method of determination thereof;
(d) the rate or rates, or the method of determination thereof, at which the
Securities of the series shall bear interest, if any, whether and under what
circumstances Additional Amounts with respect to such Securities shall be
payable, the date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest shall be payable and, if other than as set
forth in Section 1.01, the Regular Record Date for the interest payable on any
Securities on any Interest Payment Date;
(e) the place where, subject to the provisions of Section 10.02, the
principal of, any premium or interest on and any Additional Amounts with respect
to the Securities of the series shall be payable;
(f) the period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms and
conditions on which Securities of the series may be redeemed, in whole or in
part, at the option of the Company, if the Company is to have that option, and
the manner in which the Company must exercise any such option;
(g) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous provisions or
at the option of a Holder thereof and the period or periods within which, the
price or prices (whether denominated in cash, securities or otherwise) at which
and the terms and conditions on which, Securities of the series shall be
redeemed or purchased in whole or in part pursuant to such obligation;
(h) the denomination in which any Securities of that series shall be
issuable, if other than denominations of $1,000 and any integral multiple
thereof;
(i) if the principal of, any premium or interest on or any Additional
Amounts with respect to the Securities of the series are to be payable, at the
election of the Company or a Holder thereof, in a currency or currencies
(including composite currencies) other than that in which the Securities are
stated to be payable, the currency or currencies (including composite
currencies) in which payment of the principal of or any premium or interest on
or any Additional Amounts with respect to Securities of the series as to which
such election is made shall be payable, and the periods within which and the
terms and conditions on which such election is to be made;
10
(j) if the amount of payments of principal of, any premium or interest on
or any Additional Amounts with respect to the Securities of the series may be
determined with reference to any commodities, currencies or indices, or values,
rates or prices, the manner in which those amounts shall be determined;
(k) if other than the entire principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable on
declaration of acceleration of the Maturity thereof pursuant to Section 5.02;
(l) any additional means of satisfaction and discharge of this Indenture
with respect to Securities of the series pursuant to Section 4.01 and any
additional conditions to discharge pursuant to Section 4.01;
(m) any deletions or modifications of or additions to the Events of Default
set forth in Section 5.01 or covenants of the Company set forth in Article X
pertaining to the Securities of the series;
(n) if the Securities are to be subordinated pursuant to Article XII to
unsecured indebtedness or other liabilities, the modification for purposes only
of the series of the definition of "Senior Indebtedness" herein;
(o) whether the Securities of the series shall be guaranteed by one or more
Subsidiary Guarantors and, if so, the terms of the Subsidiary Guarantees,
including the circumstances in which such Subsidiary Guarantees may be released;
and
(p) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Securities of any one series shall be substantially identical, except
as to denomination and except as may otherwise be provided in or pursuant to the
Board Resolution referred to above and (subject to Section 3.03) set forth, or
determined in the manner provided, in the Officers' Certificate referred to
above or in any such indenture supplemental hereto.
At the option of the Company, interest on the Securities of any series that
bears interest may be paid by mailing a check to the address of any Holder as
such address shall appear in the Security Register or by wire transfer at the
Holder's expense.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of that action together
with that Board Resolution shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
delivery of the Officers' Certificate setting forth the terms of the series.
SECTION 3.02. DENOMINATIONS.
The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by Section 3.01. In the absence of any such
provisions with respect to the Securities of any series, the Securities of that
series denominated in Dollars shall be issuable in denominations of $1,000 and
any integral multiple thereof.
SECTION 3.03. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Chief Executive Officer, its President, its Chief Financial
Officer or one of its Vice Presidents, under its corporate seal or a facsimile
thereof reproduced thereon attested by its Secretary or one of its Assistant
Secretaries. The signature of any of these officers on the Securities may be
manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
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At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of those Securities; and the Trustee in accordance
with such Company Order shall either at one time or from time to time pursuant
to such instructions as may be described therein authenticate and deliver such
Securities as in this Indenture provided and not otherwise. Such Company Order
shall specify the amount of Securities to be authenticated and the date on which
the original issue of Securities is to be authenticated, and shall certify that
all conditions precedent to the issuance of such Securities contained in this
Indenture have been complied with.
If the form or terms of the Securities of any series have been established
in or pursuant to one or more Board Resolutions as permitted by Sections 2.01
and 3.01, in authenticating those Securities, and accepting the additional
responsibilities under this Indenture in relation to those Securities, the
Trustee shall be entitled to receive, and (subject to Section 6.01) shall be
fully protected in relying on, an Opinion of Counsel stating:
(a) if the form of those Securities has been established by or pursuant to
Board Resolution as permitted by Section 2.01, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of those Securities have been established by or pursuant
to Board Resolution as permitted by Section 3.01, that such terms have been
established in conformity with the provisions of this Indenture; and
(c) that those Securities, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute legal, valid and binding obligations
of the Company, enforceable in accordance with their terms, except as such
enforcement is subject to the effect of (i) bankruptcy, insolvency, fraudulent
conveyance, reorganization or other laws relating to or affecting creditors'
rights generally, (ii) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law) and (iii) any
implied covenants of good faith or fair dealing.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature, and such certificate on any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of the Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 3.09 together with a written statement
(which need not comply with Section 1.03 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold by
the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture.
The Trustee may appoint an Authenticating Agent pursuant to the terms of
Section 6.14.
SECTION 3.04. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the Company
may execute, and on Company Order the Trustee shall authenticate and deliver,
temporary Securities of that series which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing those Securities may determine, as
evidenced by their execution of those Securities. Every such temporary Security
shall be executed by the Company and shall be authenticated and delivered by the
Trustee on the same conditions and in substantially the same manner, and with
the same effect, as the definitive Security or Securities in lieu of which it is
issued.
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If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of any series, the temporary
Securities of that series shall be exchangeable for those definitive Securities
on surrender of the temporary Securities at any office or agency of the Company
designated pursuant to Section 10.02, without charge to the Holder. On surrender
for cancellation of any one or more temporary Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor one or more definitive Securities of the same series and of like tenor,
of any authorized denominations and of a like aggregate principal amount. Until
so exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
that series in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
SECTION 3.05. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
(a) The Security Registrar shall cause to be kept for each series of
Securities at one of the offices or agencies maintained pursuant to Section
10.02 a register (the register maintained in such office and in any other office
or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities of that series. The
Company is hereby initially appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
(b) On surrender for registration of transfer of any Security of any series
at the office or agency in a Place of Payment for that series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of the same
series and of like tenor, of any authorized denominations and of a like
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series and of like tenor, of any authorized
denominations and of a like aggregate principal amount, on surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities that the Holder making the exchange is
entitled to receive.
(c) All Securities issued on any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered on such registration of transfer or exchange.
(d) Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Trustee and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
(e) No service charge shall be made for any registration of transfer or
exchange of Securities, except as provided in Section 3.06 or if the Holder has
requested such registration of transfer or exchange. The Security Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge (including the fees and expenses of the Trustee) that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any
transfer.
(f) The Security Registrar shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of that series selected for redemption and ending at
the close of business on the day of the mailing of the relevant notice of
redemption or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
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SECTION 3.06. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security of any series is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence to
their satisfaction of the destruction, loss or theft of any Security and (b)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding. The Trustee may charge the Company for the
Trustee's expenses in replacing such Security.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
On the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section 3.06 in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest. Unless otherwise
provided with respect to the Securities of any series, payment of interest may
be made at the option of the Company by check mailed or delivered to the address
of any Person entitled thereto as such address shall appear in the Securities
Register.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities (or their respective Predecessor
Securities) of that series are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the date
of the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of
14
Securities of that series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities (or their respective Predecessor Securities) of that
series are registered at the close of business 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 on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which those Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this clause
(b), such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 3.07, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security of any series which is converted after any
Regular Record Date and on or prior to the next succeeding Interest Payment Date
(other than any Security whose Maturity is prior to such Interest Payment Date),
interest on that Security which has a Principal Payment Date on such Interest
Payment Date shall be payable on such Interest Payment Date notwithstanding such
conversion, and such interest (whether or not punctually paid or duly provided
for) shall be paid to the Person in whose name that Security (or one or more of
its Predecessor Securities) is registered at the close of business on such
Regular Record Date, provided, however, that Securities of any series so
surrendered for conversion shall (except in the case of those Securities called
for redemption) be accompanied by payment in New York Clearing House funds or
other funds acceptable to the Company of an amount equal to the interest payable
on such Interest Payment Date on the principal amount being surrendered for
conversion. Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any Security of any series which is converted, interest
which has a Principal Payment Date after the date of conversion of that Security
shall not be payable.
SECTION 3.08. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name that Security is registered as the owner of that Security
for the purpose of receiving payment of principal of and premium, if any, and
(subject to Section 3.07) interest on that Security and for all other purposes
whatsoever, whether or not that Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 3.09. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer, exchange or conversion shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee and shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly canceled by the Trustee. No Securities shall be authenticated
in lieu of or in exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 3.10. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.01. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall on Company Request cease to be of further effect
(except as expressly provided for in this Article IV), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered (other than (A)
Securities that have been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 3.06 and (B) Securities for whose payment money
has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 10.03) have been delivered to the Trustee for cancellation;
or
(ii) all those Securities not theretofore delivered to the Trustee for
cancellation
(A) have become due and payable, or
(B) will become due and payable at their Principal Payment Date within one
year, or
(C) are to be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company, and the Company, in the
case of (A), (B) or (C) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of paying an
amount in cash sufficient (without consideration of any investment of such cash)
to pay and discharge the entire indebtedness on those Securities not theretofore
delivered to the Trustee for cancellation for principal and premium, if any, and
interest and Additional Amounts, if any, to the date of such deposit (in the
case of Securities that have become due and payable) or to the Principal Payment
Date or Redemption Date, as the case may be; provided that the Trustee is
irrevocably instructed to apply such amount to said payments with respect to
those Securities;
(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
following rights or obligations under the Securities and this Indenture shall
survive until otherwise terminated or discharged hereunder: (a) the Company's
obligations under Sections 3.04, 3.05, 3.06, 10.02 and 10.03, in each case with
respect to any Securities described in subclause (ii) of clause (a) of this
Section 4.01, (b) this Article IV, (c) the rights, powers, trusts, duties and
immunities of the Trustee hereunder, including the obligations of the Company to
the Trustee under Section 6.07, and the obligations of the Trustee or the
Company to any Authenticating Agent under Section 6.14 and (d) if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of
this Section 4.01, the rights of Holders of any Securities described in that
subclause (ii) to receive, solely from the trust fund described in that
subclause (ii), payments in respect of the principal of, and premium (if any)
and interest on and Additional Amounts (if any) with respect to, those
Securities when such payments are due.
SECTION 4.02. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 10.03, all money
deposited with the Trustee pursuant to Section 4.01 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying
16
Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal, premium, if any, interest and Additional Amounts, if any, for
whose payment such money has been deposited with the Trustee. All moneys
deposited with the Trustee pursuant to Section 4.01 (and held by it or any
Paying Agent) for the payment of Securities subsequently converted shall be
returned to the Company on Company Request.
SECTION 4.03. REINSTATEMENT.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article IV by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article IV until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust with respect to the Securities;
provided, however, that if the Company makes any payment of principal of, any
premium or interest on or any Additional Amounts with respect to any Security
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of the Securities to receive such payment from the
money so held in trust.
ARTICLE V
REMEDIES
SECTION 5.01. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Securities of any
series, means any one of the following events (whatever the reason for that
Event of Default and whether it shall be occasioned by the provisions of Article
XII or be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), unless it either is
inapplicable to a particular series of Securities or is specifically deleted or
modified in or pursuant to the supplemental indenture or Board Resolution
establishing that series or in the form of the Security for that series:
(a) default in the payment of the principal of or premium, if any, on any
Security of that series at its Maturity, whether or not such payment is
prohibited by the provisions of Article XII; or
(b) default in the payment of any interest on or any Additional Amounts
with respect to any Security of that series when it becomes due and payable,
whether or not such payment is prohibited by the provisions of Article XII, and
continuance of such default for a period of 30 days; or
(c) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture (other than a covenant or warranty a default in
whose performance or whose breach is elsewhere in this Section 5.01 specifically
dealt with or which has been expressly included in this Indenture solely for the
benefit of one or more series of Securities other than that series), and
continuance of such default or breach for a period of 60 days after there has
been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by any Holder a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
(d) the filing or commencement of an involuntary case or other proceeding
against the Company or any Significant Subsidiary of the Company seeking
liquidation, reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or thereafter in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and unstayed
for a period of 90 days; or an order for relief shall be entered against the
Company or any Significant Subsidiary of the Company under the federal
bankruptcy laws as now or hereafter in effect; or
(e) the filing or commencement by the Company or any Significant Subsidiary
of the Company of a voluntary case or other proceeding seeking liquidation,
reorganization or other similar relief with respect to itself or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in effect, or
seeking the appointment of a trustee,
17
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or the Company or any Significant Subsidiary
of the Company shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it or shall make a general assignment for the
benefit of creditors; or
(f) any other Event of Default provided with respect to Securities of that
series as contemplated by Section 3.01.
SECTION 5.02. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to any Outstanding Securities of any
series occurs and is continuing, then in every such case the Trustee or any
Holder may declare the outstanding principal amount and any accrued interest of
all the Securities of the series affected by such default or all series, as the
case may be, to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by any Holder), and on any such declaration
such outstanding principal amount and any accrued interest (or specified amount)
shall become immediately due and payable. If an Event of Default described in
clause (d) or (e) of Section 5.01 shall occur, the outstanding principal amount
and any accrued interest of the Outstanding Securities of all series ipso facto
shall become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article V provided, any Holder of that
series (or of all series, as the case may be), by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences if
(a) the Company has paid or deposited with the Trustee or a Holder or
Holders a sum sufficient to pay:
(i) all overdue interest on, and any Additional Amounts with respect to,
all Securities of that series (or of all series, as the case may be),
(ii) the principal of (and premium, if any, on) any Securities of that
series (or of all series, as the case may be) which have become due otherwise
than by such declaration of acceleration and interest thereon at the rate or
rates prescribed therefore in such Securities (in the case of Original Issue
Discount Securities, the Securities' Yield to Maturity),
(iii) to the extent that payment of such interest is lawful, interest on
overdue interest and any Additional Amounts at the rate or rates prescribed
therefor in such Securities (in the case of Original Issue Discount Securities,
the Securities' Yield to Maturity) and
(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 with respect to such Security of that series (or
of all series), other than the non- payment of the principal of Securities of
that Security (or of all series) which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.03. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(a) default is made in the payment of any interest on or any Additional
Amounts with respect to any Security of any series when such interest or
Additional Amounts shall have become due and payable and such default continues
for a period of 30 days, or
18
(b) default is made in the payment of the principal of or premium, if any,
on any Security of any series at the Maturity thereof, the Company will, on
demand of the Trustee, pay to it, for the benefit of the Holders of the
Securities of that series, the whole amount then due and payable on those
Securities for principal and premium, if any, and interest and any Additional
Amounts, and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and premium, if any, and on any
overdue interest and Additional Amounts, at the rate borne by those Securities
(or in the case of Original Issue Discount Securities, the Yield to Maturity of
those Securities), and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee and
each predecessor Trustee, their respective agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 6.07.
If the Company fails to pay such amounts forthwith on 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 any such proceeding to judgment or final decree, and may enforce the
same against the Company (or any other obligor on those Securities) and collect
the moneys adjudged or decreed to be payable in the manner provided by law out
of the property of the Company (or any other obligor on those Securities),
wherever situated.
If an Event of Default with respect to Securities of any series occurs and
is continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of those Securities by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
SECTION 5.04. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of any judicial proceeding relative to the Company (or any other
obligor on the Securities of any series), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have the claims of the applicable Holders and the Trustee allowed in
any such proceeding. 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; and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each applicable Holder to make such payments
to the Trustee and, in the event that the Trustee shall consent to the making of
such payments directly to the applicable Holders, to pay to the Trustee any
amount due it and each predecessor Trustee for the reasonable compensation,
expenses, disbursements and advances of the Trustee and each predecessor Trustee
and their respective agents and counsel, and any other amounts due the Trustee
under Section 6.07.
No provision of this Indenture shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of Securities
of any series any plan of reorganization, arrangement, adjustment or composition
affecting those Securities or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of that Holder in any such
proceeding; provided, however, that the Trustee may, on behalf of the Holders of
those Securities, vote for the election of a trustee in bankruptcy or similar
official and may be a member of the Creditors' Committee.
SECTION 5.05. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities of
any series may be prosecuted and enforced by the Trustee without the possession
of any of those Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee and each predecessor Trustee and their
respective agents and counsel, be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
19
SECTION 5.06. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article V shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal of, premium,
if any, or interest on or any Additional Amounts with respect to the Securities
of any series, on presentation of those Securities and the notation thereon of
the payment if only partially paid and on surrender thereof if fully paid:
FIRST: To payment of all amounts due the Trustee under Section 6.07;
SECOND: To the payment of the amounts then due and unpaid for principal of,
premium, if any, and interest on and any Additional Amounts with respect to the
Securities in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on those Securities for principal, premium, if any,
interest and Additional Amounts, respectively; and
THIRD: The balance, if any, to the Company or any other Person or Persons
determined to be entitled thereto.
SECTION 5.07. LIMITATION ON SUITS.
No Holder of any Security of any series will have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(a) an Event of Default with respect to Securities of that series has
occurred and is continuing and that Holder has previously given written notice
to the Trustee of that continuing Event of Default;
(b) any Holder of a particular series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable indemnity
satisfactory to it 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 any Holder of a particular series; it
being understood and intended that no one or more of those Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
those Holders, or to obtain or to seek to obtain priority or preference over any
other of those Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all those
Holders.
SECTION 5.08. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and premium, if any, and (subject to Section 3.07)
interest on and any Additional Amounts with respect to such Security on the
respective Principal Payment Dates expressed in that Security (or, in the case
of redemption, on the Redemption Date) and to institute suit for the enforcement
of any such payment and right to convert, and such rights shall not be impaired
without the consent of that Holder.
SECTION 5.09. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of Securities of any series has instituted any
proceeding to enforce any right or remedy under this Indenture and that
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to that Holder, then and in every such
case, subject to any determination in that
20
proceeding, the Company, the Trustee and the Holders of Securities of that
series shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and those
Holders shall continue as though no such proceeding had been instituted.
SECTION 5.10. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in Section 3.06, no right or
remedy herein conferred on 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 any Security to
exercise any right or remedy accruing on any Event of Default with respect to
that Security 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 V or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
SECTION 5.12. CONTROL BY HOLDERS.
With respect to Securities of any series, any Holder of that series shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee relating to or arising under an Event of Default
described in clause (a), (b) or (f) of Section 5.01, and with respect to all
Securities any Holder shall have the right to direct the time, method and place
of conducting any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, not relating to or arising under such an Event
of Default; provided, that:
(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 6.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee in good faith shall
determine that the action so directed would involve the Trustee in personal
liability or would be unduly prejudicial to Holders not joining in such
direction.
SECTION 5.13. WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of that series waive any past default hereunder with respect to that
series and its consequences, and the Holders of a majority in principal amount
of all Outstanding Securities may on behalf of the Holders of all Securities
waive any other past default hereunder and its consequences, except in each case
a default
(a) in the payment of the principal of or premium, if any, or interest on
or any Additional Amounts with respect to any Security, or
(b) in respect of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of the Holder of each
Outstanding Security affected.
On any such waiver, the waived 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.
21
SECTION 5.14. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess costs, including attorneys' fees, against any party litigant
in such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; but the provisions of this Section 5.14
shall not apply to any suit instituted by the Company, to any suit instituted by
the Trustee, to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than 10% in principal amount of the Outstanding Securities
of any series, or to any suit instituted by any Holder for the enforcement of
the payment of the principal of, or premium, if any, or interest on or any
Additional Amounts with respect to any Security on or after the Principal
Payment Date or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE VI
THE TRUSTEE
SECTION 6.01. CERTAIN DUTIES AND RESPONSIBILITIES.
The duties and responsibilities of the Trustee shall be as provided by this
Indenture and the Trust Indenture Act for securities issued pursuant to
indentures qualified thereunder. Except as otherwise provided herein,
notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability or risk in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity satisfactory to it
against such risk or liability is not reasonably assured to it. Whether or not
therein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Section 6.01. The Trustee shall not
be liable (a) for any error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts or (b) with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of not less than a majority in
aggregate principal amount of the then Outstanding Securities of any series or
all series, determined as provided in Section 5.12, relating to the time, method
and place of conducting any proceeding or any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee, under this Indenture
with respect to those Securities. Prior to the occurrence of an Event of Default
with respect to Securities of any series and after the curing or waiving of all
Events of Default with respect to all series which may have occurred: (a) the
duties and obligations of the Trustee shall be determined solely by the express
provisions of this Indenture and in the Trust Indenture Act, and the Trustee
shall not be liable except for the performance of such duties and obligations as
are specifically set forth in this Indenture and in the Trust Indenture Act, and
no implied covenants or obligations shall be read in to this Indenture against
the Trustee; and (b) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions therein, on any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of this Indenture
and believed by the Trustee to be genuine and to have been signed or presented
by the proper party or parties; but in the case of any such statements,
certificates or options 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 on their face to the requirements
of this Indenture. If a default or an Event of Default with respect to
Securities of any series has occurred and is continuing, the Trustee shall
exercise the rights and powers vested in it by this Indenture and use the same
degree of care and skill in its exercise thereof as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
SECTION 6.02. NOTICE OF DEFAULTS.
The Trustee shall give the Holders of Securities of each series notice of
any default hereunder with respect to the Securities of that series known to it
as and to the extent provided by the Trust Indenture Act; provided, however,
that in the case of any default with respect to the Securities of that series of
the character specified in Section 5.01(c), no such notice to those Holders
shall be given until at least 30 days after the occurrence thereof; and
provided, further, that, except
22
in the case of a default in payment of principal of, premium, if any, or
interest on or any Additional Amounts with respect to any Securities of any
series, the Trustee may withhold notice to the Holders of those Securities if
and so long as a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of those Holders. For the
purpose of this Section 6.02, the term "default" with respect to the Securities
of any series means any event which is, or after notice or lapse of time or both
would become, an Event of Default with respect to those Securities.
SECTION 6.03. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 6.01:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting on any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely on
an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee security or indemnity satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be required to give any bond or surety in respect
of the performance of its power and duties hereunder; and
(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, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney.
SECTION 6.04. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The statements and recitals contained herein and in the Securities and in
any other document in connection with the sale of the Securities, except the
Trustee's certificate of authentication, shall be taken as the statements of the
Company, and the Trustee and any Authenticating Agent assume no responsibility
for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Securities. The Trustee and any
Authenticating Agent shall not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 6.05. MAY HOLD SECURITIES.
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The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
6.08 and 6.13, may otherwise deal with the Company or any Affiliate of the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 6.06. MONEY HELD IN TRUST.
Money held by the Trustee or any Paying Agent in trust hereunder need not
be segregated from other funds except to the extent required by law. The Trustee
or any Paying Agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 6.07. COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(a) to pay to the Trustee from time to time compensation for all services
rendered by it hereunder (including its services as Security Registrar or Paying
Agent, if so appointed by the Company) as may be mutually agreed on in writing
by the Company and the Trustee (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(b) except as otherwise expressly provided herein, to reimburse the Trustee
and each predecessor Trustee promptly on its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
connection with the performance of its duties under any provision of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel and all other persons not regularly in
its employ) except to the extent any such expense, disbursement or advance may
be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee and each predecessor Trustee (each, an
"indemnitee") for, and to hold the indemnitee harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part,
arising out of or in connection with the acceptance or administration of this
Indenture or the trusts hereunder and its duties hereunder (including its
services as Security Registrar or Paying Agent, if so appointed by the Company),
including enforcement of this Indenture (including this Section 6.07) and
including the costs and expenses of defending itself against or investigating
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder. The Company shall defend any claim or threatened
claim asserted against an indemnitee for which it may seek indemnity, and the
indemnitee shall cooperate in the defense unless, in the reasonable opinion of
the indemnitee's counsel, the indemnitee has an interest adverse to the Company
or a potential conflict of interest exists between the indemnitee and the
Company, in which case the indemnitee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel; provided that the
Company shall only be responsible for the reasonable fees and expenses of one
law firm (in addition to local counsel) in any one action or separate
substantially similar actions in the same jurisdiction arising out of the same
general allegations or circumstances, such law firm to be designated by the
indemnitee.
When the Trustee or any predecessor Trustee incurs expenses or renders
services in connection with the performance of its obligations hereunder
(including its services as Security Registrar or Paying Agent, if so appointed
by the Company) after an Event of Default specified in Section 5.01(d) or (e)
occurs, those expenses and the compensation for those services are intended to
constitute expenses of administration under any applicable bankruptcy,
insolvency or other similar federal or state law to the extent provided in
Section 503(b)(5) of Title 11 of the United States Code, as now or hereafter in
effect.
SECTION 6.08. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section 6.08, with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting interest,
either eliminate that conflicting interest or resign with respect to the
Securities of that series in the manner and with the effect hereinafter
specified in this Article VI.
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(b) In the event that the Trustee shall fail to comply with the provisions
of paragraph (a) of this Section 6.08 with respect to the Securities of any
series, the Trustee shall, within 10 days after the expiration of the 90-day
period referred to in that paragraph (a), transmit by mail to all Holders of
Securities of that series, as their names and addresses appear in the Security
Register for that series, notice of that failure.
(c) For the purposes of this Section, the term "conflicting interest" shall
have the meaning specified in Section 310(b) of the Trust Indenture Act and the
Trustee shall comply with Section 310(b) of the Trust Indenture Act; provided,
that there shall be excluded from the operation of Section 310(b)(1) of the
Trust Indenture Act with respect to the Securities of any series any indenture
or indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding, if the
requirements for such exclusion set forth in Section 310(b)(1) of the Trust
Indenture Act are met. For purposes of the preceding sentence, the optional
provision permitted by the second sentence of Section 310(b)(9) of the Trust
Indenture Act shall be applicable.
SECTION 6.09. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a Person
that (i) is eligible pursuant to the Trust Indenture Act to act as such, (ii)
has (or, in the case of a corporation included in a bank holding company system,
whose related bank holding company has) a combined capital and surplus of at
least $50,000,000 and (iii) has a Corporate Trust Office in the Borough of
Manhattan, The City of New York, or a designated agent. If such Person publishes
reports of conditions at least annually, pursuant to law or to the requirements
of a Federal or state supervising or examining authority, then for the purposes
of this Section 6.09, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.09, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article VI.
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 VI shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee for those Securities which is
required by Section 6.11 shall not have been delivered to the resigning Trustee
within 30 days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the appointment of
a successor Trustee for those Securities.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by an Act of the Holders of a majority in principal amount of the
Outstanding Securities of that series delivered to the Trustee and to the
Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.08 with respect to the
Securities of any series after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security of that series for the last
six months, or
(ii) the Trustee shall cease to be eligible under Section 6.09 with respect
to the Securities of any series and shall fail to resign after written request
therefor by the Company or by any Holder who has been a bona fide Holder of a
Security of that series for the last six months, or
(iii) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee with respect to the Securities of all series, or (ii) subject
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to Section 5.14, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the
Trustee and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to those
Securities (it being agreed that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of those series and that at
any time there shall be only one Trustee with respect to the Securities of any
particular series) and such successor Trustee or Trustees shall comply with the
applicable requirements of Section 6.11. If no successor Trustee with respect to
the Securities of any series shall have been so appointed by the Company and
accepted appointment in the manner required by Section 6.11, any Holder who has
been a bona fide Holder of a Security of that series for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of that series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series to all Holders
of the Securities of that series in the manner provided in Section 1.06. 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 with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, on payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each such successor Trustee so appointed shall execute and
deliver an indenture supplemental hereto wherein each such successor Trustee
shall accept such appointment and which (i) shall contain such provisions as
shall be necessary or desirable to transfer and confirm to, and to vest in, each
such successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (ii) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee and (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and on the
execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any such successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates.
(c) On request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in
paragraph (a) or (b) of this Section 6.11, as the case may be.
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(d) No successor Trustee shall accept its appointment unless, at the time
of that acceptance, that successor Trustee shall be qualified and eligible under
this Article VI.
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 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 VI,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated those Securities.
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 on the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
SECTION 6.14. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with the consent
of the Company and at the expense of the Company which shall be authorized to
act on behalf of the Trustee to authenticate Securities issued on original issue
and on exchange, registration of transfer, partial conversion or partial
redemption or pursuant to Section 3.06, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a Person organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having (or, in the case of a corporation included in a bank holding
company system, whose related bank holding company has) 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 6.14,
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 6.14, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section 6.14.
Any Person into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any Person succeeding to the corporate agency or corporate trust business of
an Authenticating Agent, shall continue to be an Authenticating Agent, provided
such Person shall be otherwise eligible under this Section 6.14, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. On receiving such a notice of
resignation or on 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 6.14, the Trustee may appoint a successor Authenticating Agent
acceptable to the Company and shall mail notice of such appointment by
first-class mail, postage prepaid, to all Holders of Securities for which such
successor Authenticating Agent has been appointed as their names and addresses
appear in the Security Register. Any successor
27
Authenticating Agent on acceptance of its appointment under this Section
6.14 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 to act as such under the provisions of this Section 6.14.
Any Authenticating Agent by the acceptance of its appointment shall be
deemed to have represented to the Trustee that it is eligible for appointment as
Authenticating Agent under this Section 6.14 and to have agreed with the Trustee
that: it will perform and carry out the duties of an Authenticating Agent as
herein set forth, including, among other duties, the duties to authenticate
Securities when presented to it in connection with the original issuance and
with exchanges, registrations of transfer or redemptions or conversions thereof
or pursuant to Section 3.06; it will keep and maintain, and furnish to the
Trustee from time to time as requested by the Trustee, appropriate records of
all transactions carried out by it as Authenticating Agent and will furnish the
Trustee such other information and reports as the Trustee may require; and it
will notify the Trustee promptly if it shall cease to be eligible to act as
Authenticating Agent in accordance with the provisions of this Section 6.14. Any
Authenticating Agent by the acceptance of its appointment shall be deemed to
have agreed with the Trustee to indemnify the Trustee against any loss,
liability or expense incurred by the Trustee and to defend any claim asserted
against the Trustee by reason of any acts or failures to act of such
Authenticating Agent, but such Authenticating Agent shall have no liability for
any action taken by it in accordance with the specific written direction of the
Trustee.
The Trustee shall not be liable for any act or any failure of the
Authenticating Agent to perform any duty either required herein or authorized
herein to be performed by such person in accordance with this Indenture.
The Company agrees to pay to each Authenticating Agent from time to time
compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Securities may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
"This is one of the Securities of the series designated, described or
provided for in the within-mentioned Indenture.
------------------------------------
BANK OF OKLAHOMA, N.A.
By: _________________________________
AS AUTHENTICATING AGENT
By: _________________________________
AUTHORIZED SIGNATORY"
Notwithstanding any provision of this Section 6.14 to the contrary, if at
any time any Authenticating Agent appointed hereunder with respect to any series
of Securities shall not also be acting as the Security Registrar hereunder with
respect to that series of Securities, then, in addition to all other duties of
an Authenticating Agent hereunder, such Authenticating Agent shall also be
obligated to furnish to the Security Registrar for that series of Securities
promptly all information necessary to enable that Security Registrar to maintain
at all times an accurate and current Security Register for that series of
Securities. Furthermore, the Security Registrar for that series of Securities
shall also be obligated to furnish the Authenticating Agent promptly all
information necessary to enable that Authenticating Agent to maintain at all
times accurate and current records for that series of Securities.
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ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee with
respect to each series of Securities:
(a) semi-annually, not more than 15 days after each Regular Record Date, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of the Securities of that series as of such Regular
Record Date and
(b) not less than 15 days prior to the date on which the Trustee is
required or permitted to send any notice, report, or other information to
Holders, and
(c) 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.
Notwithstanding the foregoing, so long as the Trustee is the Security
Registrar, no such list shall be required to be furnished.
SECTION 7.02. PRESERVATION OF INFORMATION; COMMUNICATION TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities of each series
contained in the most recent list furnished to the Trustee as provided in
Section 7.01 and the names and addresses of Holders of those Securities. The
Trustee may destroy any list furnished to it as provided in Section 7.01 on
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 Securities, and the corresponding
rights and duties of the Trustee, shall be as provided by the Trust Indenture
Act.
(c) Every Holder of Securities, by receiving and holding the same, agrees
with the Company, each Subsidiary Guarantor and the Trustee that neither the
Company, any Subsidiary Guarantor nor the Trustee nor any agent of either of
them shall be held accountable by reason of any disclosure of information as to
names and addresses of Holders made pursuant to the Trust Indenture Act or
otherwise in accordance with this Indenture.
SECTION 7.03. REPORTS BY TRUSTEE.
(a) Not later than 60 days following each May 15, the Trustee shall
transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange on which the
Securities of any series are listed, with the Commission and with the Company.
The Company will notify the Trustee when the Securities are listed on any stock
exchange.
SECTION 7.04. REPORTS BY COMPANY.
(a) The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to the Trust Indenture Act; provided,
that any such information, documents or reports required to be filed with the
Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be filed
with the Trustee within 15 days after the same is so required to be filed with
the Commission.
29
(b) The Company shall file with the Trustee an Officer's Certificate and
supporting documentation, along with such other information and documentation as
may be required by the Trustee to document the payment by the Company of all
obligations hereunder within 15 days after any such payment is made.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.01. 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 in one transaction or a series of related transactions 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 in one transaction or a series of related transactions,
the Person formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall be a
corporation, partnership, limited liability company or trust, shall be organized
and validly existing under the laws of the United States of America, any State
thereof or the District of Columbia and shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, the due and punctual payment of the principal of, premium, if
any, and interest on and any Additional Amounts with respect to all the
Securities and the performance or observance of every covenant of this Indenture
on the part of the Company to be performed or observed;
(b) immediately after giving effect to such transaction, no Event of
Default with respect to Securities of any series, and no event which, after
notice or lapse of time or both, would become an Event of Default with respect
to Securities of any series, shall have occurred and be continuing;
(c) such consolidation, merger, conveyance, transfer or lease does not
adversely affect the validity or enforceability of the Securities of any series;
and
(d) the Company or the successor Person has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture comply with this Article VIII and that all conditions precedent herein
provided for relating to such transaction have been complied with.
SECTION 8.02. SUCCESSOR SUBSTITUTED.
On any consolidation of the Company with, or merger of the Company into,
any other Person or any conveyance, transfer or lease the properties and assets
of the Company substantially as an entirety to any Person in one transaction or
a series of related transactions in accordance with Section 8.01, the successor
Person formed by such consolidation or into which the Company is merged or to
which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein, and thereafter, except in the case of a transfer by
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.01. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, each Subsidiary Guarantor, when authorized by a Board Resolution,
and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of
the following purposes:
(a) to set forth the terms of the Securities of any unissued series,
including the additional indebtedness or other liabilities to which the
Securities of that series will be subordinated as contemplated by Section 3.01;
or
(b) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants of the Company herein and in
the Securities; or
(c) for the benefit of the Holders of Securities of any or all series, to
add to the covenants of the Company, add an additional Event of Default or
surrender any right or power conferred herein or in the Securities of any series
on the Company (and if any such covenant, Event of Default or surrender is to be
for the benefit of Holders of Securities of less than all series, stating that
such covenants, Event of Default or surrender is or are being included solely
for the benefit of the Holders of Securities of those series referred to in the
supplemental indenture); or
(d) to secure the Securities of any or all series or any Subsidiary
Guarantee; or
(e) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is adversely affected by such change in or
elimination of such provision; or
(f) to supplement any of the provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the defeasance and discharge of any
series of Securities pursuant to Section 4.01; provided, however, that any such
action shall not adversely affect the interest of the Holders of Securities of
such series or any other series of Securities in any material respect; or
(g) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 6.11(b);
(h) to cure any ambiguity or omission, to correct or supplement any
provision herein or in the Securities of any or all series which may be
defective or inconsistent with any other provision herein or in the Securities
of any or all series, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent with the
provisions of this Indenture; provided, that such action pursuant to this clause
(i) shall not adversely affect the interests of the Holders of Securities of any
series in any material respect and the Trustee may rely on an Opinion of Counsel
to that effect; or
(i) to release a Subsidiary Guarantor from its obligations under this
Indenture and its Subsidiary Guarantee in accordance with the provisions hereof
and thereof.
SECTION 9.02. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities, by Act of said Holders delivered to the
Company and the Trustee, or, if the rights of one or more, but less than all,
series of Outstanding Securities are to be affected, then with the consent of
the Holders of not less than a majority in principal amount of all the series of
Outstanding Securities so to be affected, by Act of said Holders (acting as one
class) delivered to the Company and the Trustee, the Company, when authorized by
a Board Resolution, each Subsidiary Guarantor,
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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 under
this Indenture; provided, however, that no such supplemental indenture shall,
without the consent of the Holder of each Outstanding Security affected thereby,
(a) change the Principal Payment Date of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon, any Additional Amounts
with respect thereto or any premium payable on the redemption thereof, or reduce
the amount of the principal of any Original Issue Discount Security that would
be due and payable on a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02, where, or the coin or currency or currencies
(including composite currencies) in which, any Security or any premium or any
interest thereon or Additional Amount with respect thereto is payable, or impair
the right to institute suit for the enforcement of any such payment on or after
the Principal Payment Date thereof (or, in the case of redemption, on or after
the Redemption Date), or the provisions of this Indenture with respect to the
subordination of the Securities (except as contemplated by Section 3.01 and
permitted by Section 9.01(a)), in a matter adverse to the Holders; or
(b) reduce the percentage in principal amount of Outstanding Securities the
consent of whose Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture; or
(c) modify any of the provisions of this Section 9.02, Section 5.13 or
Section 10.06, except to increase any percentage provided herein or therein or
to provide with respect to any particular series the right to condition the
effectiveness of any supplemental indenture as to that series on the consent of
the Holders of a specified percentage of the aggregate principal amount of
Outstanding Securities of that series (which provision may be made pursuant to
Section 3.01 without the consent of any Holder) or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the Holder of each Outstanding Security affected thereby, provided, that this
clause (c) shall not be deemed to require the consent of any Holder with respect
to changes in the references to "the Trustee" and concomitant changes in this
Section 9.02 and Section 10.06, or the deletion of this proviso, in accordance
with the requirements of Sections 6.11(b) and 9.01(g).
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section 9.02 to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if that Act approves the substance thereof.
The determination of the Trustee as to the series of Securities the rights
of which are to be affected pursuant to this Section 9.02 shall be conclusive,
and the Trustee in making that determination shall be protected in relying on an
Opinion of Counsel.
SECTION 9.03. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article IX or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.01) shall be fully protected in relying on,
an Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture that adversely affects the Trustee's own rights, duties or immunities
under this Indenture or otherwise.
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SECTION 9.04. EFFECT OF SUPPLEMENTAL INDENTURES.
On the execution of any supplemental indenture under this Article IX, this
Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.05. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article IX shall
conform to the requirements of the Trust Indenture Act.
SECTION 9.06. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article IX may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and (at the specific direction of the
Company) authenticated and delivered by the Trustee in exchange for Outstanding
Securities of that series.
SECTION 9.07. NOTICE OF SUPPLEMENTAL INDENTURE.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to Section 9.02, the Company shall transmit to
the Holders of Securities of all series affected thereby a notice setting forth
the substance of that supplemental indenture.
ARTICLE X
COVENANTS
SECTION 10.01. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of, premium, if
any, and interest on and any Additional Amounts with respect to the Securities
of that series in accordance with the terms of those Securities and this
Indenture.
SECTION 10.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the Place of Payment for each series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer, where Securities of that series may be surrendered
for exchange or conversion and where notices and demands to or on the Company in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of any such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in each Place of Payment for Securities of any series for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
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SECTION 10.03. MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect
to any series of Securities, it will, on or before each due date of the
principal of, premium, if any, or interest on or any Additional Amounts with
respect to any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay the entire
amount so becoming due until such sum shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, on or prior to each due date of the principal of, premium,
if any, or interest on or any Additional Amounts with respect to any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay the entire
amount so becoming due, such sum to be held as provided by the Trust Indenture
Act, and (unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee or the
Company for each series of Securities 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 10.03, that such Paying Agent will: (a) comply
with the provisions of the Trust Indenture Act and this Indenture applicable to
it as a Paying Agent and hold all sums held by it for the payment of principal
of or any premium or interest on or any Additional Amounts with respect to the
Securities of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to those Persons or otherwise disposed of
as herein provided; (b) give the Trustee notice of any default by the Company
(or any other obligor on the Securities) in the making of any payment in respect
of the Securities of that series; and (c) at any time during the continuance of
any default by the Company (or any other obligor on the Securities of that
series) in the making of any payment in respect of the Securities of that
series, on the written request of the Trustee, forthwith pay to the Trustee all
sums held in trust by such Paying Agent for payment in respect of the Securities
of that series, and account for any funds disbursed.
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 on the
same trusts as those on which such sums were held by the Company or such Paying
Agent; and, on such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, premium, if any, or
interest on or any Additional Amounts with respect to any Security of any series
and remaining unclaimed for two years after that principal, premium, if any,
interest or Additional Amounts, if any, has become due and payable shall be paid
to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of that Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in Phoenix, Arizona or
Dallas, Texas, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 10.04. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, an Officers'
Certificate stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
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SECTION 10.05. EXISTENCE.
Subject to Article VIII, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence, rights
(charter and statutory) and franchises and the existence, rights (charter and
statutory) and franchises of each Subsidiary; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders of
Securities of any series.
SECTION 10.06. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any covenant
or condition set forth in Section 10.05, or any covenant added for the benefit
of any series of Securities as contemplated by Section 3.01 (unless otherwise
specified pursuant to Section 3.01) if before or after the time for such
compliance the Holders of a majority in principal amount of the Outstanding
Securities of all series affected by that omission (acting as one class) shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
SECTION 10.07. ADDITIONAL AMOUNTS.
If the Securities of a series expressly provide for the payment of
Additional Amounts, the Company will pay to the Holder of any Security of that
series Additional Amounts as expressly provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of or
any premium or interest on, or in respect of, any Security of any series or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided for in this Section 10.07 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section 10.07 and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
If the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company shall furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series who are United
States Aliens without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of that series. If any
such withholding shall be required, then such Officers' Certificate shall
specify by country the amount, if any, required to be withheld on such payments
to such Holders of Securities and the Company will pay to such Paying Agent the
Additional Amounts required by this Section. The Company covenants to indemnify
the Trustee and any Paying Agent for, and to hold them harmless against any
loss, liability or expense reasonably incurred without negligence or bad faith
on their part arising out of or in connection with actions taken or omitted by
any of them in reliance on any Officers' Certificate furnished pursuant to this
Section 10.07.
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ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.01. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Maturity shall
be redeemable in accordance with their terms and (except as otherwise specified
as contemplated by Section 3.01 for Securities of any series) in accordance with
this Article XI.
SECTION 11.02. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced by
a Board Resolution. In case of any redemption at the election of the Company of
less than all the Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter period shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date and
of the principal amount of Securities of that series to be redeemed. In case of
any redemption at the election of the Company of all the Securities of any
series, the Company shall, at least 45 days prior to the Redemption Date fixed
by the Company (unless a shorter period shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date.
SECTION 11.03. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series are to be redeemed, the
particular Securities of that series to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Security Registrar, from the
Outstanding Securities of that series not previously called for redemption, by
lot or pro rata or by such other method as the Security Registrar shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities
of that series of a denomination larger than the minimum authorized denomination
for Securities of that series. If any Security selected for partial redemption
is converted in part before termination of the conversion right with respect to
the portion of the Security so selected, the converted portion of such Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Securities of any series which have been converted during a selection of
Securities of that series to be redeemed shall be treated by the Security
Registrar as Outstanding for the purpose of such selection. In any case where
more than one Security of the same series is registered in the same name, the
Security Registrar in its discretion may treat the aggregate principal amount so
registered as if it were represented by one Security of that series.
The Security Registrar shall promptly notify the Company and the Trustee in
writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
SECTION 11.04. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first-class mail, postage prepaid,
mailed not less than 15 nor more than 60 days prior to the Redemption Date, to
the Trustee and to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(a) the Redemption Date,
(b) the Redemption Price,
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(c) if less than all the Outstanding Securities of any series are to be
redeemed, the identification (and, in the ease of partial redemption of any
Securities, the principal amounts) of the particular Securities to be redeemed,
(d) that on the Redemption Date the Redemption Price will become due and
payable on each such Security to be redeemed and that (unless the Company shall
default in payment of the Redemption Price) interest thereon will cease to
accrue on and after said date,
(e) that the redemption is for a sinking fund, if that is the case,
(f) the conversion price, the date on which the right to convert the
Securities to be redeemed will terminate and the place or places where such
Securities may be surrendered for conversion, and
(g) the place or places where such Securities are to be surrendered for
payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request received by
the Trustee at least 25 days prior to the Redemption Date, by the Trustee in the
name and at the expense of the Company.
SECTION 11.05. DEPOSIT OF REDEMPTION PRICE.
At or prior to 7:00 a.m. Dallas, Texas time on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, and any Additional Amounts with respect to, all the
Securities or portions thereof which are to be redeemed on that date other than
any Securities called for redemption on that date which have been converted
prior to the date of such deposit.
If any Security called for redemption is converted, any money deposited
with the Trustee or with any Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to any right of the Holder of
such Security or any Predecessor Security to receive interest as provided in the
last paragraph of Section 3.07) be paid to the Company on Company Request or, if
then held by the Company, shall be discharged from such trust.
SECTION 11.06. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest and any Additional Amounts) such Securities shall cease to bear
interest or be entitled to any Additional Amounts. On surrender of any such
Security for redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest and
any Additional Amounts to the Redemption Date; provided, however, that
installments of interest whose Maturity is on or prior to the Redemption Date
shall be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid on surrender
thereof for redemption, the principal and premium, if any, shall, until paid,
bear interest from the Redemption Date at the rate borne by the Security.
SECTION 11.07 SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be surrendered at
an office or agency of the Company maintained for that purpose pursuant to
Section 10.02 (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing), and the Company shall execute, and the Trustee shall authenticate
and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same
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series, of any authorized denomination as requested by such Holder, in an
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE XII
SUBORDINATION OF SECURITIES
SECTION 12.01. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that, at all times and in all
respects, the indebtedness represented by the Securities and the payment of the
principal of, premium, if any, and interest on and any Additional Amounts with
respect to each and all of the Securities are hereby expressly made subordinate
and subject in right of payment to the prior payment in full of all Senior
Indebtedness. Obligations in respect of Senior Indebtedness will not be deemed
to have been paid in full unless the holders thereof shall have received payment
in full in cash or cash equivalents with respect thereto.
Each Holder of the Securities by its acceptance thereof acknowledges and
agrees that the subordination provisions included herein are, and are intended
to be, an inducement and a consideration to each holder of any Senior
Indebtedness, whether such Senior Indebtedness was created or acquired before or
after the issuance of Securities, to acquire and/or continue to hold such Senior
Indebtedness, and such holder of Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring and/or
continuing to hold such Senior Indebtedness.
SECTION 12.02. PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or proceeding,
relative to the Company or to its creditors, as such, or to a substantial part
of its assets, or (b) any proceeding for the liquidation, dissolution or other
winding up of the Company, whether voluntary or involuntary and whether or not
involving insolvency or bankruptcy, or (c) any general assignment for the
benefit of creditors or any other marshaling of assets and liabilities of the
Company, then and in any such event the holders of Senior Indebtedness shall be
entitled to receive payment in full of all Obligations due or to become due on
or in respect of all Senior Indebtedness before the Holders of the Securities
are entitled to receive any payment or distribution of any kind or character,
whether in cash, property or securities, on account of principal of, premium, if
any, or interest on or any Additional Amounts with respect to the Securities,
and to that end the holders of Senior Indebtedness shall be entitled to receive,
for application to the payment thereof, any payment or distribution of any kind
or character, including any such payment or distribution which may be payable or
deliverable by reason of the payment of any other indebtedness of the Company
being subordinated to the payment of the Securities, which may be payable or
deliverable in respect of the Securities in any such case, proceeding,
dissolution, liquidation or other winding up or event. In furtherance of the
foregoing, but not by way of limitation thereof, in the event of any case or
proceeding described in clause (a) above in or as a result of which the Company
is excused from the obligation to pay all or any part of the interest otherwise
payable in respect of any Senior Indebtedness during the period subsequent to
the commencement of any such case or proceeding, all or such part, as the case
may be, of such interest shall be payable out of, and to that extent shall
diminish and be at the expense of, reorganization dividends or other
distributions in respect of the Securities.
In the event that, notwithstanding the foregoing provisions of this Section
12.02, the Trustee or the Holder of any Security shall have received any payment
or distribution of any kind or character in respect of the Securities, whether
in cash, property or securities, including any such payment or distribution
which may be payable or deliverable by reason of the payment of any other
indebtedness of the Company being subordinated to the payment of the Securities,
before all Senior Indebtedness is paid in full, such payment or distribution
shall be held by the Trustee (if the Trustee has knowledge that such payment or
distribution is prohibited by this Section 12.02) or by such Holder (in trust)
for the holders of Senior Indebtedness, and shall be paid forthwith over and
delivered 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 Indebtedness
remaining unpaid, to the extent necessary to pay all Senior Indebtedness in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness.
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To the extent any payment of or distribution in respect of Senior
Indebtedness (whether by or on behalf of the Company, as proceeds of security or
enforcement of any right of set off or otherwise) is declared to be fraudulent
or preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person under any
bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then
if such payment or distribution is recovered by, or paid over to, such receiver,
trustee in bankruptcy, liquidating trustee, agent or other similar Person, the
Senior Indebtedness or part thereof originally intended to be satisfied shall be
deemed to be reinstated and outstanding as if such payment has not occurred.
For purposes of this Article XII only, (a) a "distribution" may consist of
cash, securities or other property, by set-off or otherwise and (b) the words
"cash, property or securities" shall not be deemed to include securities 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 Senior Indebtedness which
may at the time be outstanding to substantially the same extent as, or to a
greater extent than, the Securities are so subordinated as provided in this
Article XII. 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 conveyance or transfer of its properties and assets substantially as an
entirety to another Person on the terms and conditions set forth in Article VIII
shall not be deemed a dissolution, winding up, liquidation, reorganization,
general assignment for the benefit of creditors or marshaling of assets and
liabilities of the Company for the purposes of this Section 12.02 if the Person
formed by such consolidation or into which the Company is merged or which
acquires by conveyance or transfer such properties and assets substantially as
an entirety, as the case may be, shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions set forth in Article VIII.
SECTION 12.03. NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
The Company may not make any payment (whether by redemption, purchase,
retirement, defeasance or otherwise) to the Trustee or any Holder on account of
the principal of, premium, if any, or interest on or any Additional Amounts with
respect to the Securities and may not acquire from the Trustee or any Holder any
Securities (other than payments and other distributions made from any defeasance
trust created pursuant to Section 4.01 if the applicable deposit does not
violate Article IV or this Article XII) until all principal and other
Obligations with respect to the Senior Indebtedness of the Company have been
paid in full if:
(a) a default in the payment of any principal of, premium, if any, or
interest on Designated Senior Indebtedness occurs; or
(b) a default, other than a payment default, on Designated Senior
Indebtedness occurs and is continuing that then permits holders of the
Designated Senior Indebtedness as to which such default relates to accelerate
its maturity and the Trustee receives a notice of the default (a "Payment
Blockage Notice") from a Person who is a Representative of the holders of such
Designated Senior Indebtedness, provided, that if such Designated Senior
Indebtedness is of the type referred to in clause (b) of the definition thereof,
the Payment Blockage Notice shall be given by a Representative of the holders of
at least 20% of such Designated Senior Indebtedness. If the Trustee receives any
such Payment Blockage Notice, no subsequent Payment Blockage Notice shall be
effective for purposes of this Section 12.03 unless and until 360 days shall
have elapsed since the date of commencement of the payment blockage period
resulting from the immediately prior Payment Blockage Notice. No nonpayment
default in respect of any Designated Senior Indebtedness that existed or was
continuing on the date of delivery of any Payment Blockage Notice to the Trustee
shall be, or be made, the basis for subsequent Payment Blockage Notices.
The Company shall resume payments on and distributions in respect of the
Securities and may acquire Securities on:
(a) in the case of a default referred to in subparagraph (a) of the
preceding paragraph, the date on which the default is cured or waived, or
(b) in the case of a default referred to in subparagraph (b) of the
preceding paragraph, the earliest of (i) the date on which such nonpayment
default is cured or waived, (ii) the date the applicable Payment Blockage Notice
is retracted by written notice to the Trustee from the Person who is a
Representative of the holders of the relevant Designated
39
Senior Indebtedness and (iii) 179 days after the date on which the
applicable Payment Blockage Notice is received unless (A) any of the events
described in subparagraph (a) of the preceding paragraph has occurred and is
continuing or (B) a default or Event of Default under clause (d) or (e) of
Section 5.01 has occurred, if this Article XII otherwise permits the payment,
distribution or acquisition at the time of such payment or acquisition.
In the event that, notwithstanding the foregoing, the Company shall make
any payment or distribution to the Trustee or the Holder of any Security
prohibited by the foregoing provisions of this Section 12.03, such payment or
distribution shall be held by the Trustee (if the Trustee has knowledge that
such payment or distribution is so prohibited) or by such Holder (in trust) for
the holders of Senior Indebtedness, and shall be paid forthwith over and
delivered (a) to the holders of Senior Indebtedness or their respective
Representatives as their respective interests may appear or (b) as a court of
competent jurisdiction shall direct, in each case for application to the payment
of all Obligations with respect to Senior Indebtedness remaining unpaid to the
extent necessary to pay such Obligations in full in accordance with their terms,
after giving effect to any concurrent payment or distribution to or for the
holders of Senior Indebtedness.
The provisions of this Section 12.03 shall not apply to any payment with
respect to which Section 12.02 would be applicable.
SECTION 12.04. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article XII or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except under
the circumstances referred to in Section 12.02 or under the conditions described
in Section 12.03, from making payments at any time of principal of, premium, if
any, or interest on or any Additional Amounts with respect to the Securities, 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, premium, if any, or interest
on or any Additional Amounts with respect to the Securities if, at the time of
such application by the Trustee, it did not have knowledge within the meaning of
Section 12.09 that such payment would have been prohibited by the provisions of
this Article XII.
SECTION 12.05. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Obligations in respect of Senior
Indebtedness, the Holders of the Securities shall be subrogated to the extent of
the payments or distributions made to the holders of Senior Indebtedness
pursuant to the provisions of this Article XII (equally and ratably with the
holders of all indebtedness of the Company which by its express terms is
subordinated to other indebtedness of the Company to substantially the same
extent as the Securities are subordinated and is entitled to like rights of
subrogation) to the rights of the holders of Senior Indebtedness to receive
payments and distributions applicable to the Senior Indebtedness until the
principal of, premium, if any, and interest on and any Additional Amounts with
respect to the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior
Indebtedness to which the Holders of the Securities or the Trustee would be
entitled except for the provisions of this Article XII, and no payments over
pursuant to the provisions of this Article XII to the holders of Senior
Indebtedness by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Indebtedness and the Holders
of the Securities, be deemed to be a payment or distribution by the Company to
or on account of the Senior Indebtedness.
SECTION 12.06. PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article XII are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities on the
one hand and the holders of Senior Indebtedness on the other hand. Nothing
contained in this Article XII or elsewhere in this Indenture or in the
Securities is intended to or shall: (a) impair, as among the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of, premium, if any, and
interest on and any Additional Amounts with respect to the Securities as and
when the same shall become due and payable in accordance with their terms; (b)
affect the relative rights against the Company or the Holders of the Securities
and creditors of the Company other than the holders of Senior Indebtedness; or
(c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law on default under this Indenture,
subject to the rights, if any, under this Article XII of the holders of Senior
Indebtedness to receive distributions otherwise payable or deliverable to the
Trustee or such Holder.
40
SECTION 12.07. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each holder of a Security by his acceptance thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article XII and appoints the
Trustee his attorney-in-fact for any and all such purposes.
SECTION 12.08. NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act 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 any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the preceding paragraph, the
holders of Senior Indebtedness may, at any time and from time to time, without
the consent of or notice to the Trustee or the Holders of the Securities,
without incurring responsibility to the Trustee or the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
XII or the obligations hereunder of the Trustee or the Holders of the Securities
to the holders of Senior Indebtedness, do any one or more of the following: (a)
change the manner, place or terms of payment or extend the time of payment of,
or renew or alter, Senior Indebtedness, or otherwise amend or supplement in any
manner Senior Indebtedness or any instrument evidencing the same or any
agreement under which Senior Indebtedness is outstanding; (b) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (c) release any Person liable in any manner for
the collection of Senior Indebtedness; and (d) exercise or refrain from
exercising any rights against the Company and any other Person.
SECTION 12.09. 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 Securities. Notwithstanding the provisions of this
Article XII or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Indebtedness or from any Representative therefor;
and, prior to the receipt of any such written notice, the Trustee, subject to
the provisions of Section 6.01, shall be entitled in all respects to assume that
no such facts exist; provided, however, that if the Trustee shall not have
received the notice provided for in this Section 12.09 at least two Business
Days prior to the date on which by the terms hereof any money may become payable
for any purpose (including, without limitation, the payment of the principal of,
premium, if any, or interest on or any Additional Amounts with respect to any
Security), then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such money and to apply
the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it within two
Business Days prior to such date.
Subject to the provisions of Section 6.01, the Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Indebtedness (or a Representative therefor) to
establish that such notice has been given by a holder of Senior Indebtedness (or
a Representative therefor). In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article XII, the Trustee may request such Person to furnish
evidence to the satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent to the
rights of such Person under this Article XII, and if such evidence is not
furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 12.10. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING AGENT.
On any payment or distribution in respect of the Securities or Senior
Indebtedness referred to in this Article XII, the Trustee, subject to the
provisions of Section 6.01, and, so long as the provisions of this Article XII
have been
41
brought to the attention of the court, tribunal, trustee or other Person
making the payment or distribution, the Holders of the Securities shall be
entitled to rely on any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or 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 Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article XII.
SECTION 12.11. TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if it shall,
absent gross negligence or wilful misconduct, mistakenly pay over or distribute
to Holders of Securities or to the Company or to any other Person cash, property
or securities to which holders of Senior Indebtedness shall be entitled by
virtue of this Article XII or otherwise. With respect to the holders of Senior
Indebtedness, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article XII, and
no implied covenants or obligations with respect to the holders of Senior
Indebtedness shall be read into this Article XII against the Trustee.
SECTION 12.12. RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS; PRESERVATION
OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the rights
set forth in this Article XII with respect to any Senior Indebtedness which may
at any time be held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article XII shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.07.
SECTION 12.13. 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 XII 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 intents and purposes as if such Paying Agent were
named in this Article XII in addition to or in place of the Trustee; provided,
however, that Section 12.12 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 12.14. NO SUSPENSION OF REMEDIES.
Nothing contained in this Article XII shall limit the right of the Trustee
or the Holders of the Securities of any series to take any action to accelerate
the maturity of the Securities of that series pursuant to the provisions
described under Article V and as set forth in this Indenture or to pursue any
rights or remedies hereunder or under applicable law, subject to the rights, if
any, under this Article XII of the holders, from time to time, of Senior
Indebtedness to receive the cash, property or securities receivable on the
exercise of such rights or remedies.
SECTION 12.15 SUBORDINATION OF SUBSIDIARY GUARANTEES
The obligations of each Subsidiary Guarantor under any Subsidiary Guarantee
relating to a series of Securities issued pursuant to this Indenture shall be
subordinated to the Senior Indebtedness of such Subsidiary Guarantor to the same
extent and in the same manner as the Securities of such series are subordinated
to Senior Indebtedness of the Company, or, if so provided in a Board Resolution,
Officers' Certificate or executed supplemental indenture referred to in Sections
2.01 and 3.01 by or pursuant to which the form and terms of the Securities of
such series and the related Subsidiary Guarantees were established, as and to
the extent provided by the terms thereof, and each Holder of the Securities of
each series, by his acceptance thereof, likewise covenants and agrees to the
subordination herein or therein
42
provided and shall be bound by the provisions hereof or thereof. For the
purposes of the foregoing sentence, the Trustee and the Holders of the
Securities shall have the right to receive or retain payments by any of the
Subsidiary Guarantors only at such time as they may receive or retain payments
in respect of the Securities pursuant to this Indenture.
ARTICLE XIII
MEETINGS OF HOLDERS OF SECURITIES
SECTION 13.01. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any or all series may be called at
any time and from time to time pursuant to this Article to make, give or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
SECTION 13.02. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 13.01, to be held at such time
and at such place in Dallas, Texas, or in any other location, as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any series,
setting forth the time and the place of such meeting and in general terms the
action proposed to be taken at such meeting, shall be given, in the manner
provided in Section 1.06, not less than 20 nor more than 180 days prior to the
date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 20% in aggregate principal amount of the Outstanding
Securities of any series, shall have requested the Trustee for that series to
call a meeting of the Holders of Securities of that series for any purpose
specified in Section 13.01, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have made the first publication of the notice of that meeting within 30 days
after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Securities of that series in the amount above specified, as the case may be, may
determine the time and the place in Dallas, Texas, for such meeting and may call
such meeting for such purposes by giving notice thereof as provided in
Subsection (a) of this Section 13.02.
SECTION 13.03. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (a) a Holder of one or more Outstanding Securities of
that series or (b) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of that series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
SECTION 13.04. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of that series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of that series, be dissolved.
In any other case, the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Subject to Section 13.05(d), notice of the reconvening of any
adjourned meeting shall be given as provided in Section 13.02(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly that Persons entitled to vote a majority
in principal amount of the Outstanding Securities of that series shall
constitute a quorum.
43
Except as limited by the proviso to Section 9.02, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in aggregate principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 9.02, any
resolution with respect to any request, demand, authorization, direction,
notice, consent or waiver which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage that is less than a
majority in aggregate principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in aggregate principal amount of the Outstanding Securities
of that series.
Except as limited by the proviso to Section 9.02, any resolution passed or
decision taken at any meeting of Holders of Securities of any series duly held
in accordance with this Section shall be binding on all the Holders of
Securities of that series, whether or not present or represented at the meeting.
SECTION 13.05. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) The holding of Securities shall be proved in the manner specified in
Section 1.04 and the appointment of any proxy shall be proved in the manner
specified in Section 1.04 or by having the signature of the Person executing the
proxy witnessed or guaranteed by any trust company, bank or banker deemed by the
Trustee to be satisfactory. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 1.04 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 13.02(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall appoint a temporary chairman. A permanent chairman and
a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in aggregate principal amount of the Outstanding
Securities of all series represented at the meeting.
(c) At any meeting each Holder of a Security of each series represented at
the meeting and each proxy shall be entitled to one vote for each $1,000
principal amount of the Outstanding Securities of such series held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security of a
series represented at the meeting or as a proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 13.02 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of all series represented at the meeting; and the meeting
may be held as so adjourned without further notice.
SECTION 13.06. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote on any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of that series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of that series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such notice was given as provided in Section 13.02 and, if
applicable, Section 13.04. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to
44
the Company and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.
------------------------
This Indenture may be executed in any number of counterparts, each of which
when 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.
MAGNUM HUNTER RESOURCES, INC.
By: ______________________________
Xxxx X. Xxxxx
President and Chief Executive Officer
Attest:
-----------------------
Name:
Title:
SUBSIDIARY GUARANTORS:
MAGNUM HUNTER PRODUCTION, INC.
By: ______________________________
Xxxx X. Xxxxx
Chief Executive Officer
Attest:
-----------------------
Name:
Title:
HUNTER GAS GATHERING, INC.
By: ______________________________
Xxxx X. Xxxxx
Chief Executive Officer
Attest:
-----------------------
Name:
Title:
45
GRUY PETROLEUM MANAGEMENT CO.
By: ______________________________
Xxxx X. Xxxxx
Chief Executive Officer
Attest:
-----------------------
Name:
Title:
BANK OF OKLAHOMA, N.A.
as Trustee
By: ______________________________
Attest:
-----------------------
Name:
Title:
00
XXXXX XX XXXXX )
) ss.
COUNTY OF DALLAS )
On the ___ day of _____, 2000, before me personally came ______, to me
known, who, being by me duly sworn, did depose and say that he is President and
Chief Executive Officer of Magnum Hunter Resources, Inc.,one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
Notary Public
STATE OF OKLAHOMA )
) ss.:
COUNTY OF ______ )
On the __ day of ______, 2000, before me personally came_____________, to
me known, who, being by me duly sworn, did depose and say that he is a _________
of Bank of Oklahoma, N.A., a national banking association, described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such seal; that it was
so affixed by authority of the Board of Directors of said corporation; and that
he signed his name thereto by like authority.
Notary Public
47
