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EXHIBIT 4.11
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SEITEL, INC.,
AS ISSUER,
AND
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
---------------------------------
INDENTURE
DATED AS OF ____________, ____
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SUBORDINATED DEBT SECURITIES
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SEITEL, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF ________________, ____
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SECTION OF
TRUST INDENTURE SECTION(S) OF
ACT OF 1939 INDENTURE
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Section 310 (a)(1)............................................................................... 7.10
(a)(2)............................................................................... 7.10
(a)(3)............................................................................... Not Applicable
(a)(4)............................................................................... Not Applicable
(a)(5)............................................................................... 7.10
(b).................................................................................. 7.08, 7.10
Section 311 (a).................................................................................. 7.11
(b).................................................................................. 7.11
(c).................................................................................. Not Applicable
Section 312 (a).................................................................................. 2.07
(b).................................................................................. 11.03
(c).................................................................................. 11.03
Section 313 (a).................................................................................. 7.06
(b).................................................................................. 7.06
(c).................................................................................. 7.06
(d).................................................................................. 7.06
Section 314 (a).................................................................................. 4.03, 4.04
(b).................................................................................. Not Applicable
(c)(1)............................................................................... 11.04
(c)(2)............................................................................... 11.04
(c)(3)............................................................................... Not Applicable
(d).................................................................................. Not Applicable
(e).................................................................................. 11.05
Section 315 (a).................................................................................. 7.01(b)
(b).................................................................................. 7.05
(c).................................................................................. 7.01(a)
(d).................................................................................. 7.01(c)
(d)(1)............................................................................... 7.01(c)(1)
(d)(2)............................................................................... 7.01(c)(2)
(d)(3)............................................................................... 7.01(c)(3)
(e).................................................................................. 6.11
Section 316 (a)(1)(A)............................................................................ 6.05
(a)(1)(B)............................................................................ 6.04
(a)(2)............................................................................... Not Applicable
(a)(last sentence)................................................................... 2.11
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SECTION OF
TRUST INDENTURE SECTION(S) OF
ACT OF 1939 INDENTURE
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(b).................................................................................. 6.07
Section 317 (a)(1)............................................................................... 6.08
(a)(2)............................................................................... 6.09
(b).................................................................................. 2.06
Section 318 (a).................................................................................. 11.01
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Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE......................................................1
SECTION 1.01 Definitions..............................................................................1
SECTION 1.02 Other Definitions........................................................................7
SECTION 1.03 Incorporation by Reference of Trust Indenture Act........................................7
SECTION 1.04 Rules of Construction....................................................................8
ARTICLE II THE SECURITIES..................................................................................8
SECTION 2.01 Amount Unlimited; Issuable in Series.....................................................8
SECTION 2.02 Denominations...........................................................................11
SECTION 2.03 Forms Generally.........................................................................11
SECTION 2.04 Execution, Authentication, Delivery and Dating..........................................12
SECTION 2.05 Registrar and Paying Agent..............................................................13
SECTION 2.06 Paying Agent to Hold Money in Trust.....................................................14
SECTION 2.07 Holder Lists............................................................................14
SECTION 2.08 Transfer and Exchange...................................................................15
SECTION 2.09 Replacement Securities..................................................................15
SECTION 2.10 Outstanding Securities..................................................................16
SECTION 2.11 Original Issue Discount and Treasury Securities.........................................16
SECTION 2.12 Temporary Securities....................................................................16
SECTION 2.13 Cancellation............................................................................16
SECTION 2.14 Payments; Defaulted Interest............................................................17
SECTION 2.15 Persons Deemed Owners...................................................................17
SECTION 2.16 Computation of Interest.................................................................18
SECTION 2.17 Global Securities; Book-Entry Provisions................................................18
ARTICLE III REDEMPTION.....................................................................................20
SECTION 3.01 Applicability of Article................................................................20
SECTION 3.02 Notice to the Trustee...................................................................20
SECTION 3.03 Selection of Securities To Be Redeemed..................................................20
SECTION 3.04 Notice of Redemption....................................................................21
SECTION 3.05 Effect of Notice of Redemption..........................................................22
SECTION 3.06 Deposit of Redemption Price.............................................................22
SECTION 3.07 Securities Redeemed or Purchased in Part................................................22
SECTION 3.08 Purchase of Securities..................................................................23
SECTION 3.09 Mandatory and Optional Sinking Funds....................................................23
SECTION 3.10 Satisfaction of Sinking Fund Payments with Securities...................................23
SECTION 3.11 Redemption of Securities for Sinking Fund...............................................23
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ARTICLE IV COVENANTS......................................................................................24
SECTION 4.01 Payment of Securities...................................................................24
SECTION 4.02 Maintenance of Office or Agency.........................................................25
SECTION 4.03 SEC Reports; Financial Statements.......................................................25
SECTION 4.04 Compliance Certificate..................................................................26
SECTION 4.05 Corporate Existence.....................................................................26
SECTION 4.06 Maintenance of Properties...............................................................26
SECTION 4.07 Payment of Taxes and Other Claims.......................................................27
SECTION 4.08 Waiver of Stay, Extension or Usury Laws.................................................27
SECTION 4.09 Additional Amounts......................................................................27
ARTICLE V SUCCESSORS.....................................................................................28
SECTION 5.01 Limitations on Mergers and Consolidations...............................................28
SECTION 5.02 Successor Person Substituted............................................................29
ARTICLE VI DEFAULTS AND REMEDIES..........................................................................29
SECTION 6.01 Events of Default.......................................................................29
SECTION 6.02 Acceleration............................................................................31
SECTION 6.03 Other Remedies..........................................................................31
SECTION 6.04 Waiver of Existing or Past Defaults.....................................................31
SECTION 6.05 Control by Majority.....................................................................32
SECTION 6.06 Limitations on Suits....................................................................32
SECTION 6.07 Rights of Holders to Receive Payment....................................................33
SECTION 6.08 Collection Suit by Trustee..............................................................33
SECTION 6.09 Trustee May File Proofs of Claim........................................................33
SECTION 6.10 Priorities..............................................................................34
SECTION 6.11 Undertaking for Costs...................................................................34
ARTICLE VII TRUSTEE........................................................................................34
SECTION 7.01 Duties of Trustee.......................................................................34
SECTION 7.02 Rights of Trustee.......................................................................36
SECTION 7.03 May Hold Securities.....................................................................36
SECTION 7.04 Trustee's Disclaimer....................................................................36
SECTION 7.05 Notice of Defaults......................................................................36
SECTION 7.06 Reports by Trustee to Holders...........................................................37
SECTION 7.07 Compensation and Indemnity..............................................................37
SECTION 7.08 Replacement of Trustee..................................................................38
SECTION 7.09 Successor Trustee by Merger, etc........................................................40
SECTION 7.10 Eligibility; Disqualification...........................................................40
SECTION 7.11 Preferential Collection of Claims Against Company.......................................40
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ARTICLE VIII DISCHARGE OF INDENTURE.........................................................................41
SECTION 8.01 Termination of Company's Obligations....................................................41
SECTION 8.02 Application of Trust Money..............................................................45
SECTION 8.03 Repayment to Company....................................................................45
SECTION 8.04 Reinstatement...........................................................................45
ARTICLE IX SUPPLEMENTAL INDENTURES AND AMENDMENTS.........................................................46
SECTION 9.01 Without Consent of Holders..............................................................46
SECTION 9.02 With Consent of Holders.................................................................47
SECTION 9.03 Compliance with Trust Indenture Act.....................................................49
SECTION 9.04 Revocation and Effect of Consents.......................................................49
SECTION 9.05 Notation on or Exchange of Securities...................................................50
SECTION 9.06 Trustee to Sign Amendments, etc.........................................................50
ARTICLE X SUBORDINATION..................................................................................50
SECTION 10.01 Securities Subordinated to Senior Indebtedness.........................................50
SECTION 10.02 No Payment on Securities in Certain Circumstances......................................51
SECTION 10.03 Securities Subordinated to Prior Payment of All Senior Indebtedness on
Dissolution, Liquidation or Reorganization.....................................................52
SECTION 10.04 Subrogation to Rights of Holders of Senior Indebtedness................................53
SECTION 10.05 Obligations of the Company Unconditional...............................................54
SECTION 10.06 Trustee Entitled to Assume Payments Not Prohibited in Absence of
Notice.........................................................................................54
SECTION 10.07 Application by Trustee of Amounts Deposited with It....................................54
SECTION 10.08 Subordination Rights Not Impaired by Acts or Omissions of the
Company or Holders of Senior Indebtedness......................................................55
SECTION 10.09 Trustee to Effectuate Subordination of Securities......................................55
SECTION 10.10 Right of Trustee to Hold Senior Indebtedness...........................................56
SECTION 10.11 Article X Not to Prevent Events of Default.............................................56
SECTION 10.12 No Fiduciary Duty of Trustee to Holders of Senior Indebtedness.........................56
SECTION 10.13 Article Applicable to Paying Agent.....................................................56
ARTICLE XI MISCELLANEOUS..................................................................................57
SECTION 11.01 Trust Indenture Act Controls...........................................................57
SECTION 11.02 Notices................................................................................57
SECTION 11.03 Communication by Holders with Other Holders............................................58
SECTION 11.04 Certificate and Opinion as to Conditions Precedent.....................................58
SECTION 11.05 Statements Required in Certificate or Opinion..........................................58
SECTION 11.06 Rules by Trustee and Agents............................................................59
SECTION 11.07 Legal Holidays.........................................................................59
SECTION 11.08 No Recourse Against Others.............................................................59
SECTION 11.09 Governing Law..........................................................................60
SECTION 11.10 No Adverse Interpretation of Other Agreements..........................................60
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SECTION 11.11 Successors.............................................................................60
SECTION 11.12 Severability...........................................................................60
SECTION 11.13 Counterpart Originals..................................................................60
SECTION 11.14 Table of Contents; Headings, etc.......................................................60
SECTION 11.15 Agent for Service of Process...........................................................60
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INDENTURE, dated as of , between Seitel, Inc., a
Delaware corporation (the "Company"), and The First National Bank of Chicago, a
national banking association, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's
unsecured subordinated debentures, notes or other evidences of indebtedness (the
"Securities") to be issued from time to time in one or more series as provided
in this Indenture:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Additional Amounts" means any additional amounts required by
the express terms of a Security or by or pursuant to a Board Resolution, under
circumstances specified therein or pursuant thereto, to be paid by the Company
with respect to certain taxes, assessments or other governmental charges imposed
on certain Holders and that are owing to such Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by, or under direct or indirect
common control with, such specified Person. For purposes of this definition,
"control" of a Person shall mean the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" shall have meanings correlative to the foregoing.
"Agent" means any Registrar or Paying Agent.
"Bankruptcy Law" means Title 11 of the United States Code or
any similar federal, state or foreign law for the relief of debtors.
"Board of Directors" means the Board of Directors of the
Company or any committee thereof duly authorized, with respect to any particular
matter, to act by or on behalf of the Board of Directors of the Company.
"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 any day that is not a Legal Holiday.
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"Capital Stock" of any Person means and includes any and all
shares, interests, rights to purchase, warrants or options (whether or not
currently exercisable), participations or other equivalents of or interests
(however designated) in the equity (which includes, but is not limited to,
common stock, preferred stock and partnership and joint venture interests) of
such Person (excluding any debt securities that are convertible into, or
exchangeable for, such equity).
"Capitalized Lease Obligation" of any Person means any
obligation of such Person to pay rent or other amounts under a lease of
property, real or personal, that is required to be capitalized for financial
reporting purposes in accordance with GAAP; and the amount of such obligation
shall be the capitalized amount thereof determined in accordance with GAAP.
"Common Equity" of any Person means and includes all Capital
Stock of such Person that is generally entitled to (i) vote in the election of
directors of such Person or (ii) if such Person is not a corporation, vote or
otherwise participate in the selection of the governing body, partners, managers
or others that will control the management and policies of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two Officers of
the Company, and delivered to the Trustee.
"Corporate Trust Office of the Trustee" shall be the address
specified in Section 11.02 and may be located at such other address as the
Trustee may give notice to the Company.
"Default" means any event, act or condition that is, or after
notice or the passage of time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in global form, the Person
specified pursuant to Section 2.01 hereof as the initial Depositary with respect
to the Securities of such series, until a successor shall have been appointed
and become such pursuant to the applicable provision of this Indenture, and
thereafter, "Depositary" shall mean or include such successor.
"Designated Senior Indebtedness," unless otherwise provided
with respect to the Securities of a series as contemplated by Section 2.01,
means any Senior Indebtedness that (i) in the instrument evidencing the same or
the assumption or guarantee thereof (or related documents to which the Company
is a party) is expressly designated as "Designated Senior Indebtedness" for
purposes of this Indenture and (ii) satisfies such other conditions as may be
provided with respect to the Securities of such series; provided that such
instruments or documents may place limitations
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and conditions on the right of such Senior Indebtedness to exercise the rights
of Designated Senior Indebtedness.
"Disqualified Capital Stock" means, when used with respect to
the Securities of any series, (a) except as set forth in (b), with respect to
any Person, Capital Stock of such Person that, by its terms or by the terms of
any security into which it is convertible, exercisable or exchangeable, is, or
upon the happening of an event or the passage of time would be, required to be
redeemed or repurchased (including at the option of the holder thereof) by such
Person or any Subsidiary of such Person, in whole or in part, on or prior to the
Stated Maturity of the Securities of such series, and (b) with respect to any
Subsidiary of such Person (including with respect to any Subsidiary of the
Company), any Capital Stock other than any Common Equity with no preference,
privileges, or redemption or repayment provisions.
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debt.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor statute.
"GAAP" means generally accepted accounting principles in the
United States set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant
segment of the accounting profession of the United States, as in effect from
time to time.
"Global Security" of any series means a Security of that
series that is issued in global form in the name of the Depositary with respect
thereto or its nominee.
"Government Obligations" means, with respect to a series of
Securities, direct noncallable obligations of the government that issues the
currency in which the Securities of the series are payable for the payment of
which the full faith and credit of such government is pledged, or noncallable
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of such government, the payment of which is fully and
unconditionally guaranteed as a full faith and credit obligation by such
government.
"Holder" means a Person in whose name a Security is
registered.
"Indebtedness" of any Person at any date means, without
duplication, (a) all indebtedness or obligations of such Person for borrowed
money (whether or not the recourse of the lender is to the whole of the assets
of such Person or only to a portion thereof), (b) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments, (c) all
obligations of such Person in respect of letters of credit or other similar
instruments (or reimbursement obligations with respect thereto), other than
standby letters of credit and bid or performance bonds
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issued by such Person in the ordinary course of business, to the extent not
drawn or, to the extent drawn, if such drawing is reimbursed not later than 30
Business Days following demand for reimbursement, (d) all obligations of such
Person to pay the deferred and unpaid purchase price of property or services,
except trade payables and accrued expenses incurred in the ordinary course of
business, (e) all Capitalized Lease Obligations of such Person, (f) all
Indebtedness of others secured by a lien on any asset of such Person, whether or
not such Indebtedness is assumed by such Person, and (g) all Indebtedness of
others guaranteed by such Person to the extent of such guarantee.
"Indenture" means this instrument as originally executed or as
it may from time to time be amended or supplemented by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and includes the terms of particular series of Securities established as
contemplated by Section 2.01.
"interest" means, with respect to an Original Issue Discount
Security that by its terms bears interest only after Maturity, interest payable
after Maturity.
"Interest Payment Date," when used with respect to any
Security, has the meaning assigned to such term in the Security as contemplated
by Section 2.01.
"Issue Date" means, with respect to Securities of a series,
the date on which the Securities of such series are originally issued under this
Indenture.
"Junior security" of a Person means, when used with respect to
the Securities of any series, any Qualified Capital Stock of such Person or any
Indebtedness of such Person that is subordinated in right of payment to the
Securities of such series and has no scheduled installment of principal due, by
redemption, sinking fund payment or otherwise, on or prior to the Stated
Maturity of the Securities of such series.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in any of The City of New York, New York, Houston, Texas or
a Place of Payment are authorized or obligated by law, regulation or executive
order to remain closed.
"Maturity" means, with respect to any Security, the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity
thereof, or by declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the President, any
Vice Chairman of the Board, any Vice President, the chief financial officer, the
Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Assistant Secretary of a Person.
"Officers' Certificate" means a certificate signed by two
Officers of a Person, one of whom must be the Person's chief executive officer,
chief financial officer or chief accounting officer.
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"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. Such counsel may be an employee of or
counsel to the Company or 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 upon a declaration of acceleration of the Maturity thereof pursuant to
Section 6.02.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, incorporated or unincorporated
association, joint stock company, trust, unincorporated organization or
government or other agency or political subdivision thereof or other entity of
any kind.
"Place of Payment" means, with respect to the Securities of
any series, the place or places where, subject to the provisions of Section
4.02, the principal of, premium (if any) and interest on the Securities of that
series are payable as specified in accordance with Section 2.01.
"Qualified Capital Stock" means any Capital Stock of the
Company that is not Disqualified Capital Stock.
"Redemption Date" means, with respect to any Security to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means, with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture.
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning stated in the preamble of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Custodian" means, with respect to Securities of a
series issued in global form, the Trustee for Securities of such series, acting
in its capacity as custodian with respect to the Securities of such series, or
any successor entity thereto.
"Senior Indebtedness" of the Company, unless otherwise
provided with respect to the Securities of series as contemplated by Section
2.10, means, (i) all Indebtedness of the Company, whether currently outstanding
or hereafter issued, unless, by the terms of the instrument creating or
evidencing such Indebtedness, it is provided that such Indebtedness is not
superior in right of payment to the Securities or to other Indebtedness which is
pari passu with or subordinated to the Securities, and (ii) any modifications,
refunding, deferrals, renewals or extensions of any such Indebtedness or
securities, notes or other evidences of Indebtedness issued in exchange for such
Indebtedness; provided that in no event shall "Senior Indebtedness" include (i)
Indebtedness of the Company for borrowed money owed or owing to any Subsidiary
of the Company or any officer,
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director or employee of the Company or any Subsidiary of the Company or (ii)
Indebtedness of the Company issued under the indenture to be entered into
between the Company and The First National Bank of Chicago, as trustee, relating
to junior subordinated debentures of the Company.
"Significant Subsidiary" means any "significant subsidiary" of
the Company, as such term is defined in Regulation S-X, Title 17, Code of U.S.
Federal Regulations Part 210, as in effect on the date hereof.
"Stated Maturity" means, when used with respect to any
Security or any installment of principal thereof or premium or interest thereon,
the date specified in such Security as the fixed date on which the principal of
such Security or such installment of principal or premium or interest is due and
payable.
"Subsidiary" means, as to any Person, any corporation,
association or other business entity in which such Person or one or more of its
Subsidiaries or such Person and one or more of its Subsidiaries own more than
50% of the total combined voting power of all Common Equity, and any partnership
or joint venture if more than a 50% interest in the profits or capital thereof
is owned by such Person or one or more of its Subsidiaries or such Person and
one or more of its Subsidiaries (unless such partnership or joint venture can
and does ordinarily take major business actions without the prior approval of
such Person or one or more of its Subsidiaries).
"TIA" means the Trust Indenture Act of 1939, as amended (15
U.S.C. Sections 77aaa- 77bbbb), as in effect on the date hereof.
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters.
"Trustee" means the Person named as such above until a
successor replaces it in accordance with the applicable provisions of this
Indenture, and thereafter "Trustee" means each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of any series means the Trustee with respect
to Securities of that series.
"United States" means the United States of America (including
the States and the District of Columbia) and its territories, its possessions
(including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands) and other areas subject to its
jurisdiction.
"United States Alien" means any Person who, for United States
federal income tax purposes, is a foreign corporation, a nonresident alien
individual, a nonresident alien or foreign fiduciary of an estate or trust, or a
foreign partnership.
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"U.S. Government Obligations" means Government Obligations
with respect to Securities payable in Dollars.
SECTION 1.02 Other Definitions.
Defined
Term in Section
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"Bankruptcy Custodian"............................................... 6.01
"Conversion Event"................................................... 6.01
"covenant defeasance"................................................ 8.01
"Event of Default"................................................... 6.01
"legal defeasance"................................................... 8.01
"mandatory sinking fund payment"..................................... 3.09
"optional sinking fund payment"...................................... 3.09
"Paying Agent"....................................................... 2.05
"Payment Default".................................................... 10.02
"Payment Blocking Notice"............................................ 10.02
"Registrar".......................................................... 2.05
"Successor".......................................................... 5.01
SECTION 1.03 Incorporation by Reference of Trust Indenture
Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
All terms used in this Indenture that are defined by the TIA,
defined by a TIA reference to another statute or defined by an SEC rule under
the TIA have the meanings so assigned to them.
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SECTION 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) all references in this Indenture to Articles and Sections
are references to the corresponding Articles and Sections in and of
this Indenture.
ARTICLE II
THE SECURITIES
SECTION 2.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that 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, or
determined in the manner provided, in an Officers' Certificate or in a Company
Order, or established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from the Securities of all
other series);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.08, 2.09, 2.12, 2.17,
3.07 or 9.05);
(3) whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the
series are to be issuable in permanent global form, as Global
Securities or otherwise, and, if so, whether beneficial owners of
interests in
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any such Global Security may exchange such interests for Securities of
such series and of like tenor of any authorized form and denomination
and the circumstances under which any such exchanges may occur, if
other than in the manner provided in Section 2.17, and the initial
Depositary and Security Custodian, if any, for any Global Security or
Securities of such series;
(4) (i) if other than provided herein, the Person to whom any
interest on Securities of the series shall be payable, and (ii) the
manner in which any interest payable on a temporary Global Security on
any Interest Payment Date will be paid if other than in the manner
provided in Section 2.14;
(5) the date or dates on which the principal of (and premium,
if any, on) the Securities of the series is payable or the method of
determination thereof;
(6) the rate or rates, or the method of determination thereof,
at which the Securities of the series shall bear interest, if any,
whether and under what circumstances Additional Amounts with respect to
such Securities shall be payable, the date or dates from which any
interest shall accrue, the Interest Payment Dates on which any such
interest shall be payable and the record date for the interest payable
on any Securities on any Interest Payment Date;
(7) the place or places where, subject to the provisions of
Section 4.02, the principal of, premium (if any) and interest on and
any Additional Amounts with respect to the Securities of the series
shall be payable;
(8) the period or periods within which, the price or prices
(whether denominated in cash, securities or otherwise) at which and the
terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company, if the
Company is to have that option, and the manner in which the Company may
exercise any such option, if different from those set forth herein;
(9) the obligation, if any, of the Company to redeem, purchase
or repay Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms
and conditions upon which Securities of the series shall be redeemed,
purchased or repaid in whole or in part pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denomination in which any Securities of that
series shall be issuable;
(11) the form, including Capital Stock, other debt securities
(including Securities), warrants, other equity securities, or any other
securities or property of the Company or any
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other Person in which payment of the principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities
of the series shall be payable;
(12) if the amount of payments of principal of, premium (if
any) and interest on and any Additional Amounts with respect to the
Securities of the series may be determined with reference to any
commodities, currencies or indices, values, rates or prices or any
other index or formula, the manner in which such amounts shall be
determined;
(13) if other than the entire principal amount thereof, the
portion of the principal amount of Securities of the series that shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 6.02;
(14) any additional means of satisfaction and discharge of
this Indenture and any additional conditions or limitations to
discharge with respect to Securities of the series pursuant to Article
VIII or any modifications of or deletions from such conditions or
limitations;
(15) any deletions or modifications of or additions to the
Events of Default set forth in Section 6.01 or covenants of the Company
set forth in Article IV pertaining to the Securities of the series;
(16) any restrictions or other provisions with respect to the
transfer or exchange of Securities of the series, which may amend,
supplement, modify or supersede those contained in this Article II;
(17) if the Securities of the series are to be convertible
into or exchangeable for Capital Stock, other debt securities
(including Securities), warrants, other equity securities, or any other
securities or property of the Company or any other Person, at the
option of the Company or the Holder or upon the occurrence of any
condition or event, the terms and conditions for such conversion or
exchange;
(18) any modifications to, or qualifications contemplated by,
the definition of "Designated Senior Indebtedness," any modifications
to the definition of "Senior Indebtedness" or any modifications to
Article X or the other provisions regarding subordination with respect
to the Securities of such series; and
(19) any other terms of the series (which terms shall not be
prohibited by 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
2.03) set forth, or determined in the manner provided, in
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the Officers' Certificate or Company Order referred to above or in any such
indenture supplemental hereto.
If any of the terms of the series are established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action, together with such Board Resolution, shall be set forth in an Officers'
Certificate or 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 or Company Order setting forth the terms of the series.
The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article X.
SECTION 2.02 Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 2.01. In the
absence of any such provisions with respect to the Securities of any series, the
Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiples thereof.
SECTION 2.03 Forms Generally.
The Securities of each series shall be in fully registered
form and in substantially such form or forms (including temporary or permanent
global form) established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto. The Securities may have notations, legends or
endorsements required by law, securities exchange rules, the Company's
certificate of incorporation or other similar governing documents, agreements to
which the Company is subject, if any, or usage (provided that any such notation,
legend or endorsement is in a form acceptable to the Company). A copy of the
Board Resolution establishing the form or forms of Securities of any series
shall be delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 2.04 for the authentication and delivery of such
Securities.
The definitive Securities of each series shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the Officers executing such Securities, as
evidenced by their execution thereof.
The Trustee's certificate of authentication shall be in
substantially the following form:
"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
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THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
-----------------------------
Authorized Signatory".
SECTION 2.04 Execution, Authentication, Delivery and Dating.
At least one Officer of the Company shall sign the Securities
of each series on behalf of the Company by manual or facsimile signature.
If an Officer of the Company whose signature is on a Security
no longer holds that office at the time the Security is authenticated, the
Security shall be valid nevertheless.
A Security shall not be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose until authenticated by the
manual signature of an authorized signatory of the Trustee, which signature
shall be conclusive evidence that the Security has been authenticated under this
Indenture.
The Trustee shall authenticate and deliver Securities of a
series for original issue upon a Company Order for the authentication and
delivery of such Securities or pursuant to such procedures reasonably acceptable
to the Trustee as may be specified from time to time by Company Order. Such
order shall specify the amount of the Securities of such series to be
authenticated, the date on which the original issue of Securities of such series
is to be authenticated, the name or names of the initial Holder or Holders and
any other terms of the Securities of such series not otherwise determined. If
provided for in such procedures, such Company Order may authorize (1)
authentication and delivery of Securities of such series for original issue from
time to time, with certain terms (including, without limitation, the Maturity
date or dates, original issue date or dates and interest rate or rates) that
differ from Security to Security and (2) may authorize authentication and
delivery pursuant to oral or electronic instructions from the Company or its
duly authorized agent, which instructions shall be promptly confirmed in
writing.
If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions or any other method
permitted by Section 2.01, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive (in addition to the Company Order
referred to above and the other documents required by Section 11.04), and
(subject to Section 7.01) shall be fully protected in relying upon,
(a) an Officers' Certificate setting forth the Board
Resolution and, if applicable, an appropriate record of any action taken
pursuant thereto, as contemplated by the last paragraph of Section 2.01; and
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(b) an Opinion of Counsel to the effect that:
(i) the form of such Securities has been established in
conformity with the provisions of this Indenture;
(ii) the terms of such Securities have been established in
conformity with the provisions of this Indenture; and
(iii) such 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 valid
and binding obligations of the Company, enforceable against the Company
in accordance with their terms, except as the enforceability thereof
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws in effect from
time to time affecting the rights of creditors generally, and the
application of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
If all the Securities of any series are not to be issued at one time, it shall
not be necessary to deliver an Officers' Certificate and Opinion of Counsel at
the time of issuance of each such Security, but such Officers' Certificate and
Opinion of Counsel shall be delivered at or before the time of issuance of the
first Security of the series to be issued.
The Trustee shall not be required to authenticate such
Securities if the issuance of such Securities pursuant to this Indenture would
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner not reasonably acceptable to the
Trustee.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company or an Affiliate of the Company.
Each Security shall be dated the date of its authentication.
SECTION 2.05 Registrar and Paying Agent.
The Company shall maintain an office or agency for each series
of Securities where Securities of such series may be presented for registration
of transfer or exchange ("Registrar") and an office or agency where Securities
of such series may be presented for payment ("Paying Agent"). The Registrar
shall keep a register of the Securities of each series and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The
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term "Registrar" includes any co-registrar and the term "Paying Agent" includes
any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Registrar or Paying Agent not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. The Company may change any Paying Agent or Registrar
without notice to any Holder. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The
Company or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and
Paying Agent.
SECTION 2.06 Paying Agent to Hold Money in Trust.
With respect to each series of Securities, the Company shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will hold in trust for the benefit of Holders of such series or the
Trustee all money held by the Paying Agent for the payment of principal of,
premium, if any, or interest on or any Additional Amounts with respect to
Securities of such series and will notify the Trustee of any default by the
Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee
and to account for any funds disbursed. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed. Upon payment over to the Trustee and upon accounting for any
funds disbursed, the Paying Agent (if other than the Company or a Subsidiary of
the Company) shall have no further liability for the money. If the Company or a
Subsidiary of the Company acts as Paying Agent with respect to a series of
Securities, it shall segregate and hold in a separate trust fund for the benefit
of the Holders of such series all money held by it as Paying Agent. Each Paying
Agent shall otherwise comply with TIA Section 317(b).
SECTION 2.07 Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders of each series of Securities and shall otherwise comply
with TIA Section 312(a). If the Trustee is not the Registrar with respect to a
series of Securities, the Company shall furnish to the Trustee at least seven
Business Days before each Interest Payment Date with respect to such series of
Securities, and at such other times as the Trustee may request in writing, a
list in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Holders of such series, and the Company shall
otherwise comply with TIA Section 312(a).
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SECTION 2.08 Transfer and Exchange.
Except as set forth in Section 2.17 or as may be provided
pursuant to Section 2.01, when Securities of any series are presented to the
Registrar with the request to register the transfer of such Securities or to
exchange such Securities for an equal principal amount of Securities of the same
series of like tenor and of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested if its requirements and
the requirements of this Indenture for such transactions are met; provided,
however, that the Securities presented or surrendered for registration of
transfer or exchange shall be duly endorsed or accompanied by a written
instruction of transfer in form reasonably satisfactory to the Registrar duly
executed by the Holder thereof or by his attorney, duly authorized in writing,
on which instruction the Registrar can rely.
To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Securities at the
Registrar's written request and submission of the Securities (other than Global
Securities). No service charge shall be made to a Holder for any registration of
transfer or exchange (except as otherwise expressly permitted herein), but the
Company may require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than such
transfer tax or similar governmental charge payable upon exchanges pursuant to
Section 2.12, 3.07 or 9.05). The Trustee shall authenticate Securities in
accordance with the provisions of Section 2.04. Notwithstanding any other
provisions of this Indenture to the contrary, the Company shall not be required
to register the transfer or exchange of (a) any Security selected for redemption
in whole or in part pursuant to Article III, except the unredeemed portion of
any Security being redeemed in part or (b) any Security during the period
beginning 15 Business Days before the mailing of notice of any offer to
repurchase Securities of the series required pursuant to the terms thereof or of
redemption of Securities of a series to be redeemed and ending at the close of
business on the date of mailing.
SECTION 2.09 Replacement Securities.
If any mutilated Security of a series is surrendered to the
Trustee, or if the Holder of a Security of a series claims that the Security has
been destroyed, lost or stolen and the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of such Security, the
Company shall issue and the Trustee shall authenticate a replacement Security of
the same series if the Trustee's requirements are met. If 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. If required by the Trustee or the Company, such Holder must
furnish an indemnity bond that is sufficient in the judgment of the Trustee and
the Company to protect the Company, the Trustee, any Agent or any authenticating
agent from any loss that any of them may suffer if a Security is replaced. The
Company and the Trustee may charge a Holder for their expenses in replacing a
Security.
Every replacement Security is an additional obligation of the
Company.
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SECTION 2.10 Outstanding Securities.
The Securities of a series outstanding at any time are all the
Securities of that series authenticated by the Trustee except for those canceled
by it, those delivered to it for cancellation, those reductions in the interest
in a Global Security effected by the Trustee hereunder and those described in
this Section 2.10 as not outstanding.
If a Security is replaced pursuant to Section 2.09, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid
under Section 4.01, it ceases to be outstanding and interest on it ceases to
accrue.
A Security does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Security.
SECTION 2.11 Original Issue Discount and Treasury Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, amendment, supplement,
waiver or consent, (a) the principal amount of an Original Issue Discount
Security shall be the principal amount thereof that would be due and payable as
of the date of such determination upon acceleration of the Maturity thereof
pursuant to Section 6.02 and (b) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded, except that, for the purpose of determining
whether the Trustee shall be protected in relying upon any such direction,
amendment, supplement, waiver or consent, only Securities with respect to which
the Trustee has received written notice that they are so owned shall be so
disregarded.
SECTION 2.12 Temporary Securities.
Until definitive Securities of any series are ready for
delivery, the Company may prepare and the Trustee shall authenticate temporary
Securities. Temporary Securities shall be substantially in the form of
definitive Securities, but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities. Until so exchanged, the temporary Securities
shall in all respects be entitled to the same benefits under this Indenture as
definitive Securities.
SECTION 2.13 Cancellation.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for
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registration of transfer, exchange, payment or redemption or for credit against
any sinking fund payment. The Trustee shall cancel all Securities surrendered
for registration of transfer, exchange, payment, redemption, replacement or
cancellation or for credit against any sinking fund. Unless the Company shall
direct in writing that canceled Securities be returned to it, after written
notice to the Company all canceled Securities held by the Trustee shall be
disposed of in accordance with the usual disposal procedures of the Trustee, and
the Trustee shall maintain a record of their disposal. The Company may not issue
new Securities to replace Securities that have been paid or that have been
delivered to the Trustee for cancellation.
SECTION 2.14 Payments; Defaulted Interest.
Unless otherwise provided as contemplated by Section 2.01 with
respect to Securities of any series, interest (except defaulted interest) on any
Security that is payable, and is punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Persons who are registered Holders of
that Security at the close of business on the record date next preceding such
Interest Payment Date. Unless otherwise provided with respect to the Securities
of any series, the Company will pay the principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities in
Dollars. The Company may, however, pay such amounts (1) by wire transfer with
respect to Global Securities or (2) by check payable in such money mailed to a
Holder's registered address with respect to any Securities.
If the Company defaults in a payment of interest on the
Securities of any series, it shall pay the defaulted interest in any lawful
manner plus, to the extent lawful, interest on the defaulted interest, in each
case at the rate provided in the Securities of such series and in Section 4.01.
The Company may pay the defaulted interest to the Persons who are Holders on a
subsequent special record date. At least 15 days before any special record date
selected by the Company, the Company (or the Trustee, in the name of and at the
expense of the Company upon 20 days' prior written notice from the Company
setting forth such record date and the interest amount to be paid) shall mail to
Holders of any such series of Securities a notice that states the special record
date, the related payment date and the amount of such interest to be paid.
SECTION 2.15 Persons Deemed Owners.
The Company, the Trustee, any Agent and any authenticating
agent may treat the Person in whose name any Security is registered as the owner
of such Security for the purpose of receiving payments of principal of, premium
(if any) or interest on, or any Additional Amounts with respect to such Security
and for all other purposes. None of the Company, the Trustee, any Agent or any
authenticating agent shall be affected by any notice to the contrary.
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SECTION 2.16 Computation of Interest.
Except as otherwise specified as contemplated by Section 2.01
for Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year comprising twelve 30-day months.
SECTION 2.17 Global Securities; Book-Entry Provisions.
If Securities of a series are issuable in global form as a
Global Security, as contemplated by Section 2.01, then, notwithstanding clause
(10) of Section 2.01 and the provisions of Section 2.02, any such Global
Security shall represent such of the outstanding Securities of such series as
shall be specified therein and may provide that it shall represent the aggregate
amount of outstanding Securities from time to time endorsed thereon and that the
aggregate amount of outstanding Securities represented thereby may from time to
time be reduced to reflect exchanges or redemptions. Any endorsement of a Global
Security to reflect the amount, or any increase or decrease in the amount, of
outstanding Securities represented thereby shall be made by the Trustee in such
manner and upon instructions given by such Person or Persons as shall be
specified in such Security or in a Company Order to be delivered to the Trustee
pursuant to Section 2.04. Subject to the provisions of Section 2.04 and, if
applicable, Section 2.12, the Trustee shall deliver and redeliver any Security
in permanent global form in the manner and upon instructions given by the Person
or Persons specified in such Security or in the applicable Company Order. With
respect to the Securities of any series that are represented by a Global
Security, the Company authorizes the execution and delivery by the Trustee of a
letter of representations or other similar agreement or instrument in the form
customarily provided for by the Depositary appointed with respect to such Global
Security. Any Global Security may be deposited with the Depositary or its
nominee, or may remain in the custody of the Security Custodian therefor
pursuant to a FAST Balance Certificate Agreement or similar agreement between
the Trustee and the Depositary. If a Company Order has been, or simultaneously
is, delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but need
not comply with Section 11.05 and need not be accompanied by an Opinion of
Counsel.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary, or the Security Custodian as
its custodian, or under such Global Security, and the Depositary may be treated
by the Company, the Security Custodian and any agent of the Company or the
Trustee as the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, (i) the registered holder of a Global
Security of any series may grant proxies and otherwise authorize any Person,
including Agent Members and Persons that may hold interests through Agent
Members, to take any action that a Holder of such series is entitled to take
under this Indenture or the Securities of such series and (ii) nothing herein
shall prevent the Company, the Security Custodian or any agent of the Company or
the Security Custodian, from giving effect to any written certification, proxy
or other authorization furnished by the Depositary or shall impair, as
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between the Depositary and its Agent Members, the operation of customary
practices governing the exercise of the rights of a beneficial owner of any
Security.
Notwithstanding Section 2.08, and except as otherwise provided
pursuant to Section 2.01, transfers of a Global Security shall be limited to
transfers of such Global Security in whole, but not in part, to the Depositary,
its successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and procedures
of the Depositary. Securities of any series shall be transferred to all
beneficial owners of a Global Security of such series in exchange for their
beneficial interests in that Global Security if, and only if, either (1) the
Depositary notifies the Company that it is unwilling or unable to continue as
Depositary for the Global Security of such series and a successor Depositary is
not appointed by the Company within 90 days of such notice, (2) an Event of
Default has occurred with respect to such series and is continuing and the
Registrar has received a request from the Depositary to issue Securities of such
series in lieu of all or a portion of that Global Security (in which case the
Company shall deliver Securities of such series within 30 days of such request)
or (3) the Company determines not to have the Securities of such series
represented by a Global Security.
In connection with any transfer of a portion of the beneficial
interest in a Global Security of any series to beneficial owners pursuant to
this Section 2.17, the Registrar shall reflect on its books and records the date
and a decrease in the principal amount of the Global Security of that series in
an amount equal to the principal amount of the beneficial interest in the Global
Security of that series to be transferred, and the Company shall execute, and
the Trustee upon receipt of a Company Order for the authentication and delivery
of Securities of that series shall authenticate and deliver, one or more
Securities of the same series of like tenor and amount.
In connection with the transfer of all the beneficial
interests in a Global Security of any series to beneficial owners pursuant to
this Section 2.17, the Global Security shall be deemed to be surrendered to the
Trustee for cancellation, and the Company shall execute, and the Trustee shall
authenticate and deliver, to each beneficial owner identified by the Depositary
in exchange for its beneficial interest in the Global Security, an equal
aggregate principal amount of Securities of that series of authorized
denominations.
Neither the Company nor the Trustee will have any
responsibility or liability for any aspect of the records relating to, or
payments made on account of, Securities of any series by the Depositary, or for
maintaining, supervising or reviewing any records of the Depositary relating to
such Securities. Neither the Company nor the Trustee shall be liable for any
delay by the related Global Security Holder or the Depositary in identifying the
beneficial owners, and each such Person may conclusively rely on, and shall be
protected in relying on, instructions from such Global Security Holder or the
Depositary for all purposes (including with respect to the registration and
delivery, and the respective principal amounts, of the Securities to be issued).
Notwithstanding the provisions of Sections 2.03 and 2.14,
unless otherwise specified as contemplated by Section 2.01 with respect to
Securities of any series, payment of principal of and
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premium (if any) and interest on and any Additional Amounts with respect to any
Global Security shall be made to the Person or Persons specified therein.
ARTICLE III
REDEMPTION
SECTION 3.01 Applicability of Article.
Securities of any series that are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 2.01 for Securities of any
series) in accordance with this Article III.
SECTION 3.02 Notice to the Trustee.
If the Company elects to redeem Securities of any series
pursuant to this Indenture, it shall notify the Trustee of the Redemption Date
and principal amount of Securities of such series to be redeemed. The Company
shall so notify the Trustee at least 45 days before the Redemption Date (unless
a shorter notice shall be satisfactory to the Trustee) by delivering to the
Trustee an Officers' Certificate stating that such redemption will comply with
the provisions of this Indenture and of the Securities of such series. Any such
notice may be canceled at any time prior to the mailing of such notice of such
redemption to any Holder of the Securities of such series and shall thereupon be
void and of no effect.
SECTION 3.03 Selection of Securities To Be Redeemed.
If less than all of the Securities of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the outstanding
Securities of such series not previously called for redemption, either pro rata,
by lot or by such other method as the Trustee shall deem fair and appropriate.
Such redemption may provide for the selection for redemption of portions (equal
to the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities of such series
of a denomination larger than the minimum authorized denomination for Securities
of that series or of the principal amount of Global Securities of such series.
The Trustee shall promptly notify the Company and the
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities of any series
shall relate, in the case of any of the Securities
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redeemed or to be redeemed only in part, to the portion of the principal amount
thereof which has been or is to be redeemed.
SECTION 3.04 Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities of a series to be redeemed, at the
address of such Holder appearing in the register of Securities for such series
maintained by the Registrar.
All notices of redemption shall identify the Securities to be
redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) that, unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue
on and after the Redemption Date, and the only remaining right of the
Holders of such Securities is to receive payment of the Redemption
Price plus accrued interest on and any Additional Amounts with respect
to such Securities upon surrender to the Paying Agent of the Securities
redeemed;
(4) if any Security is to be redeemed in part, the portion of
the principal amount thereof to be redeemed and that on and after the
Redemption Date, upon surrender for cancellation of such Security to
the Paying Agent, a new Security or Securities in the aggregate
principal amount equal to the unredeemed portion thereof will be issued
without charge to the Holder;
(5) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price plus accrued
interest on and any Additional Amounts with respect to such Securities
and the name and address of the Paying Agent;
(6) that the redemption is for a sinking or analogous fund, if
such is the case; and
(7) the CUSIP number, if any, relating to such Securities.
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
written request, by the Trustee in the name and at the expense of the Company.
If at the time notice of redemption shall be given the Company
shall not have deposited with a Paying Agent and/or irrevocably directed the
Trustee or a Paying Agent to apply, from money held by it available to be used
for the redemption of Securities that are to be redeemed,
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an amount in cash sufficient to redeem all of the Securities called for
redemption, including accrued interest to the Redemption Date, such notice shall
state that it is subject to the receipt of the redemption monies by the Trustee
or a Paying Agent on or before the Redemption Date and such notice shall be of
no effect unless such monies are so received before such date.
SECTION 3.05 Effect of Notice of Redemption.
Once notice of redemption is mailed, subject to the last
paragraph of Section 3.04, Securities called for redemption become due and
payable on the Redemption Date and at the Redemption Price. Upon surrender to
the Paying Agent, such Securities called for redemption shall be paid at the
Redemption Price plus accrued interest on and any Additional Amounts with
respect to such Securities, but interest installments whose maturity is on or
prior to such Redemption Date will be payable on the relevant Interest Payment
Dates to the Holders of record at the close of business on the relevant record
dates specified pursuant to Section 2.01.
SECTION 3.06 Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or the Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 2.06) an amount
of money in same day funds 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, the Securities or
portions thereof which are to be redeemed on that date, other than Securities or
portions thereof called for redemption on that date which have been delivered by
the Company to the Trustee for cancellation.
If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such Redemption Price, plus
accrued interest on and any Additional Amounts with respect to such Securities,
interest on the Securities to be redeemed will cease to accrue on and after the
applicable Redemption Date, whether or not such Securities are presented for
payment, and the Holders of such Securities shall have no further rights with
respect to such Securities except for the right to receive the Redemption Price,
plus accrued interest on and any Additional Amounts with respect to such
Securities, upon surrender of such Securities. If any Security called for
redemption shall not be so paid upon surrender thereof for redemption, the
principal of and premium, if any, any Additional Amounts, and accrued interest
thereon, to the extent lawful, shall, until paid, bear interest from the
Redemption Date at the rate specified pursuant to Section 2.01 or provided in
the Securities or, in the case of Original Issue Discount Securities, such
Securities' initial yield to Maturity.
SECTION 3.07 Securities Redeemed or Purchased in Part.
Upon surrender to the Paying Agent of a Security of any series
to be redeemed in part, 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 series and of any authorized
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denomination as requested by such Holder in aggregate principal amount equal to,
and in exchange for, the unredeemed portion of the principal of the Security so
surrendered that is not redeemed.
SECTION 3.08 Purchase of Securities.
Unless otherwise specified as contemplated by Section 2.01,
the Company and any Affiliate of the Company may at any time purchase or
otherwise acquire Securities of any series in the open market or by private
agreement. Such acquisition shall not operate as or be deemed for any purpose to
be a redemption of the indebtedness represented by such Securities. Any
Securities purchased or acquired by the Company may be delivered to the Trustee
for cancellation and, upon such cancellation, the indebtedness represented
thereby shall be deemed to be satisfied. Section 2.13 shall apply to all
Securities so delivered.
SECTION 3.09 Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment," and any payment in excess of such minimum amount provided
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." Unless otherwise provided by the terms of
Securities of any series, the cash amount of any sinking fund payment may be
subject to reduction as provided in Section 3.10. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series and by this Article III.
SECTION 3.10 Satisfaction of Sinking Fund Payments with
Securities.
The Company may deliver outstanding Securities of a series
(other than any previously called for redemption) and may apply as a credit
Securities of a series that have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such series of Securities; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 3.11 Redemption of Securities for Sinking Fund.
Not less than 45 days prior (unless a shorter period shall be
satisfactory to the Trustee) to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee a Company Order specifying
the amount of the next ensuing sinking fund payment for that series pursuant to
the terms of that series, the portion thereof, if any, that is to be satisfied
by
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payment of cash and the portion thereof, if any, that is to be satisfied by
delivery of or by crediting Securities of that series pursuant to Section 3.10
and will also deliver to the Trustee any Securities to be so delivered. Failure
of the Company to deliver timely such Company Order and Securities specified in
this paragraph shall not constitute a default but shall constitute the election
of the Company (i) that the mandatory sinking fund payment for such series due
on the next succeeding sinking fund payment date shall be paid entirely in cash
without the option to deliver or credit Securities of such series in respect
thereof and (ii) that the Company will make no optional sinking fund payment
with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $100,000 or a lesser sum if the Company shall so request with
respect to the Securities of any particular series, such cash shall be applied
on the next succeeding sinking fund payment date to the redemption of Securities
of such series at the sinking fund redemption price together with accrued
interest to the date fixed for redemption. If such amount shall be $100,000 or
less and the Company makes no such request, then it shall be carried over until
a sum in excess of $100,000 is available. Not less than 30 days before each such
sinking fund payment date, the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in Section
3.03 and cause notice of the redemption thereof to be given in the name of and
at the expense of the Company in the manner provided in Section 3.04. Such
notice having been duly given, the redemption of such Securities shall be made
upon the terms and in the manner stated in Sections 3.05, 3.06 and 3.07.
ARTICLE IV
COVENANTS
SECTION 4.01 Payment of Securities.
The Company shall pay the principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities of each
series on the dates and in the manner provided in the Securities of such series
and in this Indenture. Principal, premium, interest and any Additional Amounts
shall be considered paid on the date due if the Paying Agent, other than the
Company or a Subsidiary of the Company, holds on that date money deposited by
the Company designated for and sufficient to pay all principal, premium,
interest and any Additional Amounts then due.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal of and
premium (if any) on Securities of any series, at a rate equal to the then
applicable interest rate on the Securities of that series to the extent lawful;
and it shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest and any Additional
Amount (without regard to any applicable grace period) on Securities of any
series at the same rate to the extent lawful.
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SECTION 4.02 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency (which may be an office of the Trustee,
the Registrar or the Paying Agent) where Securities of that series may be
presented for registration of transfer or exchange, where Securities of that
series may be presented for payment and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. Unless otherwise designated by the Company by written notice to the
Trustee, such office or agency shall be the office of the Trustee in The City of
New York, which, on the date hereof, is located at 00 Xxxx Xxxxxx, 0xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 4.03 SEC Reports; Financial Statements.
The Company shall file with the Trustee, within 15 days after
it files the same with the SEC, copies of the annual reports and the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) that the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. If the Company is not subject to the requirements of such Section
13 or 15(d), the Company shall file with the Trustee, within 15 days after it
would have been required to file the same with the SEC, financial statements,
including any notes thereto (and with respect to annual reports, an auditors'
report by a firm of established national reputation), and a "Management's
Discussion and Analysis of Financial Condition and Results of Operations," both
comparable to that which the Company would have been required to include in such
annual reports, information, documents or other reports if the Company had been
subject to the requirements of such Section 13 or 15(d). The Company shall file
with the Trustee and the SEC, in accordance with rules and regulations
prescribed from time to time by the SEC, such additional information, documents
and reports with respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by such rules
and regulations. The Company shall transmit by mail to all Holders, within 30
days after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company pursuant
to this Section 4.03 as may be
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required by rules and regulations prescribed from time to time by the SEC. The
Company shall also comply with the provisions of TIA Section 314(a).
SECTION 4.04 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, a statement signed by two
Officers of the Company, which need not constitute an Officers' Certificate,
complying with TIA Section 314(a)(4) and stating that in the course of
performance by the signing Officers of the Company of their duties as such
Officers of the Company they would normally obtain knowledge of the keeping,
observing, performing and fulfilling by the Company of its obligations under
this Indenture, and further stating, as to each such Officer signing such
statement, that to his knowledge the Company has kept, observed, performed and
fulfilled each and every covenant contained in this Indenture and is not in
default in the performance or observance of any of the terms, provisions and
conditions hereof (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which such Officer may have
knowledge and what action the Company is taking or proposes to take with respect
thereto).
(b) The Company shall, so long as Securities of any series are
outstanding, deliver to the Trustee, promptly upon any Officer of the Company
becoming aware of any Default or Event of Default under this Indenture, an
Officers' Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto.
SECTION 4.05 Corporate Existence.
Subject to Article V hereof, the Company shall do or cause to
be done all things necessary to preserve and keep in full force and effect its
corporate existence and the corporate, partnership and other existence of each
of its Significant Subsidiaries and all rights (charter and statutory) and
franchises of the Company and its Significant Subsidiaries; provided that the
Company shall not be required to preserve the corporate existence of any
Significant Subsidiary of the Company or any such right or franchise if it shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries taken as a whole and that the
loss thereof would not have a material adverse effect on the business, assets or
financial condition of the Company and its Subsidiaries taken as a whole and
would not have any material adverse effect on the payment and performance of the
obligations of the Company under the Securities and this Indenture.
SECTION 4.06 Maintenance of Properties.
The Company shall cause all material properties owned by or
leased to the Company or any Significant Subsidiary of the Company or used or
held for use in the conduct of its business or the business of any such
Significant Subsidiary to be maintained and kept in good condition, repair and
working order (reasonable wear and tear excepted) and will cause to be made all
necessary
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repairs, renewals, replacements, betterments and improvements thereof, all as in
the sole judgment of the Company may be necessary so that the business carried
on in connection therewith may be properly conducted at all times; provided that
nothing in this Section 4.06 shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the sole judgment of the Company, desirable and not disadvantageous in any
material respect to the Holders.
SECTION 4.07 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (i) all material taxes,
assessments and governmental charges levied or imposed upon the Company or any
of its Significant Subsidiaries or upon the income, profits or property of the
Company or any of its Significant Subsidiaries, and (ii) all material lawful
claims for labor, materials and supplies which, if unpaid, might by law become a
lien upon the property of the Company or any of its Significant Subsidiaries;
provided that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith or would not be
disadvantageous in any material respect to the Holders.
SECTION 4.08 Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
or any usury law or other law that would prohibit or forgive the Company from
paying all or any portion of the principal of or interest on the Securities of
any series as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this
Indenture, and (to the extent that it may lawfully do so) the Company hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
SECTION 4.09 Additional Amounts.
If the Securities of a series expressly provide for the
payment of Additional Amounts, the Company will pay to the Holder of any
Security of such series Additional Amounts as expressly provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any Security
of any series, such mention shall be deemed to include mention of the payment of
Additional Amounts provided for in this Section 4.09 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 4.09 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.
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Unless otherwise provided pursuant to Section 2.01 with
respect to Securities of any series, if the Securities of a series provide for
the payment of Additional Amounts, at least ten 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 ten 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 4.09.
ARTICLE V
SUCCESSORS
SECTION 5.01 Limitations on Mergers and Consolidations.
The Company shall not consolidate with or merge with any
Person, or sell, lease, convey, transfer or otherwise dispose of all or
substantially all of its assets to any Person, unless:
(1) either (a) the Company shall be the continuing corporation
or (b) the Person formed by or surviving such consolidation or merger
(if other than the Company), or to which such sale, lease, conveyance,
transfer or other disposition shall be made (collectively, the
"Successor"), is organized and existing under the laws of the United
States, or any State thereof or the District of Columbia, and expressly
assumes by supplemental indenture all of the obligations of the Company
under this Indenture and the Securities;
(2) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; and
(3) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that the
transaction and such supplemental indenture comply with this Indenture.
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SECTION 5.02 Successor Person Substituted.
Upon any consolidation or merger of the Company or any sale,
lease, conveyance, transfer or other disposition of all or substantially all of
the assets of the Company in accordance with Section 5.01, any Successor formed
by such consolidation or into or with which the Company is merged or to which
such sale, lease, conveyance, transfer or other disposition is made shall
succeed to, and be substituted for, and may exercise every right and power of
the Company under this Indenture and each series of Securities with the same
effect as if such Successor had been named as the Company herein and the
predecessor Company, in the case of a sale, conveyance, transfer or other
disposition, shall be released from all obligations under this Indenture and
each series of Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.
Unless either inapplicable to a particular series or
specifically deleted or modified in or pursuant to the supplemental indenture or
Board Resolution establishing such series of Securities or in the form of
Security for such series, an "Event of Default," wherever used herein with
respect to Securities of any series, occurs if:
(1) the Company defaults in the payment of interest on or any
Additional Amounts with respect to any Security of that series when the
same becomes due and payable and such default continues for a period of
30 days;
(2) the Company defaults in the payment of the principal of or
premium (if any) on any Security of that series at its Maturity;
(3) the Company defaults in the deposit of any mandatory
sinking fund payment, when and as due by the terms of a Security of
that series, and such default continues for a period of 30 days;
(4) the Company fails to comply with any of its other
agreements or covenants in, or provisions of, the Securities of such
series or this Indenture (other than an agreement, covenant or
provision that has expressly been included in this Indenture solely for
the benefit of one or more series of Securities other than that series)
and such failure continues for the period and after the notice
specified in the last paragraph of this Section 6.01;
(5) the Company or any Significant Subsidiary of the Company
pursuant to or within the meaning of any Bankruptcy Law:
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(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Bankruptcy
Custodian of it or for all or for a substantial part of its
property, or
(D) makes a general assignment for the benefit of its
creditors;
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that remains unstayed and in effect for
90 days and that:
(A) is for relief against the Company or any
Significant Subsidiary of the Company as debtor in an
involuntary case,
(B) appoints a Bankruptcy Custodian of the Company or
any Significant Subsidiary of the Company or a Bankruptcy
Custodian for all or for a substantial part of the property of
the Company or any Significant Subsidiary of the Company, or
(C) orders the liquidation of the Company or any
Significant Subsidiary of the Company; or
(7) any other Event of Default provided with respect to
Securities of that series occurs.
The term "Bankruptcy Custodian" means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
The Trustee shall not be deemed to know or have notice of a
Default unless a Trust Officer at the Corporate Trust Office of the Trustee
receives written notice at the Corporate Trust Office of the Trustee of such
Default with specific reference to such Default.
When a Default is cured, it ceases.
A Default under clause (4) or (7) of this Section 6.01 is not
an Event of Default until the Trustee notifies the Company, or the Holders of at
least 25% in principal amount of the then outstanding Securities of the series
affected by such Default notify the Company and the Trustee, of the Default, and
the Company fails to cure the Default within 90 days after receipt of the
notice. The notice must specify the Default, demand that it be remedied and
state that the notice is a "Notice of Default."
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SECTION 6.02 Acceleration.
If an Event of Default with respect to Securities of any
series at the time outstanding (other than an Event of Default specified in
clause (5) or (6) of Section 6.01 hereof) occurs and is continuing, the Trustee
by notice to the Company, or the Holders of at least 25% in principal amount of
the then outstanding Securities of that series by notice to the Company and the
Trustee, may declare the principal of (or, if any such Securities are Original
Issue Discount Securities, such portion of the principal amount as may be
specified in the terms of that series) and accrued and unpaid interest on all
then outstanding Securities of such series to be due and payable. Upon any such
declaration, the amounts due and payable on such Securities shall be due and
payable immediately. If an Event of Default specified in clause (5) or (6) of
Section 6.01 hereof occurs, such amounts shall ipso facto become and be
immediately due and payable without any declaration, notice 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 has been made and before a
judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article provided, the Holders of a majority in principal
amount of the then outstanding Securities of that series by written notice to
the Trustee may rescind an acceleration and its consequences (other than
nonpayment of principal of or premium or interest on or Additional Amounts with
respect to the Securities) if the rescission would not conflict with any
judgment or decree and if all existing Events of Default with respect to
Securities of that series have been cured or waived, except nonpayment of
principal, premium, interest or Additional Amounts that has become due solely
because of the acceleration.
SECTION 6.03 Other Remedies.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may pursue any available remedy to
collect the payment of principal of, or premium, if any, or interest on the
Securities of that series or to enforce the performance of any provision of the
Securities of that series or this Indenture.
The Trustee may maintain a proceeding with respect to
Securities of any series even if it does not possess any of the Securities of
that series or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
SECTION 6.04 Waiver of Existing or Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority
in principal amount of the then outstanding Securities of any series by notice
to the Trustee may waive an existing or past Default or Event of Default with
respect to such series and its consequences (including waivers obtained in
connection with a tender offer or exchange offer for Securities of such series
or a solicitation of consents in respect of Securities of such series, provided
that in each case such offer or solicitation is made to all Holders of then
outstanding Securities of such series), except (1) a
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continuing Default or Event of Default in the payment of the principal of, or
premium, if any, or interest on or any Additional Amounts with respect to any
Security of such series or (2) a continued Default in respect of a provision
that under Section 9.02 cannot be amended or supplemented without the consent of
the Holder of each outstanding Security of such series affected. Upon any such
waiver, such Default shall cease to exist, and any Event of Default with respect
to such series arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
SECTION 6.05 Control by Majority.
With respect to Securities of any series, the Holders of a
majority in principal amount of the then outstanding Securities of such series
may direct in writing the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it relating to or arising under an Event of Default with respect to
Securities of such series. However, the Trustee may refuse to follow any
direction that conflicts with applicable law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of other Holders of such
series, or that may involve the Trustee in personal liability; provided,
however, that the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction. Prior to taking any action
hereunder, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion from Holders directing the Trustee against all losses and
expenses caused by taking or not taking such action.
SECTION 6.06 Limitations on Suits.
Subject to Section 6.07 hereof, a Holder of a Security of any
series may pursue a remedy with respect to this Indenture or the Securities of
such series only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to such series;
(2) the Holders of at least 25% in principal amount of the
then outstanding Securities of such series make a written request to
the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
reasonably satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the Securities of that series do not give the
Trustee a direction inconsistent with the request.
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A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security to receive payment of principal of and
premium, if any, and interest on and any Additional Amounts with respect to that
Security, on or after the respective due dates expressed in that Security, or to
bring suit for the enforcement of any such payment on or after such respective
dates, is absolute and unconditional and shall not be impaired or affected
without the consent of the Holder.
SECTION 6.08 Collection Suit by Trustee.
If an Event of Default specified in clause (1), (2) or (3) of
Section 6.01 hereof occurs and is continuing with respect to Securities of any
series, the Trustee is authorized to recover judgment in its own name and as
trustee of an express trust against the Company for the amount of principal,
premium (if any), interest and any Additional Amounts remaining unpaid on the
Securities of that series, and interest on overdue principal and premium, if
any, and, to the extent lawful, interest on overdue interest, and such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
SECTION 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and
other papers or documents and to take such actions, including participating as a
member, voting or otherwise, of any committee of creditors, as may be necessary
or advisable to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and the Holders allowed in any judicial proceeding
relative to the Company or its creditors or properties and shall be entitled and
empowered to collect, receive and distribute any money or other property payable
or deliverable on any such claims and any Bankruptcy Custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be secured
by a lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other properties which the Holders of the Securities may
be entitled to receive in such proceeding whether in liquidation or under any
plan of reorganization or arrangement or otherwise. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept or
adopt on behalf of any Holder any plan of reorganization,
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arrangement, adjustment or composition affecting the Securities or the rights of
any Holder thereof, or to authorize the Trustee to vote in respect of the claim
of any Holder in any such proceeding.
SECTION 6.10 Priorities.
If the Trustee collects any money pursuant to this Article,
subject to Article X, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the
Securities in respect of which or for the benefit of which such money has been
collected, for principal, premium (if any), interest and any Additional Amounts
ratably, without preference or priority of any kind, according to the amounts
due and payable on such Securities for principal, premium (if any), interest and
any Additional Amounts, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix
record dates and payment dates for any payment to Holders pursuant to this
Article.
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorney's fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the then outstanding Securities of any series.
ARTICLE VII
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If an Event of Default with respect to the Securities of
any series has occurred and is continuing, the Trustee shall exercise such of
the rights and powers vested in it by this Indenture with respect to such
series, and use the same degree of care and skill in such exercise, as a prudent
man would exercise or use under the circumstances in the conduct of his own
affairs.
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(b) Except during the continuance of an Event of Default with
respect to the Securities of any series:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine such certificates
and opinions to determine whether, on their face, they appear to
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of Section
7.01(b);
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
the provisions of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee may refuse
to perform any duty or exercise any right or power unless it receives indemnity
reasonably satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law. All money received by the Trustee with
respect to Securities of any series shall, until applied as herein provided, be
held in trust for the payment of the principal of, premium (if any) and interest
on and Additional Amounts with respect to the Securities of that series.
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SECTION 7.02 Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel or both to be
provided. The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such Officers' Certificate or Opinion of
Counsel. 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.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company shall be sufficient if
signed by an Officer of the Company.
SECTION 7.03 May Hold Securities.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or
any of its Affiliates with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights and duties. However, the Trustee is
subject to Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities; it shall not be accountable for
the Company's use of the proceeds from the Securities or any money paid to the
Company or upon the Company's direction under any provision hereof; it shall not
be responsible for the use or application of any money received by any Paying
Agent other than the Trustee; and it shall not be responsible for any statement
or recital herein or any statement in the Securities other than its certificate
of authentication.
SECTION 7.05 Notice of Defaults.
If a Default or Event of Default with respect to the
Securities of any series occurs and is continuing and it is known to the
Trustee, the Trustee shall mail to Holders of Securities of such
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series a notice of the Default or Event of Default within 90 days after it
occurs. Except in the case of a Default or Event of Default in payment of
principal of, premium (if any) and interest on and Additional Amounts or any
sinking fund installment with respect to the Securities of such series, the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interests of Holders of Securities of such series.
SECTION 7.06 Reports by Trustee to Holders.
Within 60 days after each January 31, beginning with January
31, 1999, and in any event prior to March 31 in each year, the Trustee shall
mail to Holders of a series a brief report dated as of such reporting date that
complies with TIA Section 313(a); provided, however, that if no event described
in TIA Section 313(a) has occurred within the twelve months preceding the
reporting date with respect to a series, no report need be transmitted to
Holders of such series. The Trustee also shall comply with TIA Section 313(b).
The Trustee shall also transmit by mail all reports if and as required by TIA
Sections 313(c) and 313(d).
A copy of each report at the time of its mailing to Holders of
a series of Securities shall be filed with the SEC and each securities exchange,
if any, on which the Securities of such series are listed. The Company shall
notify the Trustee if and when any series of Securities is listed on any stock
exchange.
SECTION 7.07 Compensation and Indemnity.
The Company agrees to pay to the Trustee from time to time
reasonable compensation for its acceptance of this Indenture and services
hereunder. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company agrees to reimburse
the Trustee upon request for all reasonable disbursements, advances and expenses
incurred by it. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company hereby indemnifies the Trustee against any loss,
liability or expense incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, except as set
forth in the next paragraph. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may have separate
counsel and the Company shall pay the reasonable fees and expenses of such
counsel. The Company need not pay for any settlement made without its consent.
The Company shall not be obligated to reimburse any expense or
indemnify against any loss or liability incurred by the Trustee through
negligence or bad faith.
To secure the payment obligations of the Company in this
Section 7.07, the Trustee shall have, and the Company hereby grants, a lien
prior to the Securities on all money or property
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held or collected by the Trustee, except that held in trust to pay principal of,
premium (if any) and interest on and any Additional Amounts with respect to the
Securities of any series. Such lien shall survive the satisfaction and discharge
of this Indenture.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(5) or (6) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign and be discharged at any time with
respect to the Securities of one or more series by so notifying the Company. The
Holders of a majority in principal amount of the then outstanding Securities of
any series may remove the Trustee with respect to the Securities of such series
by so notifying the Trustee and the Company. The Company may remove the Trustee
if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a Bankruptcy Custodian or public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, with respect to the Securities of one or
more series, the Company shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood that
any such successor Trustee may be appointed with respect to the Securities of
one or more or all of such series and that at any time there shall be only one
Trustee with respect to the Securities of any particular series). Within one
year after the successor Trustee with respect to the Securities of any series
takes office, the Holders of a majority in principal amount of the Securities of
such series may appoint a successor Trustee to replace the successor Trustee
appointed by the Company.
If a successor Trustee with respect to the Securities of any
series does not take office within 60 days after the retiring Trustee resigns or
is removed, the retiring Trustee, the Company or the Holders of at least 10% in
principal amount of the then outstanding Securities of such series may
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petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
If the Trustee with respect to the Securities of a series
fails to comply with Section 7.10, any Holder of Securities of such series may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee with respect to the Securities of such
series.
In case of the appointment of a successor Trustee with respect
to all Securities, each such successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Company.
Thereupon the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the retiring Trustee under this Indenture. The successor Trustee shall
mail a notice of its succession to Holders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject to
the lien provided for in Section 7.07.
In case of the appointment of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the retiring
Trustee and each successor Trustee with respect to the Securities of one or more
(but not all) series shall execute and deliver an indenture supplemental hereto
in which each successor Trustee shall accept such appointment and that (1) shall
confer to each successor Trustee all the rights, powers and duties of the
retiring Trustee with respect to the Securities of that or those series to which
the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall confirm that all the
rights, powers and duties of the retiring Trustee with respect to the Securities
of that or those series as to which the retiring Trustee is not retiring shall
continue to be vested in the retiring Trustee and (3) shall add to or change any
of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee.
Nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust, and 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. Upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein and each such successor Trustee
shall have all the rights, powers 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. On the request of the Company or any successor
Trustee, such retiring Trustee shall transfer to such successor Trustee all
property held by such retiring Trustee as Trustee with respect to the Securities
of that or those series to which the appointment of such successor Trustee
relates.
Notwithstanding replacement of the Trustee or Trustees
pursuant to this Section 7.08, the obligations of the Company under Section 7.07
shall continue for the benefit of the retiring Trustee or Trustees.
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SECTION 7.09 Successor Trustee by Merger, etc.
Subject to Section 7.10, if the Trustee consolidates, merges
or converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee; provided, however, that in the case of a
transfer of all or substantially all of its corporate trust business to another
corporation, the transferee corporation expressly assumes all of the Trustee's
liabilities hereunder.
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; and in case at that time any of the
Securities shall not have been authenticated, any successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or
in the name of the successor to the Trustee; and in all such cases such
certificates shall have the full force which it is anywhere in the Securities or
in this Indenture provided that the certificate of the Trustee shall have.
SECTION 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be
a corporation organized and doing business under the laws of the United States,
any State thereof or the District of Columbia and authorized under such laws to
exercise corporate trust power, shall be subject to supervision or examination
by Federal or State (or the District of Columbia) authority and shall have, or
be a Subsidiary of a bank or bank holding company having, a combined capital and
surplus of at least $50 million as set forth in its most recent published annual
report of condition.
The Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is
subject to and shall comply with the provisions of TIA Section 310(b) during the
period of time required by this Indenture. Nothing in this Indenture shall
prevent the Trustee from filing with the SEC the application referred to in the
penultimate paragraph of TIA Section 310(b).
SECTION 7.11 Preferential Collection of Claims Against
Company.
The Trustee is subject to and shall comply with the provisions
of TIA Section 311(a), excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
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ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01 Termination of Company's Obligations.
(a) Except as otherwise specified, as contemplated by Section
2.01, for Securities of any series, this Indenture shall cease to be of further
effect with respect to the Securities of a series (except that the Company's
obligations under Section 7.07, the Trustee's and Paying Agent's obligations
under Section 8.03 and the rights, powers, protections and privileges accorded
the Trustee under Article VII shall survive), and the Trustee, on demand of the
Company, shall execute proper instruments acknowledging the satisfaction and
discharge of this Indenture with respect to the Securities of such series, when:
(1) either
(A) all outstanding Securities of such series
theretofore authenticated and issued (other than destroyed,
lost or stolen Securities that have been replaced or paid)
have been delivered to the Trustee for cancellation; or
(B) all outstanding Securities of such series not
theretofore delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) 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 has irrevocably deposited or caused to be
deposited with the Trustee as funds (immediately available to
the Holders in the case of clause (i)) in trust for such
purpose (x) cash in an amount, or (y) Government Obligations,
maturing as to principal and interest at such times and in
such amounts as will ensure the availability of cash in an
amount or (z) a combination thereof, which will be sufficient,
in the opinion (in the case of clauses (y) and (z)) of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge the entire indebtedness on the
Securities of such series for principal and any interest and
any Additional Amounts to the date of such deposit (in the
case of Securities which have become due and
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payable) or for principal, premium, if any, and interest and
any Additional Amounts to the Stated Maturity or Redemption
Date, as the case may be; or
(C) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 2.01, to be applicable to the
Securities of such series;
(2) the Company has paid or caused to be paid all other sums
payable by it hereunder with respect to the Securities of such series;
and
(3) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture with respect to the Securities of such
series have been complied with, together with an Opinion of Counsel to
the same effect.
(b) Unless this Section 8.01(b) is specified as not being
applicable to Securities of series as contemplated by Section 2.01, the Company
may terminate certain of its obligations under this Indenture ("covenant
defeasance") with respect to the Securities of a series if:
(1) the Company has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for and dedicated solely to the benefit of the Holders of
Securities of such series, (i) cash in an amount, or (ii) Government
Obligations with respect to such series, maturing as to principal and
interest at such times and in such amounts (without consideration of
the reinvestment of any such amounts) as will ensure the availability
of cash in an amount or (iii) a combination thereof, that is
sufficient, in the opinion (in the case of clauses (ii) and (iii)) of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay,
after payment of all taxes or other charges or assessments in respect
thereof payable by the Trustee, the principal of and premium (if any)
and any interest and Additional Amounts on all Securities of such
series on each date that such principal, premium (if any), interest and
Additional Amounts is due and payable and (at the Stated Maturity
thereof or upon redemption as provided in Section 8.01(e)) to pay all
other sums payable by it hereunder; provided that the Trustee shall
have been irrevocably instructed to apply such money and/or the
proceeds of such Government Obligations to the payment of said
principal, premium (if any), interest and Additional Amounts with
respect to the Securities of such series as the same shall become due;
(2) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture with respect to the Securities of such
series have been complied with, and an Opinion of Counsel to the same
effect;
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(3) no Default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit;
(4) the Company shall have delivered to the Trustee an Opinion
of Counsel from counsel reasonably acceptable to the Trustee or a tax
ruling to the effect that the Holders of Securities of such series will
not recognize income, gain or loss for Federal income tax purposes as a
result of the Company's exercise of its option under this Section
8.01(b) and will be subject to Federal income tax on the same amount
and in the same manner and at the same times as would have been the
case if such option had not been exercised;
(5) the Company has complied with any additional conditions
specified pursuant to Section 2.01 to be applicable to the discharge of
Securities of such series pursuant to this Section 8.01;
(6) such deposit and discharge shall not cause the Trustee to
have a conflicting interest as defined in TIA Section 310(b); and
(7) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that after the passage of 91 days following
the deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
In such event, this Indenture shall cease to be of further
effect (except as set forth in this paragraph), and the Trustee, on demand of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge under this Indenture. However, the Company's obligations in Sections
2.05, 2.06, 2.07, 2.08, 2.09, 4.01, 4.02, 5.01, 7.07, 7.08 and 8.04, the
Trustee's and Paying Agent's obligations in Section 8.03 and the rights, powers,
protections and privileges accorded the Trustee under Article VII shall survive
until all Securities of such series are no longer outstanding. Thereafter, only
the Company's obligations in Section 7.07 and the Trustee's and Paying Agent's
obligations in Section 8.03 shall survive with respect to Securities of such
series.
After such irrevocable deposit made pursuant to this Section
8.01(b) and satisfaction of the other conditions set forth herein, the Trustee
upon request shall acknowledge in writing the discharge of the Company's
obligations under this Indenture with respect to the Securities of such series
except for those surviving obligations specified above.
In order to have money available on a payment date to pay
principal of or premium (if any) on or interest or Additional Amounts on the
Securities, the Government Obligations shall be payable as to principal or
interest on or before such payment date in such amounts as will provide the
necessary money.
(c) If the Company has previously complied or is concurrently
complying with Section 8.01(b) (other than any additional conditions specified
pursuant to Section 2.01 that are
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expressly applicable only to covenant defeasance) with respect to Securities of
a series, then, unless this Section 8.01(c) is specified as not being applicable
to Securities of such series as contemplated by Section 2.01, the Company may
elect to be discharged ("legal defeasance") from its obligations to make
payments with respect to Securities of such series, if:
(1) no Default or Event of Default under clauses (5) and (6)
of Section 6.01 hereof shall have occurred at any time during the
period ending on the 91st day after the date of deposit contemplated by
Section 8.01(b) (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(2) unless otherwise specified with respect to Securities of
such series as contemplated by Section 2.01, the Company has delivered
to the Trustee an Opinion of Counsel from counsel reasonably acceptable
to the Trustee to the effect referred to in Section 8.01(b)(4) with
respect to such legal defeasance;
(3) the Company has complied with any other conditions
specified pursuant to Section 2.01 to be applicable to the legal
defeasance of Securities of such series pursuant to this Section
8.01(c); and
(4) the Company has delivered to the Trustee a Company Request
requesting such legal defeasance of the Securities of such series and
an Officers' Certificate stating that all conditions precedent with
respect to such legal defeasance of the Securities of such series have
been complied with, together with an Opinion of Counsel to the same
effect.
In such event, the Company will be discharged from its
obligations under this Indenture and the Securities of such series to pay
principal of, premium (if any) and interest on, and any Additional Amounts with
respect to Securities of such series, the Company's obligations under Sections
4.01, 4.02 and 5.01 shall terminate with respect to such Securities, and the
entire indebtedness of the Company evidenced by such Securities shall be deemed
paid and discharged.
(d) If and to the extent additional or alternative means of
satisfaction, discharge or defeasance of Securities of a series are specified to
be applicable to such series as contemplated by Section 2.01, the Company may
terminate any or all of its obligations under this Indenture with respect to
Securities of a series and any or all of its obligations under the Securities of
such series if it fulfills such other means of satisfaction and discharge as may
be so specified, as contemplated by Section 2.01, to be applicable to the
Securities of such series.
(e) If Securities of any series subject to subsections (a),
(b), (c) or (d) of this Section 8.01 are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory or optional sinking fund provisions, the terms of
the applicable trust arrangement shall provide for such redemption, and the
Company shall make such arrangements as are reasonably satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.
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SECTION 8.02 Application of Trust Money.
The Trustee or a trustee reasonably satisfactory to the
Trustee and the Company shall hold in trust money or Government Obligations
deposited with it pursuant to Section 8.01 hereof. It shall apply the deposited
money and the money from Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of, premium (if any)
and interest on and any Additional Amounts with respect to the Securities of the
series with respect to which the deposit was made. Money and securities held in
trust are not subject to Article X.
SECTION 8.03 Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the
Company at any time upon the written request of the Company any excess money or
Government Obligations (or proceeds therefrom) held by them.
Subject to the requirements of any applicable abandoned
property laws, the Trustee and the Paying Agent shall pay to the Company upon
written request any money held by them for the payment of principal, premium (if
any), interest or any Additional Amounts that remain unclaimed for two years
after the date upon which such payment shall have become due. After payment to
the Company, Holders entitled to the money must look to the Company for payment
as general creditors unless an applicable abandoned property law designates
another Person, and all liability of the Trustee and the Paying Agent with
respect to such money shall cease.
SECTION 8.04 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money or Government Obligations deposited with respect to Securities of any
series in accordance with Section 8.01 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the
obligations of the Company under this Indenture with respect to the Securities
of such series and under the Securities of such series shall be revived and
reinstated as though no deposit had occurred pursuant to Section 8.01 until such
time as the Trustee or the Paying Agent is permitted to apply all such money or
Government Obligations in accordance with Section 8.01; provided, however, that
if the Company has made any payment of principal of, premium (if any) or
interest on or any Additional Amounts with respect to any Securities because of
the reinstatement of its obligations, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the money
or Government Obligations held by the Trustee or the Paying Agent.
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ARTICLE IX
SUPPLEMENTAL INDENTURES AND AMENDMENTS
SECTION 9.01 Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Securities without the consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 5.01;
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities, or to provide for the issuance of bearer
Securities (with or without coupons);
(4) to provide any security for any series of Securities;
(5) to comply with any requirement in order to effect or maintain the
qualification of this Indenture under the TIA;
(6) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series), or to surrender any right or power herein conferred upon the
Company;
(7) to add any additional Events of Default with respect to all or any
series of the Securities (and, if such Events of Default are applicable to
less than all series of Securities, specifying the series to which such
Events of Default are applicable);
(8) 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 outstanding Security of any series created prior to the
execution of such amendment or supplemental indenture that is adversely
affected in any material respect by such change in or elimination of such
provision;
(9) to establish the form or terms of Securities of any series as
permitted by Section 2.01;
(10) 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 8.01; provided,
however, that any such action shall not adversely affect
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the interest of the Holders of Securities of such series or any other
series of Securities in any material respect; or
(11) 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 7.08.
Upon the request of the Company, accompanied by a Board Resolution,
and upon receipt by the Trustee of the documents described in Section 9.06, the
Trustee shall, subject to Section 9.06, join with the Company in the execution
of any supplemental indenture authorized or permitted by the terms of this
Indenture and make any further appropriate agreements and stipulations that may
be therein contained. After an amendment, supplement or waiver under this
Section 9.01 becomes effective, the Company shall mail to the Holders of each
Security affected thereby a notice briefly describing the amendment, supplement
or waiver. Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any
such amendment, supplement or waiver.
SECTION 9.02 With Consent of Holders.
Except as provided below in this Section 9.02, the Company and the
Trustee may amend or supplement this Indenture with the written consent
(including consents obtained in connection with a tender offer or exchange offer
for Securities of any one or more series or all series or a solicitation of
consents in respect of Securities of any one or more series or all series,
provided that in each case such offer or solicitation is made to all Holders of
then outstanding Securities of each such series (but the terms of such offer or
solicitation may vary from series to series)) of the Holders of at least a
majority in principal amount of the then outstanding Securities of all series
affected by such amendment or supplement (acting as one class).
Upon the request of the Company, accompanied by a Board Resolution,
and upon the filing with the Trustee of evidence of the consent of the Holders
as aforesaid, and upon receipt by the Trustee of the documents described in
Section 9.06, the Trustee shall join with the Company in the execution of such
amendment or supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
The Holders of a majority in principal amount of the then outstanding
Securities of one or more series may waive compliance in a particular instance
by the Company with any provision of this Indenture with respect to Securities
of such series (including waivers obtained in connection with a tender offer or
exchange offer for Securities of such series or a solicitation of
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consents in respect of Securities of such series, provided that in each case
such offer or solicitation is made to all Holders of then outstanding Securities
of such series (but the terms of such offer or solicitation may vary from series
to series)).
However, without the consent of each Holder affected, an amendment,
supplement or waiver under this Section 9.02 may not:
(1) reduce the amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of interest,
including default interest, on any Security;
(3) reduce the principal of, premium on or any mandatory sinking fund
payment with respect to, or change the Stated Maturity of, any Security or
reduce the amount of the principal of an Original Issue Discount Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 6.02;
(4) reduce the premium, if any, payable upon the redemption of any
Security or change the time at which any Security may or shall be redeemed;
(5) change any obligation of the Company to pay Additional Amounts
with respect to any Security;
(6) change the coin or currency in which any Security or any premium,
interest or Additional Amounts with respect thereto are payable;
(7) impair the right to institute suit for the enforcement of any
payment of principal of, premium (if any) or interest on or any Additional
Amounts with respect to any Security pursuant to Sections 6.07 and 6.08,
except as limited by Section 6.06;
(8) make any change in the percentage of principal amount of
Securities necessary to waive compliance with certain provisions of this
Indenture pursuant to Section 6.04 or 6.07 or make any change in this
sentence of Section 9.02;
(9) modify the provisions of this Indenture with respect to the
subordination of any Security in a manner adverse to the Holder thereof; or
(10) waive a continuing Default or Event of Default in the payment of
principal of, premium (if any) or interest on or Additional Amounts with
respect to the Securities.
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An amendment under this Section may not make any change that adversely
affects the rights under Article X of any holder of an issue of Senior
Indebtedness unless the holders of the issue pursuant to its terms consent to
the change.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for
the benefit of one or more particular series of Securities, or that 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.
The right of any Holder to participate in any consent required or
sought pursuant to any provision of this Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such Holder) may be
subject to the requirement that such Holder shall have been the Holder of record
of any Securities with respect to which such consent is required or sought as of
a date identified by the Company in a notice furnished to Holders in accordance
with the terms of this Indenture.
SECTION 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the Securities
shall comply in form and substance with the TIA as then in effect.
SECTION 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his or her Security or portion of a Security if the Trustee
receives written notice of revocation before the date the amendment, supplement
or waiver becomes effective. An amendment, supplement, or waiver becomes
effective in accordance with its terms and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record date
(which need not comply with Section 316(c) of the TIA) for the purpose of
determining the Holders of Securities of any series entitled to consent to any
amendment, supplement or waiver or to take any other action under this
Indenture. If a record date is fixed, then notwithstanding the provisions of the
immediately preceding paragraph, those Persons who were Holders at such record
date (or their duly designated proxies), and only those Persons, shall be
entitled to consent to such amendment, supplement or waiver or to revoke any
consent previously given, whether or not such Persons continue to be Holders
after such record date. No consent shall be valid or effective for more than 90
days after such record date unless consents from Holders of the principal amount
of Securities
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required hereunder for such amendment or waiver to be effective shall have also
been given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it shall
bind every Holder, unless it is of the type described in any of clauses (1)
through (9) of Section 9.01 hereof. In such case, the amendment, supplement, or
waiver shall bind each Holder who has consented to it and every subsequent
Holder that evidences the same debt as the consenting Holder's Security.
SECTION 9.05 Notation on or Exchange of Securities.
If an amendment or supplement changes the terms of an outstanding
Security, the Company may require the Holder of the Security to deliver it to
the Trustee. The Trustee may place an appropriate notation on the Security at
the request of the Company regarding the changed terms and return it to the
Holder. Alternatively, if the Company so determines, the Company in exchange for
the Security shall issue and the Trustee shall authenticate a new Security that
reflects the changed terms. Failure to make the appropriate notation or to issue
a new Security shall not affect the validity of such amendment or supplement.
Securities of any series authenticated and delivered after the
execution of any amendment or supplement may, and shall if required by the
Company, bear a notation in form approved by the Company as to any matter
provided for in such amendment or supplement.
SECTION 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplement authorized pursuant
to this Article if the amendment or supplement does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing or refusing to sign such
amendment or supplement, the Trustee shall be entitled to receive, and, subject
to Section 7.01 hereof, shall be fully protected in relying upon, an Opinion of
Counsel provided at the expense of the Company as conclusive evidence that such
amendment or supplement is authorized or permitted by this Indenture, that it is
not inconsistent herewith, and that it will be valid and binding upon the
Company in accordance with its terms.
ARTICLE X
SUBORDINATION
SECTION 10.01 Securities Subordinated to Senior Indebtedness.
The Company and each Holder of a Security, by his acceptance thereof,
agree that (a) the payment of the principal of, premium (if any) and interest on
and any Additional Amounts with respect to each and all the Securities and (b)
any other payment in respect of the Securities, including on account of the
acquisition or redemption of Securities by the Company, is subordinated,
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to the extent and in the manner provided in this Article X, to the prior payment
in full of all Senior Indebtedness of the Company, whether outstanding at the
date of this Indenture or thereafter created, incurred, assumed or guaranteed,
and that these subordination provisions are for the benefit of the holders of
Senior Indebtedness.
This Article X shall constitute a continuing offer to all Persons who,
in reliance upon such provisions, become holders of, or continue to hold, Senior
Indebtedness, and such provisions are made for the benefit of the holders of
Senior Indebtedness, and such holders are made obligees hereunder and any one or
more of them may enforce such provisions.
SECTION 10.02 No Payment on Securities in Certain Circumstances.
(a) Unless otherwise specified with respect to Securities of a series
as contemplated by Section 2.01, no payment shall be made by or on behalf of the
Company on account of the principal of, premium (if any) or interest on or any
Additional Amounts with respect to the Securities of any series or to acquire
any of such Securities (including any repurchases of such Securities pursuant to
the provisions thereof at the option of the Holder of such Securities) for cash
or property (other than Junior securities of the Company), or on account of any
redemption provisions of such Securities, in the event of default in payment of
any principal of, premium (if any) or interest on any Senior Indebtedness of the
Company when the same becomes due and payable, whether at maturity or at a date
fixed for prepayment or by declaration of acceleration or otherwise (a "Payment
Default"), unless and until such Payment Default has been cured or waived or
otherwise has ceased to exist.
(b) Unless otherwise specified with respect to Securities of a series
as contemplated by Section 2.01, no payment shall be made by or on behalf of the
Company on account of the principal of, premium (if any) or interest on or any
Additional Amounts with respect to the Securities of any series or to acquire
any of such Securities (including any repurchases of such Securities pursuant to
the provisions thereof at the option of the Holder of such Securities) for cash
or property (other than Junior securities of the Company), or on account of the
redemption provisions of such Securities, in the event of any event of default
(other than a Payment Default) with respect to any Designated Senior
Indebtedness permitting the holders of such Designated Senior Indebtedness (or a
trustee or other representative on behalf of the holders thereof) to declare
such Designated Senior Indebtedness due and payable prior to the date on which
it would otherwise have become due and payable, upon written notice thereof to
the Company and the Trustee by any holders of Designated Senior Indebtedness (or
a trustee or other representative on behalf of the holders thereof) (the
"Payment Blocking Notice"), unless and until such event of default shall have
been cured or waived or otherwise has ceased to exist; provided, that such
payments may not be prevented pursuant to this Section 10.02(b) for more than
179 days after an applicable Payment Blocking Notice has been received by the
Trustee unless the Designated Senior Indebtedness in respect of which such event
of default exists has been declared due and payable in its entirety, in which
case no such payment may be made until such acceleration has been rescinded or
annulled or such Designated Senior Indebtedness has been paid in full. Unless
otherwise specified with respect to
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Securities of a series as contemplated by Section 2.01, no event of default that
existed or was continuing on the date of any Payment Blocking Notice (whether or
not such event of default is on the same issue of Designated Senior
Indebtedness) may be made the basis for the giving of a second Payment Blocking
Notice, and only one such Payment Blocking Notice may be given in any 365-day
period.
(c) In furtherance of the provisions of Section 10.01, in the event
that, notwithstanding the foregoing provisions of this Section 10.02, any
payment or distribution of assets of the Company (other than Junior securities
of the Company) shall be received by the Trustee or the Holders of the
Securities of any series at a time when such payment or distribution was
prohibited by the provisions of this Section 10.02, then, unless such payment or
distribution is no longer prohibited by this Section 10.02, such payment or
distribution (subject to the provisions of Section 10.07) shall be received and
held in trust by the Trustee or such Holder or Paying Agent for the benefit of
the holders of Senior Indebtedness of the Company, and shall be paid or
delivered by the Trustee or such Holders or such Paying Agent, as the case may
be, to the holders of Senior Indebtedness of the Company remaining unpaid or
unprovided for or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness of the Company may have been issued, ratably, according to
the aggregate amounts remaining unpaid on account of such Senior Indebtedness of
the Company held or represented by each, for application to the payment of all
Senior Indebtedness in full after giving effect to all concurrent payments and
distributions to or for the holders of such Senior Indebtedness.
SECTION 10.03 Securities Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization.
Upon any distribution of assets of the Company or upon any
dissolution, winding up, total or partial liquidation or reorganization of the
Company, whether voluntary or involuntary, in bankruptcy, insolvency,
receivership or similar proceeding or upon assignment for the benefit of
creditors:
(a) the holders of all Senior Indebtedness of the Company shall first
be entitled to receive payments in full before the Holders of Securities of any
series are entitled to receive any payment on account of the principal of,
premium (if any) or interest on or any Additional Amounts with respect to such
Securities (other than Junior securities of the Company);
(b) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities (other than Junior
securities of the Company), to which the Holders of Securities of any series or
the Trustee on behalf of such Holders would be entitled, except for the
provisions of this Article X, shall be paid by the liquidating trustee or agent
or other Person making such a payment or distribution directly to the holders of
such Senior Indebtedness or their representative, ratably according to the
respective amounts of Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full of all such Senior Indebtedness
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remaining unpaid after giving effect to all concurrent payments and
distributions to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities (other than Junior securities of the Company), shall be
received by the Trustee or the Holders of Securities of any series or any Paying
Agent (or, if the Company or any Affiliate of the Company is acting as its own
Paying Agent, money for any such payment or distribution shall be segregated or
held in trust) on account of the principal of, premium (if any) or interest on
or any Additional Amounts with respect to the Securities of such series before
all Senior Indebtedness of the Company is paid in full, such payment or
distribution (subject to the provisions of Section 10.07) shall be received and
held in trust by the Trustee or such Holder or Paying Agent for the benefit of
the holders of such Senior Indebtedness, or their respective representatives,
ratably according to the respective amounts of such Senior Indebtedness held or
represented by each, to the extent necessary to make payment as provided herein
of all such Senior Indebtedness remaining unpaid after giving effect to all
concurrent payments and distributions and all provisions therefor to or for the
holders of such Senior Indebtedness, but only to the extent that as to any
holder of such Senior Indebtedness, as promptly as practical following notice
from the Trustee to the holders of such Senior Indebtedness that such prohibited
payment has been received by the Trustee, Holder(s) or Paying Agent (or has been
segregated as provided above), such holder (or a representative therefor)
notifies the Trustee of the amounts then due and owing on such Senior
Indebtedness, if any, held by such holder and only the amounts specified in such
notices to the Trustee shall be paid to the holders of such Senior Indebtedness.
SECTION 10.04 Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness of the
Company as provided herein, the Holders of the Securities shall be subrogated
(to the extent of the payments or distributions made to the holders of such
Senior Indebtedness pursuant to the provisions of this Article) to the rights of
the holders of such Senior Indebtedness to receive payments or distributions of
assets of the Company applicable to the Senior Indebtedness until all amounts
owing on the Securities shall be paid in full. For the purpose of such
subrogation, no such payments or distributions to the holders of such Senior
Indebtedness by the Company, or by or on behalf of the Holders of the Securities
by virtue of this Article X, which otherwise would have been made to such
Holders shall, as between the Company and such Holders, be deemed to be payment
by the Company or on account of such Senior Indebtedness, it being understood
that the provisions of this Article X 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 such Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders of the Securities
would otherwise have been entitled but for the provisions of this Article X
shall have been applied, pursuant to the provisions of this Article X, to the
payment of amounts payable under Senior Indebtedness of the Company, then such
Holders shall be entitled to receive from the holders of Senior Indebtedness any
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payments or distributions received by such holders of Senior Indebtedness in
excess of the amount sufficient to pay all amounts payable under or in respect
of such Senior Indebtedness in full.
SECTION 10.05 Obligations of the Company Unconditional.
Nothing contained in this Article X or elsewhere in this Indenture or
in the Securities is intended to or shall impair, as between the Company and the
Holders of the Securities of any series, the obligation of the Company, which is
absolute and unconditional, to pay to such Holders the principal of, premium (if
any) and interest on and any Additional Amounts with respect to the Securities
of such series as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of such
Holders and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
X, of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
Notwithstanding anything to the contrary in this Article X or elsewhere in this
Indenture or in the Securities, upon any distribution of assets of the Company
referred to in this Article X, the Trustee, subject to the provisions of
Sections 7.01 and 7.02, and the Holders of the Securities shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding up, liquidation or reorganization proceedings
are pending, or a certificate of the liquidating trustee or agent or other
Person making any distribution to the Trustee or to such Holders for the purpose
of ascertaining the Persons entitled to participate in such 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 X so long as
such court has been apprised of the provisions of, or the order, decree or
certificate makes reference to, the provisions of this Article X.
SECTION 10.06 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts that would prohibit the making of any payment to or by
the Trustee unless and until a Responsible Officer of the Trustee or any Paying
Agent shall have received, no later than two Business Days prior to such
payment, written notice thereof from the Company or from one or more holders 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
Sections 7.01 and 7.02, shall be entitled in all respects conclusively to assume
that no such fact exists.
SECTION 10.07 Application by Trustee of Amounts Deposited with It.
Amounts deposited in trust with the Trustee pursuant to and in
accordance with Article VIII shall be for the sole benefit of Holders of the
Securities of the series for the benefit of
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which such amounts were deposited, and, to the extent allocated for the payment
of Securities of such series, shall not be subject to the subordination
provisions of this Article X. Otherwise, any deposits of assets with the Trustee
or the Paying Agent (whether or not in trust) for the payment of principal of,
premium (if any) or interest on or any Additional Amounts with respect to any
Securities shall be subject to the provisions of Sections 10.01, 10.02, 10.03,
and 10.04; provided that if prior to two Business Days preceding the date on
which by the terms of this Indenture any such assets may become distributable
for any purpose (including without limitation, the payment of either principal
of, premium (if any) or interest on or any Additional Amounts with respect to
any Security), a Responsible Officer of the Trustee or such Paying Agent shall
not have received with respect to such assets the written notice provided for in
Section 10.06, then the Trustee or such Paying Agent shall have full power and
authority to receive such assets and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary that
may be received by it on or after such date; and provided further that nothing
contained in this Article X shall prevent the Company from making, or the
Trustee from receiving or applying, any payment in connection with the
redemption of Securities if the first publication of notice of such redemption
(whether by mail or otherwise in accordance with this Indenture) has been made,
and the Trustee has received such payment from the Company, prior to the
occurrence of any of the contingencies specified in Section 10.02 or 10.03.
SECTION 10.08 Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Indebtedness.
No right of any present or future holders of any Senior Indebtedness
to enforce the subordination provisions contained in this Article X shall at any
time in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Company with the terms of this Indenture,
regardless of any knowledge thereof that any such holder may have or be
otherwise charged with. The holders of Senior Indebtedness may extend, renew,
modify or amend the terms of the Senior Indebtedness or any security therefor
and release, sell or exchange such security and otherwise deal freely with the
Company, all without affecting the liabilities and obligations of the parties to
this Indenture or the Holders of the Securities.
SECTION 10.09 Trustee to Effectuate Subordination of Securities.
Each Holder of a Security by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provisions contained in
this Article X and to protect the rights of the Holders of the Securities
pursuant to this Indenture, and appoints the Trustee his attorney-in-fact for
such purpose, including, in the event of any dissolution, winding up,
liquidation or reorganization of the Company (whether in bankruptcy, insolvency
or receivership proceedings or upon an assignment for the benefit of creditors
of the Company), the filing of a claim for the unpaid balance of his Securities
in the form required in said proceedings and cause said claim to be approved. If
the Trustee does not file a proper claim or proof of debt in the form required
in such proceeding prior to 30 days before the
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expiration of the time to file such claim or claims, then the holders of the
Senior Indebtedness or their representative is hereby authorized to have the
right to file and is hereby authorized to file an appropriate claim for an on
behalf of the Holders of said Securities. Nothing herein contained shall be
deemed to authorize the Trustee or the holders of Senior Indebtedness or their
representative to authorize or consent to or accept or adopt on behalf of any
Holder of Securities any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee or the holders of Senior Indebtedness or their
representative to vote in respect of the claim of any Holder of the Securities
in any such proceeding.
SECTION 10.10 Right of Trustee to Hold Senior Indebtedness.
The Trustee in its individual capacity shall be entitled to all of the
rights set forth in this Article X in respect of any Senior Indebtedness at any
time held by it to the same extent as any other holder of Senior Indebtedness,
and nothing in this Indenture shall be construed to deprive the Trustee of any
of its rights as such holder.
SECTION 10.11 Article X Not to Prevent Events of Default.
The failure to make a payment on account of principal of or premium
(if any) or interest on the Securities by reason of any provision of this
Article X shall not be construed as preventing the occurrence of a Default or an
Event of Default under Section 6.01 or in any way prevent the Holders of the
Securities from exercising any right hereunder other than the right to receive
payment on the Securities.
SECTION 10.12 No Fiduciary Duty of Trustee to 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
(other than for its willful misconduct or negligence) if it shall in good faith
mistakenly pay over or distribute to the Holders of the Securities or the
Company or any other Person, cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article X or
otherwise. Nothing in this Section 10.12 shall affect the obligation of any
other such Person to hold such payment for the benefit of, and to pay such
payment over to, the holders of Senior Indebtedness or their representative.
SECTION 10.13 Article Applicable to Paying Agent.
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 X shall in such case (unless the context shall otherwise
require) 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 in addition to or in place of the Trustee, provided, however,
that this Section 10.13 shall not apply to the Company or any Affiliate of the
Company if it or such Affiliate acts as Paying Agent.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by operation of TIA Section 318(c), the imposed duties shall
control.
SECTION 11.02 Notices.
Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in person or mailed by first-class
mail (registered or certified, return receipt requested), telex, facsimile or
overnight air courier guaranteeing next day delivery, to the other's address:
If to the Company:
Seitel, Inc.
00 Xxxxx Xxxxxx Xxxx
0xx Xxxxx, Xxxx Xxxxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
If to the Trustee:
The First National Bank of Chicago
0 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All 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, postage prepaid, if mailed; when answered back, if
telexed; when receipt acknowledged, if by facsimile; and the next Business Day
after timely delivery to the courier, if sent by overnight air courier
guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first-class
mail, postage prepaid, to the Holder's address shown on the register kept by the
Registrar. Failure to mail a notice
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or communication to a Holder or any defect in it shall not affect its
sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it, except in the case of notice to the Trustee, it is duly given only
when received.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
All notices or communications, including without limitation notices to
the Trustee or the Company by Holders, shall be in writing, except as otherwise
set forth herein.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice required by
this Indenture, then such method of notification as shall be made with the
approval of the Trustee shall constitute a sufficient mailing of such notice.
SECTION 11.03 Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
SECTION 11.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall, if requested by the Trustee,
furnish to the Trustee at the expense of the Company:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 11.05) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 11.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been complied
with.
SECTION 11.05 Statements Required in Certificate or Opinion.
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Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e)) and shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him or her
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
SECTION 11.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or the Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 11.07 Legal Holidays.
If a payment date is a Legal Holiday at a Place of Payment, payment
may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 11.08 No Recourse Against Others.
A director, officer, employee, stockholder, partner or other owner of
the Company or the Trustee, as such, shall not have any liability for any
obligations of the Company under the Securities or for any obligations of the
Company or the Trustee under this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. Each Holder by
accepting a Security waives and releases all such liability. The waiver and
release shall be part of the consideration for the issue of Securities.
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SECTION 11.09 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
SECTION 11.10 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or any other Subsidiary of the Company. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.11 Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of the Trustee in this Indenture shall
bind its successors.
SECTION 11.12 Severability.
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, to the fullest extent permitted by applicable
law, not in any way be affected or impaired thereby.
SECTION 11.13 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
SECTION 11.14 Table of Contents; Headings, etc.
The table of contents, cross-reference table and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
SECTION 11.15 Agent for Service of Process.
The Company hereby designates CT Corporation System, currently located
at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx, as its authorized agent upon whom process
may be served in any action, suit or proceeding that may be instituted in any
State or Federal court sitting in the County of New York of the State of New
York pertaining to this Indenture or any matter arising out of or related to
this Indenture, and the Company will accept the jurisdiction of such court in
such action, and waive, to the fullest extent permitted by applicable law, any
defense based upon lack of personal jurisdiction or venue or forum non
conveniens. The Company may and shall (to the extent the
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process agent ceases to be able to be served on the basis contemplated herein),
by written notice to the Trustee, designate such additional or alternative
agents for service of process under this Section 11.15 that (i) maintains an
office located in the Borough of Manhattan, The City of New York in the State of
New York, (ii) are either (a) counsel for the Company or (b) a corporate service
company which acts as agent for service of process for other persons in the
ordinary course of its business and (iii) agrees to act as agent for service of
process in accordance with this Section 11.15. Such notice shall identify the
name of such agent for process and the address of such agent for process in the
Borough of Manhattan, The City of New York, State of New York. Upon the request
of any holder of a Debenture, the Trustee shall deliver such information to such
holder. Notwithstanding the foregoing, there shall, at all times, be at least
one agent for service of process for the Company appointed and acting in
accordance with this Section 11.15. A copy of any such process shall be sent or
given to the Company at the address for notices specified in Section 11.02
hereof. The Company shall maintain the designation of such authorized agent
until two years after termination of the Company's obligation under this
Indenture pursuant to Section 8.01.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
SEITEL, INC.
By:
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Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:
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Name:
Title:
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