Exhibit 4.4
FORM OF INDENTURE
MARITRANS INC.
ISSUER
and
[------------------]
INDENTURE TRUSTEE
---------------------------------------------
INDENTURE
Dated as of _________, 2005
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE.......................................... 1
Section 1.01 Definitions................................................................... 1
Section 1.02 Other Definitions............................................................. 5
Section 1.03 Incorporation by Reference of Trust Indenture Act............................. 5
Section 1.04 Rules of Construction......................................................... 6
ARTICLE II THE SECURITIES...................................................................... 6
Section 2.01 Issuable in Series............................................................ 6
Section 2.02 Establishment of Terms of Series of Securities................................ 6
Section 2.03 Execution and Authentication.................................................. 8
Section 2.04 Registrar and Paying Agent.................................................... 9
Section 2.05 Paying Agent to Hold Money in Trust........................................... 10
Section 2.06 Holder Lists.................................................................. 10
Section 2.07 Transfer and Exchange......................................................... 10
Section 2.08 Mutilated, Destroyed, Lost and Stolen Securities.............................. 10
Section 2.09 Outstanding Securities........................................................ 11
Section 2.10 Treasury Securities........................................................... 11
Section 2.11 Temporary Securities.......................................................... 11
Section 2.12 Cancellation.................................................................. 12
Section 2.13 Defaulted Interest............................................................ 12
Section 2.14 Global Securities............................................................. 12
Section 2.15 CUSIP Numbers................................................................. 13
ARTICLE III REDEMPTION.......................................................................... 13
Section 3.01 Notice to Trustee............................................................. 14
Section 3.02 Selection of Securities to be Redeemed........................................ 14
Section 3.03 Notice of Redemption.......................................................... 14
Section 3.04 Effect of Notice of Redemption................................................ 15
Section 3.05 Deposit of Redemption Price................................................... 15
Section 3.06 Securities Redeemed in Part................................................... 15
ARTICLE IV COVENANTS........................................................................... 15
Section 4.01 Payment of Principal and Interest............................................. 15
Section 4.02 SEC Reports................................................................... 15
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TABLE OF CONTENTS
(continued)
PAGE
Section 4.03 Stay, Extension and Usury Laws................................................ 16
ARTICLE V SUCCESSORS.......................................................................... 16
Section 5.01 When Company May Merge, Etc................................................... 16
Section 5.02 Successor Corporation Substituted............................................. 16
ARTICLE VI DEFAULTS AND REMEDIES............................................................... 17
Section 6.01 Events of Default............................................................. 17
Section 6.02 Acceleration of Maturity; Rescission and Annulment............................ 18
Section 6.03 Collection of Indebtedness and Suits for Enforcement by Trustee............... 18
Section 6.04 Trustee May File Proofs of Claim.............................................. 19
Section 6.05 Trustee May Enforce Claims Without Possession of Securities................... 20
Section 6.06 Application of Money Collected................................................ 20
Section 6.07 Limitation on Suits........................................................... 20
Section 6.08 Unconditional Right of Holders to Receive Principal and Interest.............. 21
Section 6.09 Restoration of Rights and Remedies............................................ 21
Section 6.10 Rights and Remedies Cumulative................................................ 21
Section 6.11 Delay or Omission Not Waiver.................................................. 21
Section 6.12 Control by Holders............................................................ 21
Section 6.13 Waiver of Past Defaults....................................................... 22
Section 6.14 Undertaking for Costs......................................................... 22
ARTICLE VII TRUSTEE............................................................................. 22
Section 7.01 Duties of Trustee............................................................. 22
Section 7.02 Rights of Trustee............................................................. 24
Section 7.03 Individual Rights of Trustee.................................................. 24
Section 7.04 Trustee's Disclaimer.......................................................... 25
Section 7.05 Notice of Defaults............................................................ 25
Section 7.06 Reports by Trustee to Holders................................................. 25
Section 7.07 Compensation and Indemnity.................................................... 25
Section 7.08 Replacement of Trustee........................................................ 26
Section 7.09 Successor Trustee by Merger, etc.............................................. 27
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TABLE OF CONTENTS
(continued)
PAGE
Section 7.10 Eligibility; Disqualification................................................. 27
Section 7.11 Preferential Collection of Claims Against Company............................. 27
ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE.............................................. 27
Section 8.01 Satisfaction and Discharge of Indenture....................................... 27
Section 8.02 Application of Trust Funds; Indemnification................................... 28
Section 8.03 Legal Defeasance of Securities of any Series.................................. 28
Section 8.04 Covenant Defeasance........................................................... 30
Section 8.05 Repayment to Company.......................................................... 31
Section 8.06 Reinstatement................................................................. 31
ARTICLE IX AMENDMENTS AND WAIVERS.............................................................. 32
Section 9.01 Without Consent of Holders.................................................... 32
Section 9.02 With Consent of Holders....................................................... 33
Section 9.03 Limitations................................................................... 33
Section 9.04 Compliance with Trust Indenture Act........................................... 34
Section 9.05 Revocation and Effect of Consents............................................. 34
Section 9.06 Notation on or Exchange of Securities......................................... 34
Section 9.07 Trustee Protected............................................................. 34
ARTICLE X MISCELLANEOUS....................................................................... 34
Section 10.01 Trust Indenture Act Controls.................................................. 34
Section 10.02 Notices....................................................................... 34
Section 10.03 Communication by Holders with Other Holders................................... 35
Section 10.04 Certificate and Opinion as to Conditions Precedent............................ 35
Section 10.05 Statements Required in Certificate or Opinion................................. 36
Section 10.06 Rules by Trustee and Agents................................................... 36
Section 10.07 Legal Holidays................................................................ 36
Section 10.08 No Recourse Against Others.................................................... 36
Section 10.09 Counterparts.................................................................. 36
Section 10.10 Governing Laws................................................................ 37
Section 10.11 No Adverse Interpretation of Other Agreements................................. 37
Section 10.12 Successors.................................................................... 37
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TABLE OF CONTENTS
(continued)
PAGE
Section 10.13 Severability.................................................................. 37
Section 10.14 Table of Contents, Headings, Etc.............................................. 37
Section 10.15 Securities in a Foreign Currency.............................................. 37
Section 10.16 Judgment Currency............................................................. 38
ARTICLE XI SINKING FUNDS....................................................................... 38
Section 11.01 Applicability of Article...................................................... 38
Section 11.02 Satisfaction of Sinking Fund Payments with Securities......................... 38
Section 11.03 Redemption of Securities for Sinking Fund..................................... 39
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MARITRANS INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939 AND
INDENTURE, DATED AS OF AUGUST ___, 2005
Section 310 (a)(1) 7.10
(a)(2) 7.10
(a)(3) NOT APPLICABLE
(a)(4) NOT APPLICABLE
(a)(5) 7.10
(b) 7.10
Section 311 (a) 7.11
(b) 7.11
(c) NOT APPLICABLE
Section 312 (a) 2.06
(b) 10.03
(c) 10.03
Section 313 (a) 7.06
(b)(1) 7.06
(b)(2) 7.06
(c)(1) 7.06
(d) 7.06
Section 314 (a) 4.02, 10.05
(b) NOT APPLICABLE
(c)(1) 10.04
(c)(2) 10.04
(c)(3) NOT APPLICABLE
(d) NOT APPLICABLE
(e) 10.05
(f) NOT APPLICABLE
Section 315 (a) 7.01
(b) 7.05
(c) 7.01
(d) 7.01
(e) 6.14
Section 316 (a) 2.09
(a)(1)(a) 6.12
(a)(1)(b) 6.13
(b) 6.08
Section 317 (a)(1) 6.03
(a)(2) 6.04
(b) 2.05
Section 318 (a) 10.01
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Indenture dated as of _______________, 2005 between Maritrans Inc., a
Delaware corporation ("Company"), and _______________, a ____________
corporation, as trustee ("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 Securities issued under this
Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 DEFINITIONS.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes imposed on Holders specified
herein or therein and which are owing to such Holders.
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlled by" and
"under common control with"), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such person, whether through the
ownership of voting securities or by agreement or otherwise.
"Agent" means any Registrar, Paying Agent or Service Agent.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Global Security or beneficial interest therein, the rules and
procedures of DTC or any successor Depositary, in each case to the extent
applicable to such transaction and as in effect from time to time.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication customarily published at least once a day for at least
five days in each calendar week and of general circulation in the place in
connection with which the term is used. If it shall be impractical in the
opinion of the Trustee to make any publication of any notice required hereby in
an Authorized Newspaper, any publication or other notice in lieu thereof that is
made or given by the Trustee shall constitute a sufficient publication of such
notice.
"Bearer" means anyone in possession from time to time of a Bearer
Security.
"Bearer Security" means any Security, including any interest coupon
appertaining thereto, that does not provide for the identification of the Holder
thereof.
"Board of Directors" means the Board of Directors of the Company or any
duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in
full force and effect on the date of the certificate and delivered to the
Trustee.
"Business Day" means, unless otherwise provided by Board Resolution,
Officers' Certificate or supplemental indenture hereto for a particular Series,
any day except a Saturday, Sunday or a legal holiday in The City of New York on
which banking institutions are authorized or required by law, regulation or
executive order to close.
"Capital Interests" means any and all shares, interests, participations,
rights or other equivalents (however designated) of capital stock, including,
without limitation, with respect to partnerships, partnership interests (whether
general or limited) and any other interest or participation that confers on a
person the right to receive a share of the profits and losses of, or
distributions of assets of, such partnership.
"Company" means the party named as such above until a successor replaces
it and thereafter means the successor.
"Company Order" means a written order signed in the name of the Company by
two Officers, one of whom must be the Company's principal executive officer,
principal financial officer or principal accounting officer.
"Company Request" means a written request signed in the name of the
Company by its Chief Executive Officer, Chief Financial Officer or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally administered.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Depository" means, with respect to the Securities of any Series issuable
or issued in whole or part in the form of one or more Global Securities, the
person designated as Depositary for such Series by the Company, which Depository
shall be a clearing agency registered under the Exchange Act; and if at any time
there is more than one such person, "Depository" as used with respect to the
Securities of any Series shall mean the Depository with respect to the
Securities of such Series.
"Discount Security" means any Security that provides for an amount less
than the stated principal amount thereof to be due and payable upon declaration
of acceleration of the maturity thereof pursuant to Section 6.02.
"Dollars" and "$" means the currency of The United States of America.
"DTC" means the Depository Trust Company, a New York corporation.
2
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Foreign Currency" means any currency or currency unit issued by a
government other than the government of The United States of America.
"Foreign Government Obligations" means, with respect to Securities of any
Series that are denominated in a Foreign Currency, (i) direct obligations of the
government that issued or caused to be issued such currency for the payment of
which obligations its full faith and credit is pledged or (ii) obligations of a
person controlled or supervised by or acting as an agency or instrumentality of
such government the timely payment of which is unconditionally guaranteed as a
full faith and credit obligation by such government, which, in either case under
clauses (i) or (ii), are not callable or redeemable at the option of the issuer
thereof.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Standards Board or in such other statements by such other entity as have been
approved by a significant segment of the accounting profession.
"Global Security" or "Global Securities" means a Security or Securities,
as the case may be, in the form established pursuant to Section 2.02 evidencing
all or part of a Series of Securities, issued to the Depository for such Series
or its nominee, and registered in the name of such Depository or nominee.
"Holder" means a person in whose name a Security is registered or the
holder of a Bearer Security.
"Indenture" means this Indenture as amended or supplemented from time to
time and shall include the form and terms of particular Series of Securities
established as contemplated hereunder.
"interest" with respect to any Discount Security which by its terms bears
interest only after Maturity means interest payable after Maturity.
"Maturity," when used with respect to any Security or installment of
principal thereof, means the date on which the principal of such Security or
such installment of principal becomes due and payable as therein or herein
provided, whether at the Stated Maturity or by declaration of acceleration, call
for redemption or otherwise.
"Officer" means the Chief Executive Officer, Chief Financial Officer, any
Vice-President, the Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers, one of
whom must be the Company's principal executive officer, principal financial
officer or principal accounting officer.
3
"Opinion of Counsel" means a written opinion of legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company.
"person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"principal" of a Security means the principal of the Security plus, when
appropriate, the premium, if any, on, and any Additional Amounts in respect of,
the Security.
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office with direct responsibility for the administration of this Indenture
and also means, with respect to a particular corporate trust matter, any other
officer to whom any corporate trust matter is referred because of his or her
knowledge of and familiarity with a particular subject.
"SEC" means the Securities and Exchange Commission.
"Securities" means the debentures, notes or other debt instruments of the
Company of any Series authenticated and delivered under this Indenture.
"Series" or "Series of Securities" means each series of debentures, notes
or other debt instruments of the Company created pursuant to Sections 2.01 and
2.02 hereof.
"Stated Maturity" means when used with respect to any Security or any
installment of principal thereof 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 interest is due and payable.
"Subsidiary" means, with respect to any person, any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of Capital Interests entitled (without regard to the occurrence
of any contingency) to vote in the election of directors, managers or trustees
thereof or, in the case of a partnership, more than 50% of the partners' Capital
Interests (considering all partners' Capital Interests as a single class), is at
the time owned or controlled, directly or indirectly, by such person or one or
more of the other Subsidiaries of such person or combination thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) as in effect on the date of this Indenture and the rules and
regulations promulgated threunder; provided, however, that in the event the
Trust Indenture Act of 1939 is amended after such date, "TIA" means, to the
extent required by any such amendment, the Trust Indenture Act as so amended.
"Trustee" means the person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
each person who is then a Trustee hereunder, and if at any time there is more
than one such person, "Trustee" as used with respect to the Securities of any
Series shall mean the Trustee with respect to Securities of that Series.
4
"U.S. Government Obligations" means securities which are (i) direct
obligations of The United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a person controlled or
supervised by and acting as an agency or instrumentality of The United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by The United States of America, and which are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation evidenced by such
depository receipt.
SECTION 1.02 OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
-------------------------------- ----------
"Bankruptcy Law" 6.01
"Custodian" 6.01
"Event of Default" 6.01
"Judgment Currency" 10.16
"Legal Holiday" 10.07
"mandatory sinking fund payment" 11.01
"Market Exchange Rate" 10.15
"New York Banking Day" 10.16
"optional sinking fund payment" 11.01
"Paying Agent" 2.04
"Registrar" 2.04
"Required Currency" 10.16
"Service Agent" 2.04
"successor person" 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.
5
"obligor" on the indenture securities means the Company and any successor
obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
and not otherwise defined herein are used herein as so defined.
SECTION 1.04 RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to
it in accordance with generally accepted accounting principles;
(c) references to "generally accepted accounting principles" and "GAAP'
shall mean generally accepted accounting principles in effect as of the time
when and for the period as to which such accounting principles are to be
applied;
(d) "or" is not exclusive;
(e) words in the singular include the plural, and in the plural include
the singular; and
(f) provisions apply to successive events and transactions.
ARTICLE II
THE SECURITIES
SECTION 2.01 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. All Securities of
a Series shall be identical except as may be set forth or determined in the
manner provided in a Board Resolution, supplemental indenture or Officers'
Certificate detailing the adoption of the terms thereof pursuant to authority
granted under a Board Resolution. In the case of Securities of a Series to be
issued from time to time, the Board Resolution, Officers' Certificate or
supplemental indenture detailing the adoption of the terms thereof pursuant to
authority granted under a Board Resolution may provide for the method by which
specified terms (such as interest rate, maturity date, record date or date from
which interest shall accrue) are to be determined. Securities may differ between
Series in respect of any matters, provided that all Series of Securities shall
be equally and ratably entitled to the benefits of the Indenture.
SECTION 2.02 ESTABLISHMENT OF TERMS OF SERIES OF SECURITIES. At or prior
to the issuance of any Securities within a Series, the following shall be
established (as to the Series generally, in the case of Subsection 2.02(a) and
either as to such Securities within the Series or as to the Series generally in
the case of Subsections 2.02(b) through 2.02(s) by or pursuant to a Board
Resolution, and set forth or determined in the manner provided in a Board
Resolution, supplemental indenture or an Officers' Certificate:
6
(a) the form and title of the Series (which shall distinguish the
Securities of that particular Series from the Securities of any other Series);
(b) the price or prices (expressed as a percentage of the principal
amount thereof) at which the Securities of the Series will be issued;
(c) any limit upon the aggregate principal amount of the Securities
of the Series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of the Series pursuant
to Section 2.07, 2.08, 2.11, 3.06 or 9.06);
(d) the date or dates on which the principal of the Securities of
the Series is payable;
(e) the rate or rates (which may be fixed or variable) per annum or,
if applicable, the method used to determine such rate or rates (including, but
not limited to, any commodity, commodity index, stock exchange index or
financial index) at which the Securities of the Series shall bear interest, if
any, the date or dates from which such interest, if any, shall accrue, the date
or dates on which such interest, if any, shall commence and be payable and any
regular record date for the interest payable on any interest payment date;
(f) the place or places where the principal of and interest, if any,
on the Securities of the Series shall be payable, where the Securities of such
Series may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Securities of such
Series and this Indenture may be served, and the method of such payment, if by
wire transfer, mail or other means;
(g) if applicable, the period or periods within which, the price or
prices at which and the terms and conditions upon which the Securities of the
Series may be redeemed, in whole or in part, at the option of the Company;
(h) the obligation, if any, of the Company to redeem or purchase the
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 at which and the terms and conditions upon which Securities of
the Series shall be redeemed or purchased, in whole or in part, pursuant to such
obligation;
(i) the dates, if any, on which and the price or prices at which the
Securities of the Series will be repurchased by the Company at the option of the
Holders thereof and other detailed terms and provisions of such repurchase
obligations;
(j) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which the Securities of the Series shall be
issuable;
(k) if other than the principal amount thereof, the portion of the
principal amount of the Securities of the Series that shall be payable upon
declaration of acceleration of the maturity thereof pursuant to Section 6.02;
7
(l) the currency of denomination of the Securities of the Series,
which may be Dollars or any Foreign Currency, and the agency or organization, if
any, responsible for overseeing such composite currency;
(m) the provisions, if any, relating to any security provided for
the Securities of the Series;
(n) any addition to or change in the Events of Default which applies
to any Securities of the Series and any change in the right of the Trustee or
the requisite Holders of such Securities to declare the principal amount thereof
due and payable pursuant to Section 6.02;
(o) any addition to or change in the covenants set forth in Articles
IV or V which applies to Securities of the Series;
(p) the provisions, if any, relating to conversion of any Securities
of such Series, including, if applicable, the securities into which the
Securities are convertible, the conversion price, the conversion period,
provisions as to whether conversion will be mandatory, at the option of the
Holders or at the option of the Company, the events requiring an adjustment of
the conversion price and provisions affecting conversion if such Series of
Securities are redeemed;
(q) whether the Securities of such Series will be senior debt
securities or subordinated debt securities and, if applicable, a description of
the subordination terms thereof;
(r) any depositaries, interest rate calculation agents, exchange
rate calculation agents or other agents with respect to Securities of such
Series if other than those appointed herein; and
(s) any other terms of the Securities of the Series (which may
modify or delete any provision of this Indenture insofar as it applies to such
Series).
All Securities of any one Series need not be issued at the same time and
may be issued from time to time, consistent with the terms of this Indenture, if
so provided by or pursuant to the Board Resolution, supplemental indenture
hereto or Officers' Certificate referred to above, and, unless otherwise
provided in such Board Resolution, a Series may be reopened, without the consent
of the Holders, for increases in the aggregate principal amount of such Series
and issuances of additional Securities of such Series.
SECTION 2.03 EXECUTION AND AUTHENTICATION. Two Officers shall sign the
Securities for the Company by manual or facsimile signature. If an Officer whose
signature is on a Security no longer holds that office at the time the Security
is authenticated, the Security shall nevertheless be valid. A Security shall not
be valid until authenticated by the manual signature of the Trustee or an
authenticating agent. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture. The Trustee shall at any
time, and from time to time, authenticate Securities for original issue in the
principal amount provided in the Board Resolution, supplemental indenture hereto
or Officers' Certificate, upon receipt by the Trustee of a Company Order. Such
Company Order may authorize authentication and delivery pursuant to oral or
electronic instructions from the Company or its duly authorized agent or
8
agents, which oral instructions shall be promptly confirmed in writing. Each
Security shall be dated the date of its authentication unless otherwise provided
by a Board Resolution, a supplemental indenture hereto or an Officers'
Certificate. The aggregate principal amount of Securities of any Series
outstanding at any time may not exceed any limit upon the maximum principal
amount for such Series set forth in the Board Resolution, supplemental indenture
hereto or Officers' Certificate delivered pursuant to Section 2.02, except as
provided in Section 2.02 or 2.08. Prior to the issuance of Securities of any
Series, the Trustee shall have received and (subject to Section 7.02) shall be
fully protected in relying on: (a) the Board Resolution, supplemental indenture
hereto or Officers' Certificate establishing the form of the Securities of that
Series or of Securities within that Series and the terms of the Securities of
that Series or of Securities within that Series, (b) an Officers' Certificate
complying with Section 10.04 and (c) an Opinion of Counsel complying with
Section 10.04. The Trustee shall have the right to decline to authenticate and
deliver any Securities of such Series: (a) if the Trustee, being advised by
counsel, determines that such action may not be taken lawfully; or (b) if the
Trustee's by its board of directors or trustees, executive committee or a trust
committee of directors and/or vice-presidents shall determine in good faith that
such action would expose the Trustee to personal liability to Holders of any
then outstanding Series of Securities. The Trustee may appoint an authenticating
agent acceptable to the Company to authenticate Securities. An authenticating
agent may authenticate Securities whenever the Trustee may do so. Each reference
in this Indenture to authentication by the Trustee includes authentication by
such agent. An authenticating agent has the same rights as an Agent to deal with
the Company or an Affiliate of the Company.
SECTION 2.04 REGISTRAR AND PAYING AGENT. The Company shall maintain, with
respect to each Series of Securities, at the place or places specified with
respect to such Series pursuant to Section 2.02, an office or agency where
Securities of such Series may be presented or surrendered for payment ("Paying
Agent"), where Securities of such Series may be surrendered for registration of
transfer or exchange ("Registrar") and where notices and demands to or upon the
Company in respect of the Securities of such Series and this Indenture may be
served ("Service Agent"). The Registrar shall keep a register with respect to
each Series of Securities and to their transfer and exchange. The Company will
give prompt written notice to the Trustee of the name and address, and any
change in the name or address, of each Registrar, Paying Agent or Service Agent.
If at any time the Company shall fail to maintain any such required Registrar,
Paying Agent or Service Agent or shall fail to furnish the Trustee with the name
and address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands. The Company may also from time to time
designate one or more co-registrars, additional paying agents or additional
service agents 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 obligations to maintain a Registrar, Paying Agent and Service
Agent in each place so specified pursuant to Section 2.02 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 name or
address of any such co-registrar, additional paying agent or additional service
agent. The term "Registrar" includes any co-registrar; the term "Paying Agent"
includes any additional paying agent; and the term "Service Agent" includes any
additional service agent. The Company hereby appoints the Trustee the initial
Registrar, Paying Agent and Service Agent for each Series unless another
9
Registrar, Paying Agent or Service Agent, as the case may be, is appointed prior
to the time Securities of that Series are first issued.
SECTION 2.05 PAYING AGENT TO HOLD MONEY IN TRUST. 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 any Series of
Securities, or the Trustee, all money held by the Paying Agent for the payment
of principal of or interest on the Series of Securities, 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. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, 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, it shall segregate and hold in a separate trust
fund for the benefit of Holders of any Series of Securities all money held by it
as Paying Agent.
SECTION 2.06 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, the Company shall
furnish to the Trustee at least ten (10) days before each interest payment date
and at such other times as the Trustee may request in writing a list, in such
form and as of such date as the Trustee may reasonably require, of the names and
addresses of Holders of each Series of Securities.
SECTION 2.07 TRANSFER AND EXCHANGE. Where Securities of a Series are
presented to the Registrar or a co-registrar with a request to register a
transfer or to exchange them for an equal principal amount of Securities of the
same Series, the Registrar shall register the transfer or make the exchange if
its requirements for such transactions are met. To permit registrations of
transfers and exchanges, the Trustee shall authenticate Securities at the
Registrar's request. No service charge shall be made 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 any such
transfer tax or similar governmental charge payable upon exchanges pursuant to
Sections 2.11, 3.06 or 9.06). Neither the Company nor the Registrar shall be
required (a) to issue, register the transfer of, or exchange Securities of any
Series for the period beginning at the opening of business fifteen days
immediately preceding the mailing of a notice of redemption of Securities of
that Series selected for redemption and ending at the close of business on the
day of such mailing, or (b) to register the transfer of or exchange Securities
of any Series selected, called or being called for redemption as a whole or the
portion being redeemed of any such Securities selected, called or being called
for redemption in part.
SECTION 2.08 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
(a) If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and make available for
delivery in exchange therefor a new Security of the same Series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding. If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such
10
security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a protected purchaser,
the Company shall execute and upon its request the Trustee shall authenticate
and make available for delivery, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same Series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding. In case any such
mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security.
(b) Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that Series duly issued hereunder. The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities.
SECTION 2.09 OUTSTANDING SECURITIES. The Securities outstanding at any
time are all the Securities authenticated by the Trustee except for those
canceled by it, those delivered to it for cancellation, those reductions in the
interest on a Global Security effected by the Trustee in accordance with the
provisions hereof and those described in this Section as not outstanding. If a
Security is replaced pursuant to Section 2.08, it ceases to be outstanding until
the Trustee receives proof satisfactory to it that the replaced Security is held
by a protected purchaser. If the Paying Agent (other than the Company, a
Subsidiary of the Company or an Affiliate of the Company) holds on the Maturity
of Securities of a Series money sufficient to pay such Securities payable on
that date, then on and after that date such Securities of the Series cease to be
outstanding and interest on them ceases to accrue. A Security does not cease to
be outstanding because the Company or an Affiliate of the Company holds the
Security. In determining whether the Holders of the requisite principal amount
of outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of a
Discount Security that shall be deemed to be outstanding for such purposes shall
be the amount of the principal thereof that would be due and payable as of the
date of such determination upon a declaration of acceleration of the Maturity
thereof pursuant to Section 6.02.
SECTION 2.10 TREASURY SECURITIES. In determining whether the Holders of
the required principal amount of Securities of a Series have concurred in any
request, demand, authorization, direction, notice, consent or waiver, Securities
of a Series owned by the Company shall be disregarded, except that for the
purposes of determining whether the Trustee shall be protected in relying on any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities of a Series that the Trustee knows are so owned shall be so
disregarded.
SECTION 2.11 TEMPORARY SECURITIES. Until definitive Securities are ready
for delivery, the Company may prepare and the Trustee shall authenticate
temporary Securities upon a
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Company Order. 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 upon request shall authenticate definitive
Securities of the same Series and date of maturity in exchange for temporary
Securities. Until so exchanged, temporary securities shall have the same rights
under this Indenture as the definitive Securities.
SECTION 2.12 CANCELLATION. The Company at any time may deliver Securities
to the Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee any Securities surrendered to them for registration of
transfer, exchange or payment. The Trustee shall cancel all Securities
surrendered for registration of transfer, exchange, payment, replacement or
cancellation in accordance with its customary procedures and deliver such
canceled Securities to the Company, unless the Company otherwise directs;
provided that the Trustee shall not be required to destroy Securities. The
Company may not issue new Securities to replace Securities that it has paid or
delivered to the Trustee for cancellation.
SECTION 2.13 DEFAULTED INTEREST. If the Company defaults in a payment of
interest on a Series of Securities, it shall pay the defaulted interest, plus,
to the extent permitted by law, any interest payable on the defaulted interest,
to the persons who are Holders of the Series on a subsequent special record
date. The Company shall fix the record date and payment date. At least ten (10)
days before the record date, the Company shall mail to the Trustee and to each
Holder of the Series a notice that states the record date, the payment date and
the amount of interest to be paid. The Company may pay defaulted interest in any
other lawful manner.
SECTION 2.14 GLOBAL SECURITIES
(a) Terms of Securities. A Board Resolution, a supplemental
indenture hereto or an Officers' Certificate shall establish whether the
Securities of a Series shall be issued in whole or in part in the form of one or
more Global Securities and the Depository for such Global Security or
Securities.
(b) Transfer and Exchange. Notwithstanding any provisions to the
contrary contained in Section 2.07 of the Indenture and in addition thereto, any
Global Security shall be exchangeable pursuant to Section 2.07 of the Indenture
for Securities registered in the names of Holders other than the Depository for
such Security or its nominee only if (i) such Depository notifies the Company
that it is unwilling or unable to continue as Depository for such Global
Security or if at any time such Depository ceases to be a clearing agency
registered under the Exchange Act, and, in either case, the Company fails to
appoint a successor Depository registered as a clearing agency under the
Exchange Act within 90 days of such event, (ii) the Company executes and
delivers to the Trustee an Officers' Certificate to the effect that such Global
Security shall be so exchangeable or (iii) an Event of Default with respect to
the Securities represented by such Global Security shall have happened and be
continuing. Any Global Security that is exchangeable pursuant to the preceding
sentence shall be exchangeable for Securities registered in such names as the
Depository shall direct in writing in an aggregate principal amount equal to the
principal amount of the Global Security with like tenor and terms.
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(c) Except as provided in this Section 2.14(c), a Global Security
may not be transferred except as a whole by the Depository with respect to such
Global Security to a nominee of such Depository, by a nominee of such Depository
to such Depository or another nominee of such Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such a successor
Depository.
(d) Legend. Any Global Security issued hereunder shall bear a legend
in substantially the following form:
(e) "This Security is a Global Security within the meaning of the
Indenture hereinafter referred to and is registered in the name of the
Depository or a nominee of the Depository. This Security is exchangeable for
Securities registered in the name of a person other than the Depository or its
nominee only in the limited circumstances described in the Indenture, and may
not be transferred except as a whole by the Depository to a nominee of the
Depository, by a nominee of the Depository to the Depository or another nominee
of the Depository or by the Depository or any such nominee to a successor
Depository or a nominee of such a successor Depository."
(f) Acts of Holders. The Depository, as a Holder, may appoint agents
and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder
is entitled to give or take under the Indenture.
(g) Payments. Notwithstanding the other provisions of this
Indenture, unless otherwise specified as contemplated by Section 2.02, payment
of the principal of and interest, if any, on any Global Security shall be made
to the Holder thereof.
(h) Consents, Declaration and Directions. Except as provided in
Section 2.14(g), the Company, the Trustee and any Agent shall treat a person as
the Holder of such principal amount of outstanding Securities of such Series
represented by a Global Security as shall be specified in a written statement of
the Depository with respect to such Global Security, for purposes of obtaining
any consents, declarations, waivers or directions required to be given by the
Holders pursuant to this Indenture.
(i) The Depository or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under the
Indenture and the Securities, and owners of beneficial interests in a Global
Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security will be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee and such owners of
beneficial interests in a Global Security will not be considered the owners or
holders thereof.
SECTION 2.15 CUSIP NUMBERS. The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on
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the other elements of identification printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company shall promptly notify the Trustee of any change in "CUSIP" numbers
of which the Company becomes aware.
ARTICLE III
REDEMPTION
SECTION 3.01 NOTICE TO TRUSTEE. The Company may, with respect to any
Series of Securities, reserve the right to redeem and pay the Series of
Securities or may covenant to redeem and pay the Series of Securities or any
part thereof prior to the Stated Maturity thereof at such time and on such terms
as provided for in such Securities. If a Series of Securities is redeemable and
the Company wants or is obligated to redeem prior to the Stated Maturity thereof
all or part of the Series of Securities pursuant to the terms of such
Securities, it shall notify the Trustee of the redemption date and the principal
amount of Series of Securities to be redeemed.
SECTION 3.02 SELECTION OF SECURITIES TO BE REDEEMED. Unless otherwise
indicated for a particular Series by a Board Resolution, a supplemental
indenture or an Officers' Certificate, if less than all the Securities of a
Series are to be redeemed, the Trustee shall select the Securities of the Series
to be redeemed in any manner that the Trustee deems fair and appropriate. The
Trustee shall make the selection from Securities of the Series outstanding not
previously called for redemption. The Trustee may select for redemption portions
of the principal of Securities of the Series that have denominations larger than
$1,000. Securities of the Series and portions of them it selects shall be in
amounts of $1,000 or whole multiples of $1,000 or, with respect to Securities of
any Series issuable in other denominations pursuant to Section 2.02(j), the
minimum principal denomination for each Series and integral multiples thereof.
Provisions of this Indenture that apply to Securities of a Series called for
redemption also apply to portions of Securities of that Series called for
redemption.
SECTION 3.03 NOTICE OF REDEMPTION.
(a) Unless otherwise indicated for a particular Series by Board
Resolution, a supplemental indenture hereto or an Officers' Certificate, at
least 30 days but not more than 60 days before a redemption date, the Company
shall mail a notice of redemption by first-class mail to each Holder whose
Securities are to be redeemed and, if any Bearer Securities are outstanding,
publish on one occasion a notice in an Authorized Newspaper. The notice shall
identify the Securities of the Series to be redeemed and shall state:
(i) the redemption date;
(ii) the redemption price;
(iii) the name and address of the Paying Agent;
(iv) that Securities of the Series called for redemption must
be surrendered to the Paying Agent to collect the redemption price;
(v) that interest on Securities of the Series called for
redemption ceases to accrue on and after the redemption date;
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(vi) the CUSIP number, if any; and
(vii) any other information as may be required by the terms of
the particular Series or the Securities of a Series being redeemed.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at its expense.
SECTION 3.04 EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption is
mailed or published as provided in Section 3.03, Securities of a Series called
for redemption become due and payable on the redemption date and at the
redemption price. A notice of redemption may not be conditional. Upon surrender
to the Paying Agent, such Securities shall be paid at the redemption price plus
accrued interest to the redemption date; provided that installments of interest
whose Stated Maturity is on or prior to the redemption date shall be payable to
the Holders of such Securities (or one or more predecessor Securities)
registered at the close of business on the relevant record date therefor
according to their terms and the terms of this Indenture.
SECTION 3.05 DEPOSIT OF REDEMPTION PRICE. On or before 10:00 a.m., New
York City time, on the redemption date, the Company shall deposit with the
Paying Agent money sufficient to pay the redemption price of and accrued
interest, if any, on all Securities to be redeemed on that date.
SECTION 3.06 SECURITIES REDEEMED IN PART. Upon surrender of a Security
that is redeemed in part, the Trustee shall authenticate for the Holder a new
Security of the same Series and the same maturity equal in principal amount to
the unredeemed portion of the Security surrendered.
ARTICLE IV
COVENANTS
SECTION 4.01 PAYMENT OF PRINCIPAL AND INTEREST. The Company covenants and
agrees for the benefit of the Holders of each Series of Securities that it will
duly and punctually pay the principal of and interest, if any, on the Securities
of that Series in accordance with the terms of such Securities and this
Indenture.
SECTION 4.02 SEC REPORTS. The Company shall, so long as any of the
Securities are outstanding, electronically file with the Commission the annual,
quarterly and other periodic reports that the Company is required to file (or
would be otherwise required to file) with the Commission pursuant to Sections 13
and 15(d) of the Exchange Act. The Company also shall comply with the other
provisions of TIA Section 314(a). Delivery of any reports, information and
documents to the Trustee is for informational purposes only and the Trustee's
receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein, including
the Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on an Officers' Certificate).
15
SECTION 4.03 COMPLIANCE CERTIFICATE. The Company shall, so long as any of
the Securities are outstanding, deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company, an Officers' Certificate stating
whether or not to the knowledge of the signers thereof the Company is in default
in the performance and observance of any of the terms, provisions and conditions
hereof (without regard to any period of grace or requirement of notice provided
hereunder), and if a Default or Event of Default shall have occurred, specifying
all such Defaults or Events of Default and the nature and status thereof of
which they may have knowledge. The Company shall, so long as any of the
Securities are outstanding, deliver to the Trustee, within thirty (30) days
after becoming aware of any Default or Event of Default, 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 4.04 STAY, EXTENSION AND USURY LAWS. The Company covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon,
plead or in any manner whatsoever claim or take the benefit or advantage of, any
stay, extension or usury law wherever enacted, now or at any time hereafter in
force, which may affect the covenants or the performance of this Indenture or
the Securities and the Company (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not, by resort to any such law, 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 has been enacted.
ARTICLE V
SUCCESSORS
SECTION 5.01 WHEN COMPANY MAY MERGE, ETC. The Company shall not
consolidate with or merge with or into, or convey, transfer or lease all or
substantially all of its properties and assets to, any person (a "successor
person") unless:
(a) the Company is the surviving corporation or the successor person
(if other than the Company) is organized and validly existing under the laws of
any U.S. domestic jurisdiction and expressly assumes the Company's obligations
on the Securities and under this Indenture; and
(b) immediately after giving effect to the transaction, no Default
or Event of Default shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the consummation of the
proposed transaction an Officers' Certificate to the foregoing effect and an
Opinion of Counsel stating that the proposed transaction and any supplemental
indenture comply with this Indenture.
SECTION 5.02 SUCCESSOR CORPORATION SUBSTITUTED. Upon any consolidation or
merger, or any sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Company in accordance with Section 5.01,
the successor corporation formed by such consolidation or into or with which the
Company is merged or to which such sale, lease, conveyance 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 with the same effect as if
16
such successor person has been named as the Company herein; provided, however,
that the predecessor Company in the case of a sale, conveyance or other
disposition (other than a lease) shall be released from all obligations and
covenants under this Indenture and the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01 EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Securities of any
Series, means any one of the following events, unless in the establishing Board
Resolution, supplemental indenture or Officers' Certificate, it is provided that
such Series shall not have the benefit of said Event of Default:
(a) default in the payment of any interest on any Security of that
Series when it becomes due and payable, and continuance of such default for a
period of 30 days (unless the entire amount of such payment is deposited by the
Company with the Trustee or with a Paying Agent prior to the expiration of such
period of 30 days); or
(b) default in the payment of principal of any Security of that
Series at its Maturity; or
(c) default in the performance or breach of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty for which
the consequences of nonperformance or breach are addressed elsewhere in this
Section 6.01 and other than a covenant or warranty that has been included in
this Indenture solely for the benefit of Series of Securities other than that
Series), which default continues uncured for a period of 90 days after there has
been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of not less than a majority in
principal amount of the outstanding Securities of that Series a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a "Notice of Default" hereunder; or
(d) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against it
in an involuntary case,
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) makes an admission by writing that it is generally unable
to pay its debts as the same become due; or
17
(e) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(i) is for relief against the Company in an involuntary case,
(ii) appoints a Custodian of the Company or for all or
substantially all of its property, or
(iii) orders the liquidation of the Company, and the order or
decree remains unstayed and in effect for 90 days; or
(f) any other Event of Default provided with respect to Securities
of that Series, which is specified in a Board Resolution, a supplemental
indenture hereto or an Officers' Certificate, in accordance with Section
2.02(n).
The term "Bankruptcy Law" means Title 11 of the U.S. Code or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
SECTION 6.02 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an
Event of Default with respect to Securities of any Series at the time
outstanding occurs and is continuing (other than an Event of Default referred to
in Section 6.1(d) or (e)), then in every such case the Trustee or the Holders of
not less than a majority in principal amount of the outstanding Securities of
that Series may declare the principal amount (or, if any Securities of that
Series are Discount Securities, such portion of the principal amount as may be
specified in the terms of such Securities) of and accrued and unpaid interest,
if any, on all of the Securities of that Series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) and accrued and unpaid interest, if any, shall become immediately due
and payable. If an Event of Default specified in Section 6.1(d) or (e) shall
occur, the principal amount (or specified amount) of and accrued and unpaid
interest, if any, on all outstanding Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder. At any time after such a declaration of acceleration
with respect to 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
outstanding Securities of that Series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if all
Events of Default with respect to Securities of that Series, other than the
non-payment of the principal and interest, if any, of Securities of that Series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 6.13. No such rescission shall affect any
subsequent Default or impair any right consequent thereon.
SECTION 6.03 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if:
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
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(b) default is made in the payment of principal of any Security at
the Maturity thereof,
then the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and any
overdue interest at the rate or rates prescribed therefor in such Securities
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or deemed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any Securities of any Series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such Series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
SECTION 6.04 TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise, (a) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and (b) to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same, and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07. Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement,
19
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 6.05 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which such judgment has been
recovered.
SECTION 6.06 APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section 7.07;
and
Second: To the payment of the amounts then due and unpaid for principal of
and interest on the Securities in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority of any
kind, according to the amounts due and payable on such Securities for principal
and interest, respectively; and
Third: To the Company.
SECTION 6.07 LIMITATION ON SUITS. No Holder of any Security of any Series
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that Series;
(b) the Holders of at least a majority in principal amount of the
outstanding Securities of that Series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the outstanding Securities of that Series;
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it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 6.08 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND
INTEREST. Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest, if any, on such Security on
the Stated Maturity or Stated Maturities expressed in such Security (or, in the
case of redemption, on the redemption date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
SECTION 6.09 RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
SECTION 6.10 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in Section 2.08, no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not, to the extent permitted by law, prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 6.11 DELAY OR OMISSION NOT WAIVER. No delay or omission of the
Trustee or of any Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
SECTION 6.12 CONTROL BY HOLDERS. The Holders of a majority in principal
amount of the outstanding Securities of any Series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such Series, provided that:
(a) such direction shall not be in conflict with any rule of law or
with this Indenture,
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(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.01, the Trustee shall
have the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability.
SECTION 6.13 WAIVER OF PAST DEFAULTS. The Holders of not less than a
majority in principal amount of the outstanding Securities of any Series may on
behalf of the Holders of all the Securities of such Series waive any past
Default hereunder with respect to such Series and its consequences, except a
Default (i) in the payment of the principal of or interest on any Security of
such Series (provided, however, that the Holders of a majority in principal
amount of the outstanding Securities of any Series may rescind an acceleration
and its consequences, including any related payment default that resulted from
such acceleration) or (ii) in respect of a covenant or provision hereof which
cannot be modified or amended 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 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 6.14 UNDERTAKING FOR COSTS. All parties to this Indenture agree,
and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the outstanding Securities of any Series,
or to any suit instituted by any Holder for the enforcement of the payment of
the principal of or interest on any Security on or after the Stated Maturity or
Stated Maturities expressed in such Security (or, in the case of redemption, on
the redemption date).
ARTICLE VII
TRUSTEE
SECTION 7.01 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of such person's
own affairs.
(b) Except during the continuance of an Event of Default:
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(i) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others.
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon Officers' Certificates or Opinions of Counsel
furnished to the Trustee and conforming to the requirements of this Indenture;
however, in the case of any such Officers' Certificates or Opinions of Counsel
which by any provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such Officers' Certificates and Opinions of
Counsel to determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b)
of this Section.
(ii) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it with respect to Securities
of any Series in good faith in accordance with the direction of the Holders of a
majority in principal amount of the outstanding Securities of such Series
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon
the Trustee, under this Indenture with respect to the Securities of such Series.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraph (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right
or power at the request or direction of any Holder unless it receives indemnity
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.
(g) No provision of this Indenture shall require the Trustee to risk
its own funds or otherwise incur any financial liability in the performance of
any of its duties, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk is not reasonably assured to it.
(h) The Paying Agent, the Registrar and any Service Agent or
authenticating agent shall be entitled to the protections, immunities and
standard of care as are set forth in paragraphs (a), (b) and (c) of this Section
with respect to the Trustee.
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SECTION 7.02 RIGHTS OF TRUSTEE.
(a) The Trustee may rely on and shall be protected in acting or
refraining from acting upon 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. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such Officers' Certificate.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care. No
Depository shall be deemed an agent of the Trustee, and the Trustee shall not be
responsible for any act or omission by any Depository.
(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, provided that the Trustee's conduct does not constitute negligence or
bad faith.
(e) The Trustee may consult with counsel, and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
without negligence and in good faith and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Securities unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction.
(g) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit.
(h) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities generally or the Securities of a
particular Series and this Indenture.
(i) The permissive rights of the Trustee enumerated herein shall not
be construed as duties.
SECTION 7.03 INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities and may
otherwise deal with the
24
Company or an Affiliate of the Company with the same rights it would have if it
were not Trustee. Any Agent may do the same with like rights. The Trustee is
also 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, and it
shall not be responsible for any statement in the Securities other than its
authentication.
SECTION 7.05 NOTICE OF DEFAULTS. If a Default or Event of Default occurs
and is continuing with respect to the Securities of any Series and if it is
known to a Responsible Officer of the Trustee, the Trustee shall mail to each
Holder of the Securities of that Series and, if any Bearer Securities are
outstanding, publish on one occasion in an Authorized Newspaper, notice of a
Default or Event of Default within 90 days after it occurs or, if later, after a
Responsible Officer of the Trustee has knowledge of such Default or Event of
Default. Except in the case of a Default or Event of Default in payment of
principal of or interest on any Security of any Series, the Trustee may withhold
the notice if and so long as its corporate trust committee or a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of Holders of that Series.
SECTION 7.06 REPORTS BY TRUSTEE TO HOLDERS. Within 60 days after May 15 in
each year, the Trustee shall transmit by mail to all Holders, as their names and
addresses appear on the register kept by the Registrar and, if any Bearer
Securities are outstanding, publish in an Authorized Newspaper, a brief report
dated as of such May 15, in accordance with, and to the extent required under,
TIA Section 313. A copy of each report at the time of its mailing to Holders of
any Series shall be filed with the SEC and each stock exchange on which the
Securities of that Series are listed. The Company shall promptly notify the
Trustee when Securities of any Series are listed on any stock exchange.
SECTION 7.07 COMPENSATION AND INDEMNITY. The Company shall pay to the
Trustee from time to time compensation for its services as the Company and the
Trustee shall from time to time agree upon in writing. The Trustee's
compensation shall not be limited by any law on compensation of a trustee of an
express trust. The Company shall reimburse the Trustee upon request for all
reasonable out-of-pocket expenses incurred by it. Such expenses shall include
the reasonable compensation and expenses of the Trustee's agents and counsel.
The Company shall indemnify each of the Trustee and any predecessor Trustee
(including the cost of defending itself) against any loss, liability or expense,
including taxes (other than taxes based upon, measured by or determined by the
income of the Trustee) incurred by it except as set forth in this Section 7.07
in the performance of its duties under this Indenture as Trustee or Agent. 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 one 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, which consent shall not be unreasonably
withheld. This indemnification shall apply to officers, directors, employees,
shareholders and agents of the Trustee. The Company need not reimburse any
expense or indemnify against any loss or liability incurred by the Trustee or by
any officer, director, employee, shareholder or agent of the Trustee through the
negligence or bad faith of
25
any such persons. To secure the Company's payment obligations in this Section,
the Trustee shall have a lien prior to the Securities of any Series on all money
or property held or collected by the Trustee, except that held in trust to pay
principal of and interest on particular Securities of that Series. When the
Trustee incurs expenses or renders services after an Event of Default specified
in Section 6.01(d) or (e) occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under any
Bankruptcy Law. The provisions of this Section shall survive the resignation or
removal of the Trustee and the termination of this Indenture.
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.
The Trustee may resign with respect to the Securities of one or more Series by
so notifying the Company at least 30 days prior to the date of the proposed
resignation. The Holders of a majority in principal amount of the Securities of
any Series may remove the Trustee with respect to that Series by so notifying
the Trustee and the Company. The Company may remove the Trustee with respect to
Securities of one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
If a successor Trustee with respect to the Securities of any one or more
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 a
majority in principal amount of the Securities of the applicable Series may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after that, the retiring
Trustee shall transfer all property held by it as Trustee to the successor
Trustee subject to the lien provided for in Section 7.07, 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 Trustee with respect
to each Series of Securities for which it is acting as Trustee under this
Indenture. A successor Trustee shall mail a notice of its succession to each
Holder of each such Series and, if any Bearer Securities are outstanding,
publish such notice on one occasion in an Authorized Newspaper. Notwithstanding
replacement of the Trustee pursuant to this Section 7.08, the Company's
obligations under Section 7.07 hereof shall continue for the benefit of the
retiring Trustee with respect to expenses and liabilities incurred by it prior
to the date of such replacement.
26
SECTION 7.09 SUCCESSOR TRUSTEE BY MERGER, ETC. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its
corporate trust business to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
SECTION 7.10 ELIGIBILITY; DISQUALIFICATION. This Indenture shall always
have a Trustee who satisfies the requirements of TIA Section 310(a)(1), (2) and
(5). The Trustee shall comply with TIA Section 310(b).
SECTION 7.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee is subject to 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.
ARTICLE VIII
SATISFACTION AND DISCHARGE; DEFEASANCE
SECTION 8.01 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Order cease to be of further effect
(except as hereinafter provided in this Section 8.01), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) any of the following shall have occurred:
(i) no Securities have been issued hereunder;
(ii) all Securities theretofore authenticated and delivered
(other than Securities that have been destroyed, lost or stolen and that have
been replaced or paid) have been delivered to the Trustee for cancellation; or
(iii) all such Securities not theretofore delivered to the
Trustee for cancellation (1) have become due and payable, or (2) will become due
and payable at their Stated Maturity within one year, or (3) 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 trust funds in trust an amount sufficient for the purpose of paying
and discharging the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal and interest to the
date of such deposit (in the case of Securities which have become due and
payable on or prior to the date of such deposit) or to the Stated Maturity or
redemption date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
27
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.07 and, if money shall
have been deposited with the Trustee pursuant to clause (a) of this Section, the
provisions of Sections 2.04, 2.05, 2.07, 2.08, 8.01, 8.02 and 8.05 shall
survive.
SECTION 8.02 APPLICATION OF TRUST FUNDS; INDEMNIFICATION.
(a) Subject to the provisions of Section 8.05, all money deposited
with the Trustee pursuant to Section 8.01, all money and U.S. Government
Obligations or Foreign Government Obligations deposited with the Trustee
pursuant to Section 8.03 or 8.04 and all money received by the Trustee in
respect of U.S. Government Obligations or Foreign Government Obligations
deposited with the Trustee pursuant to Section 8.03 or 8.04, shall be held in
trust and applied by it, in accordance with the provisions of the Securities and
this Indenture, to the payment, either directly or through any Paying Agent
(other than the Company acting as its own Paying Agent) as the Trustee may
determine, to the persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with or received by the Trustee or
analogous payments as contemplated by Sections 8.03 or 8.04.
(b) The Company shall pay and shall indemnify the Trustee against
any tax, fee or other charge imposed on or assessed against U.S. Government
Obligations or Foreign Government Obligations deposited pursuant to Sections
8.03 or 8.04 or the interest and principal received in respect of such
obligations other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to
time upon Company Request any U.S. Government Obligations or Foreign Government
Obligations or money held by it as provided in Sections 8.03 or 8.04 which, in
the opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the
Trustee, are then in excess of the amount thereof which then would have been
required to be deposited for the purpose for which such U.S. Government
Obligations or Foreign Government Obligations or money were deposited or
received. This provision shall not authorize the sale by the Trustee of any U.S.
Government Obligations or Foreign Government Obligations held under this
Indenture.
SECTION 8.03 LEGAL DEFEASANCE OF SECURITIES OF ANY SERIES. Unless this
Section 8.03 is otherwise specified, pursuant to Section 2.02(s), to be
inapplicable to Securities of any Series, the Company shall be deemed to have
paid and discharged the entire indebtedness on all the outstanding Securities of
any Series on the 91st day after the date of the deposit referred to in
subparagraph (d) hereof, and the provisions of this Indenture, as it relates to
such outstanding Securities of such Series, shall no longer be in effect (and
the Trustee, at the expense of the
28
Company, shall, at Company Request, execute proper instruments acknowledging the
same), except as to:
(a) the rights of Holders of Securities of such Series to receive,
from the trust funds described in subparagraph (d) hereof, (i) payment of the
principal of and each installment of principal of and interest on the
outstanding Securities of such Series on the Stated Maturity of such principal
or installment of principal or interest, and (ii) the benefit of any mandatory
sinking fund payments applicable to the Securities of such Series on the day on
which such payments are due and payable in accordance with the terms of this
Indenture and the Securities of such Series; and
(b) the provisions of Sections 2.04, 2.05, 2.07, 2.08, 8.02, 8.03
and 8.05; and
(c) the rights, powers, trust and immunities of the Trustee
hereunder;
provided that, the following conditions shall have been satisfied:
(d) with reference to this Section 8.03, the Company shall have
deposited or caused to be irrevocably deposited (except as provided in Section
8.02(c)) 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 such Securities (i) in the case of Securities of
such Series denominated in Dollars, cash in Dollars and/or U.S. Government
Obligations, or (ii) in the case of Securities of such Series denominated in a
Foreign Currency (other than a composite currency), money and/or Foreign
Government Obligations, which through the payment of interest and principal in
respect thereof in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such Trustee), not
later than one day before the due date of any payment of money, an amount in
cash, sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge each installment of principal of and interest, if
any, on and any mandatory sinking fund payments in respect of all the Securities
of such Series on the dates such installments of interest or principal and such
sinking fund payments are due;
(e) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(f) 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 or
during the period ending on the 91st day after such date;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling, or (ii) since the date of execution of this Indenture, there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel shall confirm that, the Holders
of the Securities of such Series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on
29
the same amounts and in the same manner and at the same times as would have been
the case if such deposit, defeasance and discharge had not occurred;
(h) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders of the Securities of such Series over any other
creditors of the Company or with the intent of defeating, hindering, delaying or
defrauding any other creditors of the Company;
(i) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this Section
have been complied with; and
(j) such defeasance shall not result in the trust arising from such
deposit constituting an investment company within the meaning of the Investment
Company Act of 1940, as amended, unless such trust shall be registered under
such Act or exempt from registration thereunder.
SECTION 8.04 COVENANT DEFEASANCE. Unless this Section 8.04 is otherwise
specified, pursuant to Section 2.02(s), to be inapplicable to Securities of any
Series, on and after the 91st day after the date of the deposit referred to in
subparagraph (a) hereof, the Company may omit to comply with respect to the
Securities of any Series with any term, provision or condition set forth under
Sections 4.02, 4.03, and 5.01 as well as any additional covenants specified in a
supplemental indenture for such Series of Securities or a Board Resolution or an
Officers' Certificate delivered pursuant to Section 2.02 (and the failure to
comply with any such covenants shall not constitute a Default or Event of
Default with respect to such Series under Section 6.01) and the occurrence of
any event specified in a supplemental indenture for such Series of Securities or
a Board Resolution or an Officers' Certificate delivered pursuant to Section
2.02 and designated as an Event of Default shall not constitute a Default or
Event of Default hereunder, with respect to the Securities of such Series,
provided that the following conditions shall have been satisfied:
(a) with reference to this Section 8.04, the Company has deposited
or caused to be irrevocably deposited (except as provided in Section 8.02(c))
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 such Securities (i) in the case of Securities of such
Series denominated in Dollars, cash in Dollars and/or U.S. Government
Obligations, or (ii) in the case of Securities of such Series denominated in a
Foreign Currency (other than a composite currency), money and/or Foreign
Government Obligations, which through the payment of interest and principal in
respect thereof in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such Trustee), not
later than one day before the due date of any payment of money, an amount in
cash, sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge each installment of principal of
and interest, if any, on and any mandatory sinking fund payments in respect of
the Securities of such Series on the dates such installments of interest or
principal and such sinking fund payments are due;
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(b) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other agreement or instrument
to which the Company is a party or by which it is bound;
(c) 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 or
during the period ending on the 91st day after such date;
(d) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that Holders of the Securities of such Series will not
recognize income, gain or loss for federal income tax purposes as a result of
such deposit and covenant defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would have been
the case if such deposit and covenant defeasance had not occurred;
(e) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the covenant defeasance contemplated
by this Section have been complied with; and
(f) Such defeasance shall not result in the trust arising from such
deposit constituting an investment company within the meaning of the Investment
Company Act of 1940, as amended, unless such trust shall be registered under
such Act or exempt from registration thereunder.
SECTION 8.05 REPAYMENT TO COMPANY. The Trustee and the Paying Agent shall
pay to the Company upon written request any money held by them for the payment
of principal and interest that remains unclaimed for two years, and after such
time, Holders entitled to the money must look to the Company for payment as
general creditors unless an applicable abandoned property law designates another
person.
SECTION 8.06 REINSTATEMENT. If the Trustee or the Paying Agent is unable
to apply any money 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 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 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 held by the Trustee or the Paying Agent.
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ARTICLE IX
AMENDMENTS AND WAIVERS
SECTION 9.01 WITHOUT CONSENT OF HOLDERS. The Company and the Trustee may
amend or supplement this Indenture or the Securities of one or more Series
without the consent of any Holder:
(a) to evidence the succession of another person to the Company
under this Indenture and the Securities and the assumption by any such successor
person of the obligations of the Company hereunder and under the Securities;
(b) to add or remove 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 for the benefit of such series) or to surrender any
right or power herein conferred upon the Company provided such action does not
adversely affect the interests of the Company;
(c) to add any additional Events of Default;
(d) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal, and
with or without interest coupons, or to permit or facilitate the issuance of
Securities in uncertificated form;
(e) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any such
addition, change or elimination (A) shall neither (i) apply to any Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (ii) modify the rights of the
Holder of any such Security with respect to such provision or (B) shall become
effective only when there is no such Security Outstanding;
(f) to establish the forms or terms of the Securities of any series
issued pursuant to the terms hereof;
(g) to cure any ambiguity or correct any inconsistency in this
Indenture;
(h) 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;
(i) to qualify this Indenture under the Trust Indenture Act;
(j) to provide for uncertificated securities in addition to
certificated securities;
(k) to supplement any provisions of this Indenture necessary to
permit or facilitate the defeasance and discharge of any series of Securities,
provided that such action does
32
not adversely affect the interests of the Holders of Securities of such series
or any other series; and
(l) to comply with the rules or regulations of any securities
exchange or automated quotation system on which any of the Securities may be
listed or traded.
SECTION 9.02 WITH CONSENT OF HOLDERS. The Company and the Trustee may
enter into a supplemental indenture with the written consent of the Holders of
at least a majority in principal amount of the outstanding Securities of each
Series affected by such supplemental indenture (including consents obtained in
connection with a tender offer or exchange offer for the Securities of such
Series), for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of each such
Series. Except as provided in Section 6.13, the Holders of at least a majority
in principal amount of the outstanding Securities of any Series by notice to the
Trustee (including consents obtained in connection with a tender offer or
exchange offer for the Securities of such Series) may waive compliance by the
Company with any provision of this Indenture or the Securities with respect to
such Series. It shall not be necessary for the consent of the Holders of
Securities under this Section 9.02 to approve the particular form of any
proposed supplemental indenture or waiver, but it shall be sufficient if such
consent approves the substance thereof. After a supplemental indenture or waiver
under this section becomes effective, the Company shall mail to the Holders of
Securities affected thereby and, if any Bearer Securities affected thereby are
outstanding, publish on one occasion in an Authorized Newspaper, a notice
briefly describing the supplemental indenture or waiver. Any failure by the
Company to mail or publish such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture or waiver.
SECTION 9.03 LIMITATIONS. Without the consent of each Holder affected, an
amendment or waiver may not:
(a) reduce the amount of Securities whose Holders must consent to an
amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment of interest
(including default interest) on any Security;
(c) reduce the principal or change the Stated Maturity of any
Security or reduce the amount of, or postpone the date fixed for, the payment of
any sinking fund or analogous obligation;
(d) reduce the principal amount of Discount Securities payable upon
acceleration of the maturity thereof;
(e) waive a Default or Event of Default in the payment of the
principal of or interest, if any, on any Security (except a rescission of
acceleration of the Securities of any Series by the Holders of at least a
majority in principal amount of the outstanding Securities of such Series and a
waiver of the payment default that resulted from such acceleration);
33
(f) make the principal of or interest, if any, on any Security
payable in any currency other than that stated in the Security;
(g) make any change in Sections 6.08, 6.13, or 9.03; or
(h) waive a redemption payment with respect to any Security.
SECTION 9.04 COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment to this
Indenture or the Securities of one or more Series shall be set forth in a
supplemental indenture hereto that complies with the TIA as then in effect.
SECTION 9.05 REVOCATION AND EFFECT OF CONSENTS. Until an amendment is set
forth in a supplemental indenture or a waiver becomes effective, a consent to it
by a Holder of a Security 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 Security or portion of a Security if the Trustee receives
the notice of revocation before the date of the supplemental indenture or the
date the waiver becomes effective. Any amendment or waiver once effective shall
bind every Holder of each Series affected by such amendment or waiver unless it
is of the type described in any of clauses (a) through (h) of Section 9.03. In
that case, the amendment or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a
Security that evidences the same debt as the consenting Holder's Security.
SECTION 9.06 NOTATION ON OR EXCHANGE OF SECURITIES. The Trustee may place
an appropriate notation about an amendment or waiver on any Security of any
Series thereafter authenticated. The Company in exchange for Securities of that
Series may issue and the Trustee shall authenticate upon request new Securities
of that Series that reflect the amendment or waiver.
SECTION 9.07 TRUSTEE PROTECTED. In executing, or accepting the additional
trusts created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trusts created by this Indenture, the Trustee shall
be entitled to receive, in addition to the documents required by Section 10.04,
and (subject to Section 7.01) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee shall sign all
supplemental indentures, except that the Trustee need not sign any supplemental
indenture that adversely affects its rights.
ARTICLE X
MISCELLANEOUS
SECTION 10.01 TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required or deemed to be included in this Indenture by the TIA, such required or
deemed provision shall control.
SECTION 10.02 NOTICES.
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(a) Any notice or communication by the Company or the Trustee to the
other, or by a Holder to the Company or the Trustee, is duly given if in writing
and delivered in person or mailed by first-class mail or sent by telecopier
transmission addressed as follows:
if to the Company:
Maritrans Inc.
Two Harbour Place
000 Xxxxxxx Xxx Xxxxxx
Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attention: Corporate Secretary
Telephone: 000.000.0000
Facsimile:
if to the Trustee:
[ ]
(b) The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications. Any
notice or communication to a Holder shall be mailed by first-class mail to his
address shown on the register kept by the Registrar and, if any Bearer
Securities are outstanding, published in an Authorized Newspaper. Failure to
mail a notice or communication to a Holder of any Series or any defect in it
shall not affect its sufficiency with respect to other Holders of that or any
other Series. If a notice or communication is mailed or published in the manner
provided above, within the time prescribed, it is duly given, whether or not the
Holder receives it. 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.
(c) Any notice or demand that by any provision of this Indenture is
required or permitted to be given or served by the Company may, at the Company's
written request received by the Trustee not fewer than five (5) Business Days
prior (or such shorter period of time as may be acceptable to the Trustee) to
the date on which such notice must be given or served, be given or served by the
Trustee in the name of and at the expense of the Company.
SECTION 10.03 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS. Holders of any
Series may communicate pursuant to TIA Section 312(b) with other Holders of that
Series or any other Series with respect to their rights under this Indenture or
the Securities of that Series or all Series. The Company, the Trustee, the
Registrar and anyone else shall have the protection of TIA Section 312(c).
SECTION 10.04 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon any
request or application by the Company to the Trustee to take any action under
this Indenture, the Company shall furnish to the Trustee:
35
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.05 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than a certificate provided pursuant to
TIA Section 314(a)(4)) shall comply with the provisions of TIA Section 314(e)
and shall include:
(a) a statement that the person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
SECTION 10.06 RULES BY TRUSTEE AND AGENTS. The Trustee may make reasonable
rules for action by or a meeting of Holders of one or more Series. Any Agent may
make reasonable rules and set reasonable requirements for its functions.
SECTION 10.07 LEGAL HOLIDAYS. Unless otherwise provided by Board
Resolution, Officers' Certificate or supplemental indenture hereto for a
particular Series, a "Legal Holiday" is any day that is not a Business Day. 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 10.08 NO RECOURSE AGAINST OTHERS. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Securities.
SECTION 10.09 COUNTERPARTS. This Indenture may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
36
SECTION 10.10 GOVERNING LAWS. This Indenture and the Securities will be
governed by, and construed in accordance with, the internal laws of the State of
New York, without regard to conflict of law principles that would result in the
application of any law other than the laws of the State of New York.
SECTION 10.11 NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This
Indenture may not be used to interpret another indenture, loan or debt agreement
of the Company or a Subsidiary of the Company. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 10.12 SUCCESSORS. All agreements of the Company in this Indenture
and the Securities shall bind its successor. All agreements of the Trustee in
this Indenture shall bind its successor.
SECTION 10.13 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 not in any way be
affected or impaired thereby.
SECTION 10.14 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 10.15 SECURITIES IN A FOREIGN CURRENCY. Unless otherwise specified
in a Board Resolution, a supplemental indenture hereto or an Officers'
Certificate delivered pursuant to Section 2.02 of this Indenture with respect to
a particular Series of Securities, whenever for purposes of this Indenture any
action may be taken by the Holders of a specified percentage in aggregate
principal amount of Securities of all Series or all Series affected by a
particular action at the time outstanding and, at such time, there are
outstanding Securities of any Series which are denominated in a coin or currency
other than Dollars, then the principal amount of Securities of such Series which
shall be deemed to be outstanding for the purpose of taking such action shall be
that amount of Dollars that could be obtained for such amount at the Market
Exchange Rate at such time. For purposes of this Section 10.15, "Market Exchange
Rate" shall mean the noon Dollar buying rate in New York City for cable
transfers of that currency as published by the Federal Reserve Bank of New York.
If such Market Exchange Rate is not available for any reason with respect to
such currency, the Trustee shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York as
of the most recent available date, or quotations from one or more major banks in
The City of New York or in the country of issue of the currency in question or
such other quotations as the Trustee, upon consultation with the Company, shall
deem appropriate. The provisions of this paragraph shall apply in determining
the equivalent principal amount in respect of Securities of a Series denominated
in currency other than Dollars in connection with any action taken by Holders of
Securities pursuant to the terms of this Indenture. All decisions and
determinations of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in
its sole discretion and shall, in the absence of manifest error, to the extent
permitted by law, be conclusive for all purposes and irrevocably binding upon
the Company and all Holders.
37
SECTION 10.16 JUDGMENT CURRENCY. The Company agrees, to the fullest extent
that it may effectively do so under applicable law, that (a) if for the purpose
of obtaining judgment in any court it is necessary to convert the sum due in
respect of the principal of or interest or other amount on the Securities of any
Series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
day on which final unappealable judgment is entered, unless such day is not a
New York Banking Day, then the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the New
York Banking Day preceding the day on which final unappealable judgment is
entered and (b) its obligations under this Indenture to make payments in the
Required Currency (i) shall not be discharged or satisfied by any tender, any
recovery pursuant to any judgment (whether or not entered in accordance with
subsection (a)), in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the actual receipt, by the
payee, of the full amount of the Required Currency expressed to be payable in
respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required
Currency the amount, if any, by which such actual receipt shall fall short of
the full amount of the Required Currency so expressed to be payable, and (iii)
shall not be affected by judgment being obtained for any other sum due under
this Indenture. For purposes of the foregoing, "New York Banking Day" means any
day except a Saturday, Sunday or a legal holiday in The City of New York on
which banking institutions are authorized or required by law, regulation or
executive order to close.
ARTICLE XI
SINKING FUNDS
SECTION 11.01 APPLICABILITY OF ARTICLE. The provisions of this Article
shall be applicable to any sinking fund for the retirement of the Securities of
a Series, except as otherwise permitted or required by any form of Security of
such Series issued pursuant to this Indenture. The minimum amount of any sinking
fund payment provided for by the terms of the Securities of any Series is herein
referred to as a "mandatory sinking fund payment" and any other amount provided
for by the terms of Securities of such Series is herein referred to as an
"optional sinking fund payment." If provided for 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 11.02. Each sinking fund payment shall be
applied to the redemption of Securities of any Series as provided for by the
terms of the Securities of such Series.
SECTION 11.02 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES. The
Company may, in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of any Series to be made pursuant to the terms of such
Securities (1) deliver outstanding Securities of such Series to which such
sinking fund payment is applicable (other than any of such Securities previously
called for mandatory sinking fund redemption) and (2) apply as credit Securities
of such Series to which such sinking fund payment is applicable and which have
been repurchased by the Company or redeemed either at the election of the
Company pursuant to the terms of such Series of Securities (except pursuant to
any mandatory sinking fund) or through the application of permitted optional
sinking fund payments or other optional redemptions
38
pursuant to the terms of such Securities, provided that such Securities have not
been previously so credited. Such Securities shall be received by the Trustee,
together with an Officers' Certificate with respect thereto, not later than 15
days prior to the date on which the Trustee begins the process of selecting
Securities for redemption, and shall be credited for such purpose by the Trustee
at the 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. If as a result of the delivery or credit of Securities in lieu of
cash payments pursuant to this Section 11.02, the principal amount of Securities
of such Series to be redeemed in order to exhaust the aforesaid cash payment
shall be less than $100,000, the Trustee need not call Securities of such Series
for redemption, except upon receipt of a Company Order that such action be
taken, and such cash payment shall be held by the Trustee or a Paying Agent and
applied to the next succeeding sinking fund payment, provided, however, that the
Trustee or such Paying Agent shall from time to time upon receipt of a Company
Order pay over and deliver to the Company any cash payment so being held by the
Trustee or such Paying Agent upon delivery by the Company to the Trustee of
Securities of that Series purchased by the Company having an unpaid principal
amount equal to the cash payment required to be released to the Company.
SECTION 11.03 REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than 45
days (unless otherwise indicated in the Board Resolution, supplemental indenture
or Officers' Certificate in respect of a particular Series of Securities) prior
to each sinking fund payment date for any Series of Securities, the Company will
deliver to the Trustee an Officers' Certificate specifying the amount of the
next ensuing mandatory sinking fund payment for that Series pursuant to the
terms of that Series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting of Securities of that Series pursuant to Section 11.02,
and the optional amount, if any, to be added in cash to the next ensuing
mandatory sinking fund payment, and the Company shall thereupon be obligated to
pay the amount therein specified. Not less than 30 days (unless otherwise
indicated in the Board Resolution, Officers' Certificate or supplemental
indenture in respect of a particular Series of Securities) 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 3.02 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 3.03. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 3.04, 3.05 and 3.06.
39
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed and attested, all as of the day and year first above written.
MARITRANS INC.
By:____________________________________
Name:
Title:
[____________________________],
as Trustee,st
By:____________________________________
Name:
Title:
40
