Exhibit 4.3
ABRAXAS PETROLEUM CORPORATION
ISSUER
AND
------------------------------------------
TRUSTEE
----------------
INDENTURE
DATED AS OF _______, 20__
----------------
SENIOR DEBT SECURITIES
(ISSUABLE IN SERIES)
4207107v.3
ABRAXAS PETROLEUM CORPORATION
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF ________, 20__
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
------------------------------------ ------------------------
Sec. 310 (a)(1) 6.09
(a)(2) 6.09
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 6.08, 6.10
Sec. 311 (a) 6.13
(b) 6.13
(c) Not Applicable
Sec. 312 (a) 7.01, 7.02(a)
(b) 7.02(b)
(c) 7.02(b)
Sec. 313 (a) 7.03(a)
(b) 7.03(a)
(c) 7.03(a)
(d) 7.03(b)
Sec. 314 (a) 7.04, 10.05
(b) Not Applicable
(c)(1) 1.03
(c)(2) 1.03
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.03
Sec. 315 (a) 6.01(a)
(b) 6.02
(c) 6.01(b)
(d) 6.01(c)
(d)(1) 6.01(a)(1)
(d)(2) 6.01(c)(2)
(d)(3) 6.01(c)(3)
(e) 5.14
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
------------------------------------ ------------------------
Sec. 316 (a)(1)(A) 5.02, 5.12
(a)(1)(B) 5.13
(a)(2) Not Applicable
(a) last sentence 1.01
(b) 5.08
Sec. 317 (a)(1) 5.03
(a)(2) 5.04
(b) 10.03
Sec. 318 (a) 1.08
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
iv
TABLE OF CONTENTS
PAGE
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION................................1
Section 1.01. Definitions............................................................................1
Section 1.02. Incorporation by Reference of Trust Indenture Act......................................8
Section 1.03. Compliance Certificates and Opinions...................................................9
Section 1.04. Form of Documents Delivered to Trustee.................................................9
Section 1.05. Acts of Holders; Record Dates.........................................................10
Section 1.06. Notices, Etc., to Trustee and Company.................................................11
Section 1.07. Notice to Holders; Waiver.............................................................12
Section 1.08. Conflict With Trust Indenture Act.....................................................12
Section 1.09. Effect of Headings and Table of Contents..............................................12
Section 1.10. Successors and Assigns................................................................12
Section 1.11. Separability Clause...................................................................13
Section 1.12. Benefits of Indenture.................................................................13
Section 1.13. Governing Law.........................................................................13
Section 1.14. Legal Holidays........................................................................13
Section 1.15. Corporate Obligation..................................................................13
Section 1.16. No Adverse Interpretation of Other Agreements.........................................13
ARTICLE TWO SECURITY FORMS........................................................................14
Section 2.01. Forms Generally.......................................................................14
Section 2.02. Form of Trustee's Certificate of Authentication.......................................14
Section 2.03. Securities Issuable in the Form of a Global Security..................................14
ARTICLE THREE THE SECURITIES........................................................................17
Section 3.01. Amount Unlimited; Issuable in Series..................................................17
Section 3.02. Denominations.........................................................................20
Section 3.03. Execution, Authentication, Delivery and Dating........................................20
Section 3.04. Temporary Securities..................................................................22
Section 3.05. Registration, Registration of Transfer and Exchange...................................22
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities......................................24
Section 3.07. Payment of Interest; Interest Rights Preserved........................................24
Section 3.08. Persons Deemed Owners.................................................................26
Section 3.09. Cancellation..........................................................................26
Section 3.10. Computation of Interest...............................................................26
Section 3.11. CUSIP Numbers.........................................................................26
ARTICLE FOUR SATISFACTION AND DISCHARGE............................................................27
Section 4.01. Satisfaction and Discharge of Indenture...............................................27
Section 4.02. Application of Trust Money............................................................28
ARTICLE FIVE REMEDIES..............................................................................30
Section 5.01. Events of Default.....................................................................30
Section 5.02. Acceleration of Maturity; Rescission and Annulment....................................32
i
Section 5.03. Collection of Indebtedness and Suits for
Enforcementby Trustee.................................................................33
Section 5.04. Trustee May File Proofs of Claim......................................................34
Section 5.05. Trustee May Enforce Claims Without Possession of
Securities or Coupons.................................................................34
Section 5.06. Application of Money Collected........................................................35
Section 5.07. Limitation on Suits...................................................................35
Section 5.08. Unconditional Right of Holders to Receive Principal,
Premium and Interest..................................................................36
Section 5.09. Restoration of Rights and Remedies....................................................36
Section 5.10. Rights and Remedies Cumulative........................................................36
Section 5.11. Delay or Omission Not Waiver..........................................................37
Section 5.12. Control by Holders....................................................................37
Section 5.13. Waiver of Past Defaults...............................................................37
Section 5.14. Undertaking for Costs.................................................................38
Section 5.15. Waiver of Stay or Extension Laws......................................................38
ARTICLE SIX THE TRUSTEE...........................................................................38
Section 6.01. Certain Duties and Responsibilities...................................................38
Section 6.02. Notice of Defaults....................................................................40
Section 6.03. Certain Rights of Trustee.............................................................40
Section 6.04. Not Responsible for Recitals or Issuance of Securities................................41
Section 6.05. May Hold Securities...................................................................41
Section 6.06. Money Held in Trust...................................................................42
Section 6.07. Compensation and Reimbursement........................................................42
Section 6.08. Disqualification; Conflicting Interests...............................................43
Section 6.09. Corporate Trustee Required; Eligibility...............................................43
Section 6.10. Resignation and Removal; Appointment of Successor.....................................43
Section 6.11. Acceptance of Appointment by Successor................................................45
Section 6.12. Merger, Conversion, Consolidation or Succession
to Business...........................................................................46
Section 6.13. Preferential Collection of Claims Against Company.....................................46
Section 6.14. Appointment of Authenticating Agent...................................................46
ARTICLE SEVEN HOLDER'S LISTS AND REPORTS BY TRUSTEEAND COMPANY......................................48
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders.............................48
Section 7.02. Preservation of Information; Communications to Holders................................48
Section 7.03. Reports by Trustee....................................................................49
Section 7.04. Reports by Company....................................................................49
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE..................................50
Section 8.01. Company May Consolidate, Etc., Only on Certain Terms..................................50
Section 8.02. Successor Person Substituted..........................................................50
ii
ARTICLE NINE SUPPLEMENTAL INDENTURES...............................................................51
Section 9.01. Supplemental Indentures Without Consent of Holders....................................51
Section 9.02. Supplemental Indentures With Consent of Holders.......................................52
Section 9.03. Execution of Supplemental Indentures..................................................53
Section 9.04. Effect of Supplemental Indentures.....................................................54
Section 9.05. Conformity With Trust Indenture Act...................................................54
Section 9.06. Reference in Securities to Supplemental Indentures....................................54
ARTICLE TEN COVENANTS.............................................................................54
Section 10.01. Payment of Principal, Premium and Interest............................................54
Section 10.02. Maintenance of Office or Agency.......................................................54
Section 10.03. Money for Securities Payments to be Held in Trust.....................................55
Section 10.04. Existence.............................................................................56
Section 10.05. Statement by Officers as to Default...................................................56
Section 10.06. Waiver of Certain Covenants...........................................................57
Section 10.07. Additional Amounts....................................................................57
ARTICLE ELEVEN REDEMPTION OF SECURITIES..............................................................58
Section 11.01. Applicability of Article..............................................................58
Section 11.02. Election to Redeem; Notice to Trustee.................................................58
Section 11.03. Selection by Trustee of Securities to be Redeemed.....................................58
Section 11.04. Notice of Redemption..................................................................59
Section 11.05. Deposit of Redemption Price...........................................................60
Section 11.06. Securities Payable on Redemption Date.................................................60
Section 11.07. Securities Redeemed in Part...........................................................60
ARTICLE TWELVE SINKING FUNDS.........................................................................61
Section 12.01. Applicability of Article..............................................................61
Section 12.02. Satisfaction of Sinking Fund Payments with Securities.................................61
Section 12.03. Redemption of Securities for Sinking Fund.............................................61
ARTICLE THIRTEEN LEGAL DEFEASANCE AND COVENANT DEFEASANCE..............................................62
Section 13.01. Company's Option to Effect Legal Defeasance or Covenant Defeasance....................62
Section 13.02. Legal Defeasance and Discharge........................................................62
Section 13.03. Covenant Defeasance...................................................................62
Section 13.04. Conditions to Legal Defeasance or Covenant Defeasance.................................63
Section 13.05. Deposited Money and Government Obligations to be Held in
Trust; Other Miscellaneous Provisions...............................................64
Section 13.06. Reinstatement.........................................................................65
Section 13.07. Deposited Money and Government Obligations to be Held in Trust........................65
ARTICLE FOURTEEN MEETINGS OF HOLDERS OF SECURITIES.....................................................65
Section 14.01. Purposes for Which Meetings May Be Called.............................................65
Section 14.02. Call, Notice and Place of Meetings....................................................65
iii
Section 14.03. Persons Entitled to Vote at Meetings..................................................66
Section 14.04. Quorum; Action........................................................................66
Section 14.05. Determination of Voting Rights; Conduct and Adjournment of Meetings...................67
Section 14.06. Counting Votes and Recording Action of Meetings.......................................67
iv
INDENTURE, dated as of ______________ ________, 20_____, between ABRAXAS
PETROLEUM CORPORATION, a corporation duly organized and existing under the laws
of the State of Nevada (herein called the "Company"), having its principal
office at 000 X. Xxxx 0000 Xxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxx, 00000, and
_______________________, [a national banking association duly organized and
existing under the laws of the United States of America], as Trustee (herein
called the "Trustee"), the office of the Trustee at which at the date hereof its
corporate trust business is principally administered being
___________________________________, Attention: ----------------------------- .
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as provided in this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act and
the rules and regulations of the Commission promulgated thereunder that are
required to be part of this Indenture and, to the extent applicable, shall be
governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.
Section 1.01. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(1) the terms defined in this Article One have the meanings assigned to
them in this Article One and include the plural as well as the singular;
(2) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with GAAP;
(3) the words "herein," "hereof" and "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
1
(4) the masculine gender includes the feminine and the neuter;
(5) provisions apply to successive events and transaction;
(6) a reference herein to any agreement or instrument refers to such
agreement or instrument (together with any schedule or exhibit attached thereto)
as it may have been, or may hereafter be amended, modified, supplemented, waived
or restated from time to time in accordance with its terms, but only to the
extent not prohibited by this Indenture; and
(7) a reference herein to any law, statute or other legislation or to any
provision thereof includes, unless otherwise expressly provided herein, any
amendment modification or re-enactment thereof, any legislative provision
substituted therefor and all regulations, rules and interpretations issued
thereunder or pursuant thereto.
Certain terms, used principally in Article Six, are defined in Section
1.02.
"Act," when used with respect to any Holder, has the meaning specified in
Section 1.05.
"Additional Amounts" means any additional amounts that are required by the
express terms of a Security or by or pursuant to a Board Resolution, under
circumstances specified therein or pursuant thereto, to be paid by the Company
with respect to certain taxes, assessments or other governmental charges imposed
on certain Holders and that are owing to 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" when used with respect to any specified Person means the possession of
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Authenticating Agent" means any Person, which may include the Company,
authorized by the Trustee to act on behalf of the Trustee pursuant to Section
6.14 to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper of general circulation in the New
York, New York area, printed in the English language and customarily published
on each Business Day, whether or not published on Saturdays, Sundays or
holidays. Whenever successive weekly publications in an Authorized Newspaper are
required hereunder they may be made (unless otherwise expressly provided herein)
on the same or different days of the week and in the same or in different
Authorized Newspapers.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
2
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
that is not a day on which banking institutions in the Place of Payment or the
city in which the Corporate Trust Office is located are authorized or obligated
by law or executive order to close.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" and "Company Order" mean, respectively, a written request
or order signed in the name of the Company by its Chairman of the Board, its
Chief Executive Officer, its President, any Vice President, its Treasurer, any
Assistant Treasurer, its Controller, any Assistant Controller, its Secretary or
any Assistant Secretary, and delivered to the Trustee.
"Conversion Event" has the meaning specified in Section 5.01.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be principally
administered, which office at the date hereof is that indicated in the
introductory paragraph of this Indenture.
"Debt" means any indebtedness for money borrowed.
"Default" means, with respect to the Securities of any series, any event,
act or condition that is, or after notice or the passage of time or both would
be, an Event of Default with respect to Securities of such series.
"Defaulted Interest" has the meaning specified in Section 3.07.
"Depositary" means, with respect to Securities of any series, for which the
Company shall determine that such Securities will be issued as a Global
Security, The Depository Trust Company, New York, New York, another clearing
agency, or any successor registered as a clearing agency under the Exchange Act
or other applicable statute or regulation, which, in each case, shall be
designated by the Company pursuant to Section 2.03(b).
3
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"Event of Default" has the meaning specified in Section 5.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Rate" has the meaning specified in Section 3.02.
"GAAP" means generally accepted accounting principles, consistently
applied, that are set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant
segment of the accounting profession of the United States of America.
"Global Security" means, with respect to the Securities, a Security
executed by the Company and delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction, all in accordance with this Indenture,
which shall be registered in the name of the Depositary or its nominee.
"Government Obligations" means, with respect to any series of Securities,
securities that are (x) direct obligations of the government that issued the
currency in which such series is denominated (or, if such series is denominated
in euro, the direct obligations of any government that is a member of the
European Monetary Union) for the payment of which its full faith and credit is
pledged or (y) obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of such government the payment of which is
unconditionally guaranteed as a full faith and credit obligation by such
government, which, in either case, are not callable or redeemable at the option
of the issuer thereof and shall also include a depositary receipt issued by a
bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with
respect to any Government Obligation where the relevant government is the United
States of America or a specific payment of principal of or interest on any such
Government Obligation held by such custodian for the account of the holder of
such depositary 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 such Government Obligation or the specific payment of principal of or
interest on such Government Obligation evidenced by such depository receipt.
"Holder," when used with respect to any Security, means the Person in whose
name the Security is registered in the Security Register.
4
"Indenture" means this instrument as originally executed and as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof and shall
include the terms of particular series of Securities established as contemplated
by Section 3.01 and the provisions of the Trust Indenture Act that are deemed to
be a part of and govern this instrument.
"Interest," when used with respect to an Original Issue Discount Security
that by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any Security, means the
Stated Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 5.06.
"Maturity," when used with respect to any Security, means the date on which
the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the Chief Executive Officer, the President or any Vice President, and by
the Treasurer, the Controller, the Secretary or any Assistant Treasurer,
Assistant Controller or Assistant Secretary of the Company, and delivered to the
Trustee, which certificate shall be in compliance with Section 1.03 hereof.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for the Company, including an employee of the Company, rendered, if applicable,
in accordance with Section 314(c) of the Trust Indenture Act, which opinion
shall be in compliance with Section 1.03 hereof.
"Original Issue Discount Security" means any Security that provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
"Outstanding," when used with respect to Securities of a series, means as
of the date of determination, all Securities of such series theretofore
authenticated and delivered under this Indenture, except:
(1) Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(2) Securities, or portions thereof, for whose payment or redemption money
in the necessary amount has been theretofore irrevocably deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own Paying
Agent) for the Holders of such Securities; provided that, if such Securities are
to be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
5
(3) Securities, except to the extent provided in Section 13.02 and Section
13.03 hereof, with respect to which the Company has effected Legal Defeasance or
Covenant Defeasance as provided in Article Thirteen hereof; and
(4) Securities that have been paid pursuant to Section 3.06 or in exchange
for or in lieu of which other Securities have been authenticated and delivered
pursuant to this Indenture, other than any such Securities in respect of which
there shall have been presented to the Trustee proof satisfactory to it that
such Securities are held by a bona fide purchaser in whose hands such Securities
are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether a
quorum is present at a meeting of Holders of Securities, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes shall be the principal amount thereof that would
be due and payable as of the date of such determination upon acceleration of the
Maturity thereof pursuant to Section 5.02, (b) the principal amount of a
Security denominated in a foreign currency shall be the U.S. dollar equivalent,
determined by the Company on the date of original issuance of such Security, of
the principal amount (or, in the case of an Original Issue Discount Security,
the U.S. dollar equivalent, determined on the date of original issuance of such
Security, of the amount determined as provided in (a) above), of such Security
and (c) Securities owned by the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which a
Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means any Person, which may include the Company, authorized
by the Company to pay the principal of, premium (if any) or interest on or any
Additional Amounts with respect to any one or more series of Securities on
behalf of the Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, incorporated or unincorporated association, joint-stock
company, trust, unincorporated organization or government or other agency or
political subdivision thereof or other entity of any kind.
"Place of Payment," when used with respect to the Securities of any series,
means the place or places where the principal of, premium (if any) or interest
6
on or any Additional Amounts with respect to the Securities of such series are
payable as specified in accordance with Section 3.01 subject to the provisions
of Section 10.02.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to the terms of such
Security and this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to the terms of such
Security and this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 3.01, or, if not so specified, the first day of the
calendar month of the month of such Interest Payment Date if such Interest
Payment Date is the fifteenth day of the calendar month or the fifteenth day of
the calendar month preceding such Interest Payment Date if such Interest Payment
Date is the first day of a calendar month, whether or not such day shall be a
Business Day.
"Required Currency" has the meaning specified in Section 5.06.
"Responsible Officer," when used with respect to the Trustee, means any
officer of the Trustee 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 such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.05.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
3.07.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means 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 scheduled to be due and payable.
7
"Subsidiary" means, with respect to any specified Person: any corporation,
association or other business entity of which more than 50% of the total voting
power of securities entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of that Person (or a combination thereof);
and any partnership (a) the sole general partner or the managing general partner
of which is such Person or a Subsidiary of such Person or (b) the only general
partners of which are such Person or one or more Subsidiaries of such Person (or
any combination thereof).
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed, except as provided in Section
9.05; provided, however, that, in the event the Trust Indenture Act of 1939 is
amended after such date, "Trust Indenture Act" means, to the extent required by
any such amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Trustee" shall mean or
include each Person who is then a Trustee hereunder, 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.
"United States" means the United States of America (including the states
thereof and the District of Columbia) and its "possessions," which include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"United States Alien" means any Person who, for United States federal
income tax purposes, is a foreign corporation, a nonresident alien individual, a
nonresident alien or foreign fiduciary of an estate or trust, or a foreign
partnership.
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Yield to Maturity," when used with respect to any Original Issue Discount
Security, means the yield to maturity, if any, set forth on the face thereof.
Section 1.02. Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
Whenever this Indenture refers to a provision of the Trust Indenture Act,
the provision is incorporated by reference in and made a part of this Indenture.
The following Trust Indenture Act terms used in this Indenture have the
following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United States
Code.
"indenture securities" means the Securities.
8
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All terms used in this Indenture that are defined by the Trust Indenture
Act, defined by a Trust Indenture Act reference to another statute or defined by
Commission rule under the Trust Indenture Act and not otherwise defined herein
have the meanings assigned to them therein.
Section 1.03. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take any
action under any provision of this Indenture, the Company will furnish to the
Trustee such certificates and opinions as may be required under the Trust
Indenture Act or this Indenture.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include
(1) a statement that each Person signing such certificate or opinion has
read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such Person, such Person has
made such examination or investigation as is necessary to enable such Person to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such Person, such
condition or covenant has been complied with.
The certificates and opinions provided pursuant to this Section 1.03 will
comply in all respects with Sections 314(c) and (e) of the Trust Indenture Act.
Section 1.04. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
9
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.05. Acts of Holders; Record Dates.
-----------------------------
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders of
the Outstanding Securities of all series or one or more series, as the case may
be, may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent duly appointed in
writing. Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record or both are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments and any such record (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments and so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or the holding of any Person of a Security, shall be sufficient
for any purpose of this Indenture and (subject to Section 6.01) conclusive in
favor of the Trustee and the Company, if made in the manner provided in this
Section 1.05. The record of any meeting of Holders of Securities shall be proved
in the manner provided in Section 14.06.
The Company may set a record date for purposes of determining the identity
of Holders of Securities entitled to vote or consent to any action by vote or
consent authorized or permitted under this Indenture. If a record date is fixed,
those Persons who were Holders of Outstanding Securities at such record date (or
their duly designated proxies), and only those Persons, shall be entitled with
respect to such Securities to take such action by vote or consent or to revoke
any vote or consent previously given, whether or not such Persons continue to be
Holders after such record date. Promptly after any record date is set pursuant
to this paragraph, the Company, at its own expense, shall cause notice thereof
to be given to the Trustee in writing in the manner provided in Section 1.06 and
to the relevant Holders as set forth in Section 1.07.
10
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities held by any
Person, and the date of holding the same, shall be proved by the Security
Register.
(d) In determining whether the Holders of the requisite principal amount of
Securities have given any request, demand, authorization, direction, notice,
consent or waiver under this Indenture, the principal amount of an Original
Issue Discount Security that may be counted in making such determination and
that shall be deemed to be Outstanding for such purposes shall be equal to the
amount of the principal thereof that would be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 5.02 at the time the
taking of such action by the Holders of such requisite principal amount is
evidenced to the Trustee for such Securities.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security. Any consent or waiver of the Holder of any Security shall be
irrevocable for a period of six months after the date of execution thereof, but
otherwise any such Holder or subsequent Holder may revoke the request, demand,
authorization, direction, notice, consent or other Act as to his Security or
portion of his Security; provided, however, that such revocation shall be
effective only if the Trustee receives the notice of revocation before the date
the Act becomes effective.
Section 1.06. Notices, Etc., to Trustee and Company.
-------------------------------------
Any request, demand, authorization, direction, notice, consent, waiver or
Act of Holders or other document provided or permitted by this Indenture to be
made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with
the Trustee at its Corporate Trust Office, Attention:
[________________________], or
(2) the Company by the Trustee or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, certified or registered mail (return receipt requested), to
the Company addressed to it at the address of its principal office specified in
11
the first paragraph of this Indenture or at any other address previously
furnished in writing to the Trustee by the Company, Attention: Corporate
Secretary.
Section 1.07. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice to Holders of Securities of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder as it appears
in the Security Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service, or by reason
of any other cause it shall be impracticable to give such notice to Holders of
Securities by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder. In any case in which notice to Holders of Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder of a Security, shall affect the sufficiency of
such notice with respect to other Holders of Securities.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
Section 1.08. Conflict With Trust Indenture Act.
---------------------------------
If any provision hereof limits, qualifies or conflicts with any provision
of the Trust Indenture Act or another provision hereof required to be included
in this Indenture by any of the provisions of the Trust Indenture Act, such
provision of the Trust Indenture Act shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the former provision shall be deemed to apply to
this Indenture as so modified or to be excluded.
Section 1.09. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section 1.10. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether or not so expressed. All agreements of the
Trustee in this Indenture will bind its successor.
12
Section 1.11. Separability Clause.
-------------------
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.12. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person any benefit or any legal or equitable right, remedy or claim
under this Indenture, other than the parties hereto and their successors
hereunder, any Authenticating Agent, Paying Agent or Security Registrar and the
Holders.
Section 1.13. Governing Law.
-------------
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of the State of New York, but without giving effect to
applicable principles of conflicts of law to the extent the application of the
laws of another jurisdiction would be required thereby.
Section 1.14. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of principal of, premium (if any) and interest on or any
Additional Amounts with respect to Securities of any series need not be made at
such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date or Redemption Date, or at the Stated Maturity,
provided that no interest shall accrue with respect to such payment for the
period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
Section 1.15. Corporate Obligation.
--------------------
No recourse may be taken, directly or indirectly, against any incorporator,
subscriber to the capital stock, stockholder, officer, director, employee or
Affiliate of the Company or the Trustee or of any predecessor or successor of
the Company or the Trustee with respect to the Company's obligations on the
Securities or the obligations of the Company or the Trustee under this Indenture
or any certificate or other writing delivered in connection herewith. Each
Holder by accepting any of the Securities, waives and releases all such
liability, to the extent permitted by law.
Section 1.16. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or any of its Subsidiaries. Any such indenture, loan or
debt agreement may not be used to interpret this Indenture.
13
ARTICLE TWO
SECURITY FORMS
Section 2.01. Forms Generally.
---------------
The Securities of each series shall be in fully registered form and in
substantially such form or forms as shall be established by or pursuant to one
or more Board Resolutions or in one or more indentures supplemental hereto, in
each case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any securities
exchange or any Depositary therefor or to conform to general usage, all as may,
consistently herewith, be determined by the officers of the Company executing
such Securities, as evidenced by their execution of the Securities. A copy of
the Board Resolution establishing the form or forms of Securities of any series,
or to the extent the form or forms of Securities have been established by action
taken pursuant to, rather than set forth in, the Board Resolution, an Officer's
Certificate detailing such action, shall be delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 3.03 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution
thereof.
Section 2.02. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication shall be in substantially the
following form:
"This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
-----------------------------------
as Trustee
By
------------------------------------
Authorized Signatory"
Section 2.03. Securities Issuable in the Form of a Global Security.
----------------------------------------------------
(a) If the Company shall establish pursuant to Section 3.01 that the
Securities of a particular series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the
Trustee shall, in accordance with Section 3.03 and the Company Order delivered
to the Trustee thereunder, authenticate and deliver such Global Security or
Securities, which (i) shall represent, and shall be denominated in, an amount
equal to the aggregate principal amount of the Outstanding Securities of such
14
series to be represented by such Global Security or Securities, (ii) may provide
that the aggregate amount of Outstanding Securities represented thereby may from
time to time be increased or reduced to reflect exchanges, (iii) shall be
registered in the name of the Depositary for such Global Security or Securities
or its nominee, (iv) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction and (v) shall bear a legend in
accordance with the requirements of the Depositary.
(b) Notwithstanding any provision of Section 3.05, except as contemplated
by the provisions of Section 2.03(c) or unless the terms of a Global Security
expressly permit such Global Security to be exchanged in whole or in part for
individual definitive Securities, a Global Security may be transferred, in whole
but not in part and in the manner provided in Section 3.05, only to a nominee of
the Depositary for such Global Security, or to the Depositary, or to a successor
Depositary for such Global Security selected or approved by the Company, or to a
nominee of such successor Depositary.
(c) (1) If at any time the Depositary for a Global Security notifies the
Company that it is unwilling or unable to continue as the Depositary for such
Global Security or if at any time the Depositary for the Securities for such
series shall no longer be eligible or in good standing under the Exchange Act,
or other applicable statute or regulation, the Company shall appoint a successor
Depositary with respect to such Global Security. If a successor Depositary for
such Global Security is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company
will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of Securities of such series in the form of
definitive certificates in exchange for such Global Security, will authenticate
and deliver Securities of such series in the form of definitive certificates of
like tenor and terms in an aggregate principal amount equal to the principal
amount of the Global Security in exchange for such Global Security. Such
Securities will be issued to and registered in the name of such Person or
Persons as are specified by the Depositary.
(2) The Company may at any time and in its sole discretion determine that
the Securities of any series issued or issuable in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Securities. In any such event the Company will execute, and the Trustee, upon
receipt of a Company Request for the authentication and delivery of Securities
in the form of definitive certificates in exchange in whole or in part for such
Global Security, will authenticate and deliver without service charge to each
Person specified by the Depositary Securities in the form of definitive
certificates of like tenor and terms in an aggregate principal amount equal to
the principal amount of such Global Security representing such series, or the
aggregate principal amount of such Global Securities representing such series,
in exchange for such Global Security or Securities.
(3) If specified by the Company pursuant to Section 3.01 with respect to
Securities issued or issuable in the form of a Global Security, the Depositary
for such Global Security may surrender such Global Security in exchange in whole
or in part for Securities in the form of definitive certificates of like tenor
and terms on such terms as are acceptable to the Company and such Depositary.
Thereupon the Company shall execute, and the Trustee shall authenticate and
deliver, without service charge, (A) to each Person specified by such Depositary
a new Security or Securities of the same series of like tenor and terms and any
15
authorized denomination as requested by such Person in aggregate principal
amount equal to and in exchange for such Person's beneficial interest in the
Global Security and (B) to such Depositary a new Global Security of like tenor
and terms and in an authorized denomination equal to the difference, if any,
between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to Holders thereof.
(4) In any exchange provided for in any of the preceding three
subparagraphs, the Company shall execute and the Trustee shall authenticate and
deliver Securities in the form of definitive certificates in authorized
denominations. Upon the exchange of the entire principal amount of a Global
Security for Securities in the form of definitive certificates, such Global
Security shall be canceled by the Trustee. Except as provided in the immediately
preceding subparagraph, Securities in the form of definitive certificates issued
in exchange for a Global Security pursuant to this Section shall be registered
in such names and in such authorized denominations as the Depositary for such
Global Security, acting pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. Provided that the Company
and the Trustee have so agreed, the Trustee shall deliver such Securities to the
Persons in whose names the Securities are so to be registered.
(5) Any endorsement of a Global Security to reflect the principal amount
thereof, or any increase or decrease in such principal amount, or changes in the
rights of Holders of Outstanding Securities represented thereby shall be made in
such manner and by such Person or Persons as shall be specified in or pursuant
to any applicable letter of representations or other arrangement entered into
with, or procedures of, the Depositary with respect to such Global Security or
in the Company Order delivered or to be delivered pursuant to Section 3.03 with
respect thereto. Subject to the provisions of Section 3.03, the Trustee shall
deliver and redeliver any such Global Security in the manner and upon
instructions given by the Person or Persons specified in or pursuant to any
applicable letter of representations or other arrangement entered into with, or
procedures of, the Depositary with respect to such Global Security or in any
applicable Company Order. If a Company Order pursuant to Section 3.03 is so
delivered, any instructions by the Company with respect to such Global Security
contained therein shall be in writing but need not be accompanied by or
contained in an Officer's Certificate and need not be accompanied by an Opinion
of Counsel.
(6) The Depositary or, if there be one, its nominee, shall be the Holder of
a Global Security for all purposes under this Indenture; and beneficial owners
with respect to such Global Security shall hold their interests pursuant to
applicable procedures of such Depositary. The Company, the Trustee and the
Security Registrar shall be entitled to deal with such Depositary for all
purposes of this Indenture relating to such Global Security (including the
payment of principal, premium, if any, and interest (including any Additional
Interest) and the giving of instructions or directions by or to the beneficial
owners of such Global Security as the sole Holder of such Global Security and
shall have no obligations to the beneficial owners thereof (including any direct
16
or indirect participants in such Depositary). None of the Company, the Trustee,
any Paying Agent or the Security Registrar shall have any responsibility or
liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests of a Global Security in or pursuant to any
applicable letter of representations or other arrangement entered into with, or
procedures of, the Depositary with respect to such Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
ARTICLE THREE
THE SECURITIES
Section 3.01. Amount Unlimited; Issuable in Series.
------------------------------------
The aggregate principal amount of Securities that may be authenticated and
delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and (subject to Section 3.03)
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series,
(1) the title of the Securities of such series (which shall distinguish the
Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities of such
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 such series pursuant to Section
2.03, 3.04, 3.05, 3.06, 9.06 or 11.07);
(3) the date or dates on which the principal or premium (if any) of the
Securities of such series is payable or the method of determination thereof;
(4) the rate or rates, or the method of determination thereof, at which the
Securities of such series shall bear interest, if any, whether and under what
circumstances Additional Amounts with respect to such Securities shall be
payable, the date or dates from which such interest shall accrue, the Interest
Payment Dates on which such interest shall be payable and, if other than as set
forth in Section 1.01, the Regular Record Date for the interest payable on any
Securities on any Interest Payment Date;
(5) the place or places where, subject to the provisions of Section 10.02,
the principal of, premium (if any) and interest on or any Additional Amounts
with respect to the Securities of such series shall be payable;
(6) the period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms and
conditions upon which Securities of such series may be redeemed, in whole or in
17
part, at the option of the Company, if the Company is to have that option, and
the manner in which the Company must exercise any such option, if different from
those set forth herein;
(7) the obligation, if any, of the Company to redeem, purchase or repay
Securities of such series pursuant to any sinking fund, amortization or
analogous provisions or at the option of a Holder thereof and the period or
periods within which, the price or prices (whether denominated in cash,
securities or otherwise) at which and the terms and conditions upon which,
Securities of such series shall be redeemed, purchased or repaid in whole or in
part pursuant to such obligation;
(8) the denomination in which any Securities of that series shall be
issuable, if other than denominations of $1,000 and any integral multiple
thereof;
(9) if other than the Trustee, the identity of the Securities Registrar
and/or the Paying Agent;
(10) the currency or currencies (including composite currencies), if other
than Dollars, or the form, including equity securities, other debt securities
(including Securities), warrants or any other securities or property of the
Company or any other Person, in which payment of the principal of, premium (if
any) and interest on or any Additional Amounts with respect to the Securities of
such series shall be payable;
(11) if the principal of, premium (if any) or interest on or any Additional
Amounts with respect to the Securities of such series are to be payable, at the
election of the Company or a Holder thereof, in a currency or currencies
(including composite currencies) other than that in which the Securities are
stated to be payable, the currency or currencies (including composite
currencies) in which payment of the principal of, premium (if any) and interest
on or any Additional Amounts with respect to Securities of such series as to
which such election is made shall be payable, and the periods within which and
the terms and conditions upon which such election is to be made;
(12) if the amount of payments of principal of, premium (if any) and
interest on or any Additional Amounts with respect to the Securities of such
series may be determined with reference to any commodities, currencies or
indices, values, rates or prices or any other index or formula, the manner in
which such amounts shall be determined;
(13) if other than the entire principal amount thereof, the portion of the
principal amount of Securities of such series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 5.02;
(14) any additional means of satisfaction and discharge of this Indenture
with respect to Securities of such series pursuant to Section 4.01, any
additional conditions to discharge pursuant to Section 4.01 or Section 4.03 and
the application, if any, of Section 4.03;
18
(15) whether the Securities of the series will be guaranteed by any
Subsidiary of the Company;
(16) any deletions or modifications of or additions to the definitions set
forth in Section 1.01, Events of Default set forth in Section 5.01 or covenants
of the Company set forth in Article Ten pertaining to the Securities of such
series or made for the benefit of the Holders thereof;
(17) if the Securities of such series are to be convertible into or
exchangeable for equity securities, other debt securities (including
Securities), warrants or any other securities or property of the Company or any
other Person, at the option of the Company or the Holder or upon the occurrence
of any condition or event, the terms and conditions for such conversion or
exchange;
(18) whether any of such Securities will be subject to certain optional
interest rate reset provisions;
(19) whether the Securities of the series shall be issued in whole or in
part in the form of a Global Security or Securities; the terms and conditions,
if any, upon which such Global Security or Securities may be exchanged in whole
or in part for certificated Securities of such series and of like tenor of any
authorized denomination and the circumstances under which such exchange may
occur, if other than in the manner provided for in Section 2.03; the Depositary
for such Global Security or Securities; and the form of any legend or legends to
be borne by any such Global Security in addition to or in lieu of the legend
referred to in Section 2.03;
(20) the additions or changes, if any, to the Indenture with respect to
such Securities as shall be necessary to permit or facilitate the issuance of
such Securities in bearer form, registered or not registrable as to principal,
and with or without interest coupons; and
(21) any other terms of such series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Securities of any one series shall be substantially identical except as
to denomination and date and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 3.03) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
At the option of the Company, interest on the Securities of any series that
bears interest may be paid by mailing a check to the address of any Holder as
such address shall appear in the Security Register.
If any of the terms of the series are established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action together
with such Board Resolution shall be certified by the Secretary or an Assistant
Secretary of the Company and delivered to the Trustee at or prior to the
19
delivery of the Officers' Certificate setting forth the terms of the series.
Section 3.02. Denominations.
-------------
The Securities of each series shall be issuable in such denominations as
shall be specified as contemplated by Section 3.01. In the absence of any such
provisions with respect to the Securities of any series, the Securities of such
series denominated in Dollars shall be issuable in denominations of $1,000 and
any integral multiple thereof.
Unless otherwise provided as contemplated by Section 3.01 with respect to
any series of Securities, any Securities of a series denominated in a currency
other than Dollars shall be issuable in denominations that are the equivalent,
as determined by the Company by reference to the noon buying rate in The City of
New York for cable transfers for such currency ("Exchange Rate"), as such rate
is reported or otherwise made available by the Federal Reserve Bank of New York,
on the applicable issue date for such Securities, of $1,000 and any integral
multiple thereof.
Section 3.03. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its President, its Treasurer or one of its Vice Presidents and
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities as in this
Indenture provided and not otherwise.
If the form or terms of the Securities of a series have been established in
or pursuant to one or more Board Resolutions or any other method permitted by
Section 2.01 and Section 3.01, in authenticating such Securities, and accepting
the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
6.01) shall be fully protected in relying upon, an Opinion of Counsel stating,
(1) that the form of such Securities has been established in conformity
with the provisions of this Indenture;
20
(2) that the terms of such Securities have been established in conformity
with the provisions of this Indenture; and
(3) that such Securities when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions specified
in such Opinion of Counsel, will constitute legal, valid and binding obligations
of the Company, enforceable in accordance with their terms, except as such
enforcement is subject to the effect of (i) bankruptcy, insolvency, fraudulent
conveyance, reorganization or other laws relating to or affecting creditors'
rights and (ii) general principles of equity (regardless of whether such
enforcement is considered in a proceeding in equity or at law).
If not all the Securities of any series are to be issued at one time, it
shall not be necessary to deliver the Officers' Certificate required pursuant to
Section 3.01 or the Company Order or Opinion of Counsel required pursuant to
Section 3.03 at the time of issuance of each Security, but such documents, as
applicable, with appropriate modifications shall be delivered at or before the
time of issuance of the first Security of such series. The Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner not
reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 3.09 together
with a written statement (which need not comply with Section 1.03 and need not
be accompanied by an Opinion of Counsel) stating that such Security has never
been issued and sold by the Company, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
In case the Company, pursuant to and in compliance with Article Eight
hereof, shall consolidate with or merge into any other Person or convey,
transfer or lease its properties and assets substantially as an entirety to any
Person, and the successor Person resulting from such consolidation, or surviving
such merger, or into which the Company will have been merged, or the Person
which will have received a sale, conveyance, transfer, lease or other
disposition as aforesaid, will have executed an indenture supplemental hereto
with the Trustee pursuant to Article Eight hereof, any of the Securities
authenticated or delivered prior to such sale, consolidation, merger,
conveyance, transfer, lease or other disposition may, from time to time, at the
request of the successor Person, be exchanged for other Securities executed in
the name of the successor Person with such changes in phraseology and form as
21
may be appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Request of the successor Person, will authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities will at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section 3.03 in exchange or substitution for
or upon registration of transfer of any Securities, such successor Person, at
the option of the Holders but without expense to them, will provide for the
exchange of all Securities at the time Outstanding for Securities authenticated
and delivered in such new name.
Section 3.04. Temporary Securities.
--------------------
Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities that are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, in
registered form and with such appropriate insertions, omissions, substitutions
and other variations as the officers of the Company executing such Securities
may determine, as evidenced by their execution of such Securities.
Except in the case of temporary Securities in global form (which shall be
exchanged in accordance with the provisions of the following paragraphs), if
temporary Securities of any series are issued, the Company will cause definitive
Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of any
series, the Company shall execute and deliver a Company Order requesting the
Trustee to authenticate and deliver and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities of
the same series of authorized denominations. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
All Outstanding temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
the same series and of like tenor authenticated and delivered hereunder.
Section 3.05. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
The Company shall cause to be kept for each series of Securities at one of
the offices or agencies maintained pursuant to Section 10.02 a register (the
register maintained in such office and in any other office or agency of the
Company in a Place of Payment being herein sometimes collectively referred to as
the "Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
22
of transfers of Securities of such series. The Trustee is hereby initially
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Except as set forth in Section 2.03 or as may be provided pursuant to
Section 3.01, upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute and deliver a Company Order requesting the Trustee to
authenticate and deliver and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series and of like tenor, of any authorized denominations and of a like
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for
other Securities of the same series and of like tenor, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency, and upon payment, if the
Company shall so require, of the charges hereinafter provided. Whenever any
Securities are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Trustee) be duly endorsed,
or be accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed, by the Holder thereof or
his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than exchange
pursuant to Section 3.04, Section 9.06 or Section 11.07 not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer of or
exchange Securities of any series during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
Securities of such series selected for redemption and ending at the close of
business on the day of the mailing of the relevant notice of redemption, (ii) to
register the transfer of or exchange any Security so selected for redemption in
whole or in part, except the unredeemed portion of any Security being redeemed
in part or (iii) to register the transfer or exchange of Securities between a
record date and the next succeeding interest payment date.
23
Any Holder of a Global Security shall, by acceptance of such Global
Security, agree that transfers of beneficial interests in such Global Security
may be effected only through a book entry system maintained by the Holder of
such Global Security (or its agent), and that ownership of a beneficial interest
in the Security shall be required to be reflected in a book entry.
Section 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
If any mutilated Security is surrendered to the Trustee, the Company shall
execute and deliver a Company Order requesting the Trustee to authenticate and
deliver, and the Trustee shall authenticate and deliver in exchange therefor, a
new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and deliver to the Trustee a new Security
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding and a Company Order requesting the Trustee to
authenticate and deliver, and the Trustee shall authenticate and deliver, in
lieu of any such destroyed, lost or stolen Security, such new Security.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 3.06, 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 fee and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section 3.06 in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section 3.06 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.07. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date or within five days thereafter shall
be paid to the Person in whose name that Security (or one or more Predecessor
24
Securities) is registered at the close of business on the Regular Record Date
for such interest. Unless otherwise provided with respect to the Securities of
any series, payment of interest may be made at the option of the Company by
check mailed or delivered to the address of any Person entitled thereto as such
address shall appear in the Security Register.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date or within
five days thereafter (herein called "Defaulted Interest") shall forthwith cease
to be payable to the Holder on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the Company,
at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security of such series
and the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this clause (1)
provided. Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of such series
at his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall no
longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed,
and upon such notice as may be required by such exchange, if, after notice given
by the Company to the Trustee of the proposed payment pursuant to this clause
(2), such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 3.07, each Security
delivered under this Indenture, upon registration of transfer of, or in exchange
for or in lieu of, any other Security shall carry the rights to interest accrued
25
and unpaid, and to accrue, which were carried by such other Security.
Section 3.08. Persons Deemed Owners.
---------------------
Prior to due presentment of a Security for registration of transfer, the
Company, the Security Registrar, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is registered as the
owner of such Security for the purpose of receiving payment of principal of,
premium (if any) and (subject to Section 3.05 and Section 3.07) interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Security Registrar, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the contrary.
Section 3.09. Cancellation.
------------
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered shall be promptly canceled by the Trustee. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section 3.09,
except as expressly permitted by this Indenture. All canceled Securities held by
the Trustee shall be disposed of by the Trustee in accordance with its customary
procedures, unless the Trustee is otherwise directed by a Company Order.
Section 3.10. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 3.01 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year comprising twelve 30-day months.
Section 3.11. 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 the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the CUSIP numbers.
26
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 4.01. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall upon Company Request cease to be of further effect
with respect to Securities of a series, and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to Securities of such series, when
(1) either
(A) all Securities of such series theretofore authenticated and delivered
(other than (i) Securities that have been destroyed, lost or stolen and that
have been replaced or paid as provided in Section 3.06, and (ii) Securities for
whose payment money or Governmental Obligations have theretofore been deposited
in trust with the Trustee or any Paying Agent or segregated and held in trust by
the Company and thereafter repaid or returned to the Company or discharged from
such trust, as provided in Section 10.03) have been delivered to the Trustee for
cancellation;
(B) with respect to all Outstanding Securities of such series not
theretofore delivered to the Trustee for cancellation,the Company has deposited
or caused to be deposited with the Trustee under the terms of a trust agreement
in form and substance satisfactory to the Trustee, as trust funds in trust
solely for the benefit of the Holders of Outstanding Securities for that
purpose, money or Government Obligations maturing as to principal and interest
in such amounts and at such times as will, together with the income to accrue
thereon, without consideration of any reinvestment thereof, be sufficient to pay
and discharge the entire indebtedness on all Outstanding Securities of such
series not theretofore delivered to the Trustee for cancellation for principal
of, premium (if any) and interest on or any Additional Amounts with respect to
such Securities to the Stated Maturity or any Redemption Date contemplated by
the penultimate paragraph of this Section 4.01, as the case may be; or
(C) the Company has properly fulfilled such other means of satisfaction and
discharge as is specified, as contemplated by Section 3.01, to be applicable to
the Securities of such series;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Outstanding Securities of such
series;
(3) the Company has complied with any other conditions specified pursuant
to Section 3.01 to be applicable to the discharge of this Indenture with respect
to Securities of such series pursuant to this Section 4.01; and
(4) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
27
provided for relating to the satisfaction and discharge of this Indenture with
respect to the Securities of such series have been complied with;
(5) if the conditions set forth in subclause (A) of clause (1) of Section
4.01 have not been satisfied and unless otherwise specified pursuant to Section
3.01 for the Securities of such series, the Company has delivered to the Trustee
an Opinion of Counsel to the effect that the Holders of Securities of such
series will not recognize income, gain or loss for United States federal income
tax purposes as a result of such deposit, satisfaction and discharge and will be
subject to United States federal income tax on the same amount and in the same
manner and at the same time as would have been the case if such deposit,
satisfaction and discharge had not occurred; and
(6) no Default or Event of Default with respect to the Securities of such
issue shall have occurred and be continuing on the date of any such deposit or,
in so far as clause (5) or (6) of Section 5.01 is concerned, at any time in the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
If any Outstanding Securities of such series are to be redeemed prior to
their Stated Maturity, whether pursuant to any optional redemption provisions or
in accordance with any mandatory sinking fund requirement, the trust agreement
referred to in subclause (B) of clause (1) of this Section 4.01 shall provide
therefor and the Company shall make such arrangements as are satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities of such series pursuant to this Section 4.01, the
obligations of the Company to the Trustee under Section 6.07, the obligations of
the Company to any Authenticating Agent under Section 6.14 and the obligations
of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall
survive.
Section 4.02. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 10.03, all money
deposited with the Trustee pursuant to Section 4.01 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal of, premium (if
any) and interest on or any Additional Amounts with respect to Securities of
such series for the payment of which such money has been deposited with the
Trustee.
Section 4.03. Discharge of Liability on Securities of Any Series.
--------------------------------------------------
If this Section 4.03 is specified, as contemplated by Section 3.01, to be
applicable to Securities of any series, the Company shall be deemed to have paid
and discharged the entire indebtedness on all the Outstanding Securities of such
series, the obligation of the Company under this Indenture and the Securities of
such series to pay the principal of, premium (if any) and interest on and any
28
Additional Amounts with respect to Securities of such series shall cease,
terminate and be completely discharged, and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging such satisfaction and
discharge, when
(1) the Company has complied with the provisions of Section 4.01 of this
Indenture (other than any additional conditions specified pursuant to Section
3.01 and clause (3) of Section 4.01 and except that the Opinion of Counsel
referred to in clause (5) of Section 4.01 shall state that it is based on a
ruling by the Internal Revenue Service or other change since the date hereof
under applicable Federal income tax law) with respect to all Outstanding
Securities of such series,
(2) the Company has delivered to the Trustee a Company Request requesting
such satisfaction and discharge,
(3) the Company has complied with any other conditions specified pursuant
to Section 3.01 to be applicable to the discharge of Securities of such series
pursuant to this Section 4.03, and
(4) the Company has delivered to the Trustee an Officer's Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided relating to the discharge of the indebtedness on the Outstanding
Securities of such series have been complied with.
Upon the satisfaction of the conditions set forth in this Section 4.03 with
respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; provided that, the Company shall not be discharged
from any payment obligations in respect of Securities of such series which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law or pursuant to Section 3.05 or Section 3.06.
Section 4.04. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any money or Government
Obligations deposited with respect to Securities of any series in accordance
with Section 4.01 by reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture with respect to the Securities of such series and the Securities of
such series shall be revived and reinstated as though no deposit had occurred
pursuant to Section 4.01 until such time as the Trustee or Paying Agent is
permitted to apply all such money or Government Obligations in accordance with
Section 4.01; provided, however, that if the Company has made any payment of
principal of, premium (if any) or interest on or any Additional Amounts with
respect to any Securities because of the reinstatement of its obligations, the
29
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money or Government Obligations held by the
Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
Section 5.01. Events of Default.
-----------------
"Event of Default," wherever used herein with respect to Securities of any
series, means any one of the following events which shall have occurred and be
continuing (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body), unless it is either inapplicable to a
particular series or it is specifically deleted or modified in or pursuant to
the supplemental indenture or Board Resolution establishing such series of
Securities or in the form of Security for such series:
(1) default in the payment of any interest on or any Additional Amounts
with respect to any Security of that series when such interest or Additional
Amounts become due and payable, and continuance of such default for a period of
30 days; or
(2) default in the payment of the principal of or premium (if any) on any
Security of that series at its Maturity; or
(3) default in the deposit of any mandatory sinking fund payment, when and
as due by the terms of a Security of that series, and continuance of such
default for a period of 30 days; or
(4) default in the performance or breach of any covenant of the Company in
this Indenture (other than a covenant a default in whose performance or whose
breach is elsewhere in this Section 5.01 specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of one or more
series of Securities other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in principal amount of all Outstanding Securities
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
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Company under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the continuance of
30
any such decree or order for relief or any such other decree or order unstayed
and in effect for a period of 90 consecutive days; or
(6) the commencement by the Company of a voluntary case or proceeding under
any applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of the Company in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it, of a petition or answer or consent seeking
reorganization or relief under any applicable federal or state law, or the
consent by it to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Company or of any substantial part of its property,
or the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as they
become due, or the taking of corporate action by the Company in furtherance of
any such action; or
(7) any other Event of Default provided with respect to Securities of that
series in or pursuant to the supplemental indenture or Board Resolution
establishing such series of Securities or in the form of Security for such
series.
Notwithstanding the foregoing provisions of this Section 5.01, if the
principal of, premium (if any) or any interest on or any Additional Amounts with
respect to any Security is payable in a currency or currencies (including a
composite currency) other than Dollars and such currency or currencies are not
available to the Company for making payment thereof due to the imposition of
exchange controls or other circumstances beyond the control of the Company (a
"Conversion Event"), the Company will be entitled to satisfy its obligations to
Holders of the Securities by making such payment in Dollars in an amount equal
to the Dollar equivalent of the amount payable in such other currency, as
determined by the Company by reference to the Exchange Rate, as such Exchange
Rate is certified for customs purposes by the Federal Reserve Bank of New York
on the date of such payment, or, if such rate is not then available, on the
basis of the most recently available Exchange Rate. Notwithstanding the
foregoing provisions of this Section 5.01, any payment made under such
circumstances in Dollars where the required payment is in a currency other than
Dollars will not constitute an Event of Default under this Indenture.
Promptly after the occurrence of a Conversion Event with respect to the
Securities of any series, the Company shall give written notice thereof to the
Trustee; and the Trustee, promptly after receipt of such notice, shall give
notice thereof in the manner provided in Section 1.07 to the Holders of such
series. Promptly after the making of any payment in Dollars as a result of a
Conversion Event with respect to the Securities of any series, the Company shall
give notice in the manner provided in Section 1.07 to the Holders of such
series, setting forth the applicable Exchange Rate and describing the
calculation of such payments.
31
Section 5.02. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default with respect to any Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of (i) the series with respect to which such default has
occurred, in the case of an Event of Default described in clause (1), (2), (3),
(4) (if the Event of Default under clause (4) is with respect to less than all
series of Securities then outstanding) or (7) of Section 5.01, or (ii) all
series of Securities, in the case of an Event of Default described in clause (4)
(if the Event of Default under clause (4) is with respect to all series of
Securities then outstanding), (5) or (6) of Section 5.01, may declare the
principal amount (or, if any such Securities are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of all of the Securities of the series with respect to
which such default has occurred, or all series, as the case may be, to be due
and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such amount shall
become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series (or of all series, as the case may be) has been made,
the Holders of a majority in principal amount of the Outstanding Securities of
that series (or of all series, as the case may be), by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue interest on, and any Additional Amounts with respect to,
all Securities of that series (or of all series, as the case may be),
(B) the unpaid principal of and premium (if any) on any Securities of that
series (or of all series, as the case may be) which have become due otherwise
than by such declaration of acceleration and interest thereon at the rate or
rates prescribed therefor in such Securities (in the case of Original Issue
Discount Securities, the Securities' Yield to Maturity),
(C) to the extent that payment of such interest is lawful, interest upon
overdue interest and any Additional Amounts at the rate or rates prescribed
therefor in such Securities (in the case of Original Issue Discount Securities,
the Securities' Yield to Maturity), and
(D) all sums paid or advanced by the Trustee hereunder, the compensation,
expenses, disbursements and advances due to Trustee under Section 6.07, and all
other amounts due under Section 6.07;
(2) all Events of Default with respect to Securities of that series (or of
all series, as the case may be), other than the nonpayment of the principal of
Securities of that series (or of all series, as the case may be) which have
32
become due solely by such declaration of acceleration, have been cured or waived
as provided in Section 5.13; and
(3) the rescission would not conflict with any final judgment or decree of
a court of competent jurisdiction.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
---------------------------------------------------------------
The Company covenants that if
(1) default is made in the payment of any installment of interest on, or
any Additional Amounts with respect to, any Security of any series when such
interest or Additional Amounts shall have become due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal of or premium (if any)
on any Security at the Maturity thereof,
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 of, premium (if any) and interest on or any Additional
Amounts with respect to such Securities and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal,
premium (if any) and on any overdue interest or Additional Amounts, at the rate
or rates prescribed therefor in such Securities (or in the case of Original
Issue Discount Securities, the Securities' Yield to Maturity), 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, and all other
amounts due the Trustee under Section 6.07.
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 decreed 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 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.
33
Section 5.04. 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 (or lesser amount
in the case of Original Issue Discount Securities) 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 of, premium (if any), interest on or any
Additional Amounts with respect to such Securities) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of principal (or lesser
amount in the case of Original Issue Discount Securities) (and premium, if any)
and interest and any Additional Amounts owing and unpaid in respect of the
Securities and to file such other papers or documents as may be necessary or
advisable to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and of the Holders allowed in such judicial proceeding,
and
(2) to collect and receive any monies 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 6.07.
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, 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 proceedings; provided, however,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official.
Section 5.05. Trustee May Enforce Claims Without Possession of Securities
-----------------------------------------------------------
or Coupons.
-----------
All rights of action and claim under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without possession of any of the
Securities or the production thereof in any proceeding relating thereto; any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust; after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 6.07, any
34
recovery of judgment shall be for the ratable benefit of the Holders of the
Securities in respect of which such judgment has been recovered.
Section 5.06. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article Five shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal of, premium
(if any) or interest on or any Additional Amounts with respect to such
Securities, 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 6.07;
SECOND: To the payment of the amounts then due and unpaid for principal of,
premium (if any) and interest on and any Additional Amounts with respect to such
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 of, premium (if any),
interest on and Additional Amounts, respectively; and
THIRD: The balance, if any, to the Company.
To the fullest extent allowed under applicable law, if for the purpose of
obtaining judgment against the Company in any court it is necessary to convert
the sum due in respect of the principal of, premium (if any) or interest on or
any Additional Amounts with respect to 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 Business Day
in the City of New York next preceding that on which final judgment is given.
Neither the Company nor the Trustee shall be liable for any shortfall nor shall
it benefit from any windfall in payments to Holders of Securities under this
Section 5.06 caused by a change in exchange rates between the time the amount of
a judgment against it is calculated as above and the time the Trustee converts
the Judgment Currency into the Required Currency to make payments under this
Section 5.06 to Holders of Securities, but payment in full of such judgment
shall discharge all amounts owed by the Company on the claim or claims
underlying such judgment.
Section 5.07. Limitation on Suits.
-------------------
Subject to Section 5.08, 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
(1) an Event of Default with respect to Securities of such series shall
have occurred and be continuing and such Holder has previously given written
notice to the Trustee of such continuing Event of Default;
35
(2) the Holders of not less than 25% 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;
(3) 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;
(4) the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity has failed to institute any such proceeding; and
(5) 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 (or of all series, as the
case may be);
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 of such
Holders.
tSection 5.08. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
---------------------
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of, premium (if any) and (subject to Section 3.07)
interest on or any Additional Amounts with respect to such Security on the
Stated Maturity or 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 on or after such respective dates, and such rights shall not be
impaired or affected without the consent of such Holder.
Section 5.09. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder of any Security has instituted any proceeding
to enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, the Company, the
Trustee and the Holders shall, subject to any determination in such proceeding,
be restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 5.10. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
3.06, 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
36
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any 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 Five or by
law to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 5.12. Control by Holders.
------------------
With respect to Securities of any series, the Holders of a majority in
aggregate principal amount of the Outstanding Securities of such series shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, relating to or arising under an Event of Default
described in clause (1), (2), (3) or (7) of Section 5.01, and with respect to
all Securities the Holders of a majority in aggregate principal amount of all
Outstanding Securities shall have the right to direct the time, method and place
of conducting any remedy available to the Trustee, or exercising any trust or
power conferred on the Trustee, not relating to or arising under such an Event
of Default, provided that in each such case
(1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the action
so directed may not lawfully be taken or would conflict with this Indenture or
if the Trustee in good faith shall, by a Responsible Officer, determine that the
proceedings so directed would involve it in personal liability without adequate
indemnity from such Holders or be unjustly prejudicial to the Holders not taking
part in such direction, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 5.13. Waiver of Past Defaults.
-----------------------
Subject to Section 5.08 and Section 9.02, the Holders of a majority in
aggregate 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, and the
Holders of a majority in aggregate principal amount of all Outstanding
Securities may on behalf of the Holders of all Securities waive any other past
default hereunder and its consequences, except in each case a default
37
(1) in the payment of the principal of, premium (if any) or interest on or
any Additional Amounts with respect to any Security, or
(2) in respect of a covenant or provision hereof that under Article Nine
cannot be modified or amended without the consent of the Holder of each
Outstanding Security 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. Any such waiver may (but need
not) be given in connection with a tender offer or exchange offer for the
Securities of such series.
Section 5.14. Undertaking for Costs.
---------------------
All parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant.
Section 5.15. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so) that it
will not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 6.01. Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default with respect to
the Securities of any series,
(1) the Trustee undertakes to perform such duties and only such duties as
are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
38
(2) in the absence of bad faith on its part, the Trustee may conclusively
rely, and will be fully protected in so relying, as to the truth of the
statements and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions that by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Indenture (but
need not confirm or investigate the accuracy of any mathematical calculations or
other facts stated therein).
(b) In case an Event of Default has occurred and is continuing with respect
to the Securities of any series, the Trustee shall exercise such of the rights
and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct, except that
(1) this Section 6.01(c) shall not be construed to limit the effect of
Section 6.01(a);
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with the direction of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of any
series or of all series, determined as provided in Section 5.12, 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; and
(4) no provision of this Indenture shall require the Trustee to expend or
risk its own funds or otherwise incur any financial liability in the performance
of any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of such
funds or adequate indemnity, satisfactory to the Trustee in its reasonable
judgment, against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section
6.01.
39
Section 6.02. Notice of Defaults.
-------------------
Within 90 days after the occurrence of any Default or Event of Default with
respect to the Securities of any series, the Trustee shall give notice of such
Default or Event of Default known to the Trustee to all Holders of Securities of
such series in the manner provided in Section 1.07, unless such default shall
have been cured or waived; provided, however, that, except in the case of a
Default or Event of Default in the payment of the principal of, premium (if any)
or interest on or any Additional Amounts with respect to any Security of such
series or in the payment of any sinking fund installment with respect to
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors or Responsible Officers of the Trustee in good
faith determine that the withholding of such notice is in the interest of the
Holders of Securities of such series; and provided, further, that in the case of
any Default or Event of Default of the character specified in clause (4) of
Section 5.01 with respect to Securities of such series, no such notice to
Holders shall be given until at least 60 days after the occurrence thereof.
Section 6.03. Certain Rights of Trustee.
-------------------------
Subject to the provisions of Section 6.01:
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note,
coupon, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction;
40
(6) 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, coupon, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine,
during business hours and upon reasonable notice, the books, records and
premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and, except for any Affiliates of the Trustee, the Trustee shall not
be responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder;
(8) the Trustee shall not be charged with knowledge of any Default or Event
of Default with respect to the Securities of any series for which it is acting
as Trustee unless either (1) a Responsible Officer shall have actual knowledge
of such Default or Event of Default or (2) written notice of such Default or
Event of Default shall have been given to the Trustee by the Company or any
other obligor on such Securities or by any Holder of such Securities; and
(9) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture.
Section 6.04. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company,
and the Trustee assumes no responsibility for their correctness. The Trustee
makes no representations as to the validity or sufficiency of this Indenture or
of the Securities, except that the Trustee represents that it is duly authorized
to execute and deliver this Indenture, authenticate the Securities and perform
its obligations hereunder, and that the statements made by it in a Statement of
Eligibility and Qualification on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. The Trustee shall not
be accountable for the use or application by the Company of Securities or the
proceeds thereof.
Section 6.05. May Hold Securities.
-------------------
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Section
6.08 and Section 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
41
Section 6.06. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
Section 6.07. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as shall be
agreed upon in writing from time to time for all services rendered by it
hereunder (which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee
upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of this
Indenture (including the reasonable compensation and the reasonable expenses and
disbursements of its agents and counsel), except any such expense, disbursement
or advance as may be attributable to its negligence, willful misconduct or bad
faith; and
(3) to indemnify the Trustee and each of its directors, officers,
employees, agents and/or representatives for, and to hold each of them harmless
against, any and all loss, liability, claim, damage or expense incurred without
negligence, willful misconduct or bad faith on each of their part, arising out
of or in connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending themselves against any
claim or liability in connection with the exercise or performance of any of the
Trustees' powers or duties hereunder.
As security for the performance of the obligations of the Company under
this Section 6.07 then past due, the Trustee shall have a lien prior to the
Securities on all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, premium (if any) or
interest on or any Additional Amounts with respect to particular Securities.
Any expenses and compensation for any services rendered by the Trustee
after the occurrence of an Event of Default specified in clause (5) or (6) of
Section 5.01 shall constitute expenses and compensation for services of
administration under all applicable federal or state bankruptcy, insolvency,
reorganization or other similar laws.
The provisions of this Section 6.07 and any lien arising hereunder shall
survive the resignation or removal of the Trustee or the discharge of the
Company's obligations under this Indenture and the termination of this
Indenture.
42
Section 6.08. Disqualification; Conflicting Interests.
---------------------------------------
If the Trustee shall have or acquire any conflicting interest within the
meaning of the Trust Indenture Act, it shall either eliminate such conflicting
interest or resign to the extent, in the manner and with the effect, and subject
to the conditions, provided in the Trust Indenture Act and this Indenture. For
purposes of Section 310(b)(1) of the Trust Indenture Act and to the extent
permitted thereby, the Trustee shall not be deemed to have a conflicting
interest by virtue of being a Trustee under (i) this Indenture with respect to
debt Securities of more than one series, or (ii) the Indenture (For Subordinated
Debt Securities), between the Company and the Trustee, dated as of __________,
200___.
Section 6.09. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50 million and subject to supervision or examination by federal or
state (or the District of Columbia) authority. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section 6.09, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 6.09, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article Six.
The Indenture shall always have a Trustee who satisfies the requirements of
Sections 310(a)(1), 310(a)(2) and 310(a)(5) of the Trust Indenture Act.
Section 6.10. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article Six shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of
one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the resigning Trustee within 30 days after the giving
of such notice of resignation, the resigning Trustee may petition at the expense
of the Company any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the Securities
of any series by Act of the Holders of a majority in aggregate principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
43
the Company. If the instrument of acceptance by a successor Trustee required by
Section 6.11 shall not have been delivered to the removed Trustee within 30 days
after the receipt of such notice of removal, the removed Trustee may petition at
the expense of the Company any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after written
request therefor by the Company or by any Holder who has been a bona fide Holder
of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 and shall
fail to resign after written request therefor by the Company or by any such
Holder of Securities, or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall be
appointed or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 5.14, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any cause, with respect
to the Securities of one or more series, the Company, by a Board Resolution,
shall promptly appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of
such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and such successor Trustee or Trustees
shall comply with the applicable requirements of Section 6.11. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company and accepted appointment in the manner required by
Section 6.11, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee with respect to the Securities of any series by mailing
written notice of such event by first-class mail, postage prepaid, to all
44
Holders of Securities of such series as their names and addresses appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
Section 6.11. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder, subject, nevertheless to its
lien, if any, provided for in Section 6.07.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates.
45
(c) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in
Section 6.11(a) or Section 6.11(b), as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article Six.
Section 6.12. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article Six,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities; and in
case at that time any of the Securities shall not have been authenticated, any
successor Trustee may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor Trustee; and in all such
cases such certificates shall have the full force which it is anywhere in the
Securities or in this Indenture provided, provided, however, that the right to
adopt the certificate of authentication of any predecessor Trustee will apply
only to its successor or successors by merger, conversion or consolidation.
Section 6.13. Preferential Collection of Claims Against Company.
-------------------------------------------------
If the Trustee shall be or become a creditor of the Company or any other
obligor upon the Securities (other than by reason of a relationship described in
Section 311(b) of the Trust Indenture Act), the Trustee shall be subject to any
and all applicable provisions of the Trust Indenture Act regarding the
collection of claims against the Company or such other obligor.
Section 6.14. Appointment of Authenticating Agent.
-----------------------------------
The Trustee may appoint an Authenticating Agent or Agents that shall be
authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption or pursuant to Section 3.06, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for
all purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
46
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any state thereof
or the District of Columbia, having a combined capital and surplus of not less
than $50 million or equivalent amount expressed in a foreign currency and
subject to supervision or examination by federal or state (or the District of
Columbia) authority or authority of such country. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section 6.14, the combined capital and surplus of such Authenticating
Agent shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section 6.14, such Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section 6.14.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 6.14, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section 6.14, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first-class mail, postage prepaid, to all
Holders as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section 6.14.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section 6.14.
If an appointment is made pursuant to this Section 6.14, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
"This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
47
-----------------------------------
As Trustee
By:
--------------------------------
As Authenticating Agent
By:
--------------------------------
Authorized Signatory
Notwithstanding any provision of this Section 6.14 to the contrary, if at
any time any Authenticating Agent appointed hereunder with respect to any series
of Securities shall not also be acting as the Security Registrar hereunder with
respect to any series of Securities, then, in addition to all other duties of an
Authenticating Agent hereunder, such Authenticating Agent shall also be
obligated: (i) to furnish to the Security Registrar promptly all information
necessary to enable the Security Registrar to maintain at all times an accurate
and current Security Register; and (ii) prior to authenticating any Security
denominated in a foreign currency, to ascertain from the Company the units of
such foreign currency that are required to be determined by the Company pursuant
to Section 3.02.
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders.
---------------------------------------------------------
With respect to each series of Securities, the Company will furnish or
cause to be furnished to the Trustee:
(1) semi-annually, not more than 15 days after each Regular Record Date
relating to that series (or, if there is no Regular Record Date relating to that
series, on January 1 and July 1), a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders of that series as
of such dates, and
(2) at such other times as the Trustee may reasonably request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content, such list to be dated as of a date not more than 15
days prior to the time such list is furnished;
provided, that so long as the Trustee is the Security Registrar, the Company
shall not be required to furnish or cause to be furnished such a list to the
Trustee. The Company shall otherwise comply with Section 310(a) of the Trust
Indenture Act.
Section 7.02. Preservation of Information; Communications to Holders.
------------------------------------------------------
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of each series contained in the
most recent list furnished to the Trustee as provided in Section 7.01 and the
names and addresses of Holders of each series received by the Trustee in its
48
capacity as Security Registrar. The Trustee may destroy any list furnished to it
as provided in Section 7.01 upon receipt of a new list so furnished. The Trustee
shall otherwise comply with Section 310(a) of the Trust Indenture Act.
(b) Holders of Securities may communicate pursuant to Section 312(b) of the
Trust Indenture Act with other Holders with respect to their rights under this
Indenture or under the Securities. The Company, the Trustee, the Security
Registrar and any other Person shall have the protection of Section 312(c) of
the Trust Indenture Act.
Section 7.03. Reports by Trustee.
------------------
(a) Within 60 days after the end of each year after the execution of this
Indenture, the Trustee shall transmit by mail to Holders a brief report dated as
of the end of such year that complies with Section 313(a) of the Trust Indenture
Act. The Trustee shall comply with Section 313(b) of the Trust Indenture Act.
The Trustee shall transmit by mail all reports as required by Sections 313(c)
and 313(d) of the Trust Indenture Act.
(b) A copy of each report pursuant to Section 7.03(a) shall, at the time of
its transmission to Holders, be filed by the Trustee with each stock exchange
upon which any Securities are listed, with the Commission and with the Company.
The Company will notify the Trustee when any Securities are listed on any stock
exchange.
Section 7.04. Reports by Company.
------------------
The Company shall file with the Trustee, within 30 days after the Company
is required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such portions
of any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended, and shall otherwise comply with Section 314(a) of the
Trust Indenture Act.
Delivery of such 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 Officers' Certificates).
49
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.01. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an entirety
to any Person, unless:
(1) either (a) the Company shall be the surviving Person of such merger or
consolidation or (b) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged, or the Person which acquires,
by sale, lease, conveyance, transfer or other disposition, all or substantially
all of the assets of the Company, shall be organized and validly existing under
the laws of the United States of America, any political subdivision thereof or
any state thereof or the District of Columbia, and shall expressly assume, by a
supplemental indenture, the due and punctual payment of the principal of (and
premium, if any,) and interest on or any Additional Amounts with respect to the
Securities and the performance of the Company's covenants and obligations under
this Indenture and the Securities.
(2) immediately after giving effect to such transaction, and treating any
Debt that becomes an obligation of the Company or a Subsidiary of the Company as
a result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no Default or Event of Default,
shall have happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture comply with this Article
Eight and that all conditions precedent herein provided for relating to such
transaction have been complied with.
Section 8.02. Successor Person Substituted.
----------------------------
Upon any consolidation by the Company with or merger by the Company into
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
8.01, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company under this Indenture with the same effect as if such successor
Person had been named as the Company herein, and thereafter, except in the case
of such lease, the predecessor Person shall be relieved of all obligations and
covenants under this Indenture and the Securities.
50
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more amendments, supplements or modifications to this Indenture and to
all or any series of Securities and to documents or instruments ancillary
thereto (by indentures supplemental hereto), in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company (or any
guarantor of all or any series of Securities) and the assumption by any such
successor of the covenants of the Company (or any such guarantor) herein and in
the Securities; or
(2) to add to the covenants of the Company for the benefit of the Holders
of all or any series of Securities (and if such covenants are to be for the
benefit of less than all series of Securities, stating that such covenants are
expressly being included solely for the benefit of such series); or
(3) to add any additional Events of Default with respect to all or any
series of the Securities (and, if such Event of Default is applicable to less
than all series of Securities, specifying the series to which such Event of
Default is applicable); or
(4) to change or eliminate any of the provisions of this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is adversely affected by such change in or
elimination of such provision; or
(5) to provide for one or more guarantees of all or any series of
Securities; or
(6) to supplement any of the provisions of this Indenture to such extent as
shall be necessary to permit or facilitate the defeasance and discharge of any
series of Securities pursuant to Section 4.01; provided, however, that any such
action shall not adversely affect the interest of the Holders of Securities of
such series or any other series of Securities in any material respect; or
(7) to establish the form or terms of Securities of any series as permitted
by Section 2.01 and Section 3.01; or
(8) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Securities of one or more series and to
add to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, pursuant to the requirements of Section 6.11(b); or
51
(9) to comply with the requirements of the Commission in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act; or
(10) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising under
this Indenture, provided such other provisions as may be made shall not
adversely affect the interests of the Holders of Securities of any series in any
material respect; or
(11) to provide for uncertificated Securities in addition to or in place of
certificated Securities, provided such uncertificated Securities are in
registered form for purposes of the Code; or
(12) to provide for the assumption of the Company's obligations to Holders
of Securities in the case of merger or consolidation or a sale in accordance
with the terms of this Indenture.
Section 9.02. Supplemental Indentures With Consent of Holders.
-----------------------------------------------
With the consent of the Holders of a majority in aggregate principal amount
of the Outstanding Securities of all series affected by such supplemental
indenture (acting as one class) (which consent may, but need not, be given in
connection with any tender offer or exchange offer for such Securities), by Act
of said Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may enter into amendments,
supplements or modifications to this Indenture and to all or any such series of
Securities and to documents or instruments ancillary thereto (by indenture or
indentures supplemental hereto) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of all or any of such series of Securities or of any documents or instruments
ancillary thereto or of modifying in any manner the rights of the Holders of
Securities of such series under this Indenture; provided, however, that no such
amendment, supplement or modification shall, without the consent of all the
Holders of Outstanding Securities whose rights are affected thereby,
(1) change the Stated Maturity of the principal of, or any installment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon, any Additional Amounts with respect
thereto or any premium payable upon the redemption thereof, or change any
obligation of the Company to pay Additional Amounts (except as contemplated by
clause (1) of Section 8.01 and permitted by clause (1) of Section 9.01), or
reduce the amount of the principal of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 5.02, or change any Place of Payment (except as
contemplated by Section 10.02) where, or the coin or currency or currencies
(including composite currencies) in which, any Security or any premium or any
interest thereon or Additional Amounts with respect thereto is payable, or
impair the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption, on or after
the Redemption Date), or
52
(2) reduce the percentage in principal amount of Outstanding Securities,
the consent of whose Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section 9.02, Section 5.13 or
Section 10.06, except to increase any percentage set forth therein or to provide
with respect to any particular series the right to condition the effectiveness
of any supplemental indenture as to that series on the consent of the Holders of
a specified percentage of the aggregate principal amount of Outstanding
Securities of such series (which provision may be made pursuant to Section 3.01
without the consent of any Holder) or to provide that certain other provisions
of this Indenture cannot be modified or waived without the consent of the Holder
of each Outstanding Security affected thereby, provided, however, that this
clause (3) shall not be deemed to require the consent of any Holder with respect
to changes in the references to "the Trustee" and concomitant changes in this
Section 9.02 and Section 10.06, or the deletion of this proviso, in accordance
with the requirements of Section 6.11(b) and clause (7) of Section 9.01, or
(4) make any change to any Security in a manner that would cause such
Security not to be at least pari passu in right of payment with the indebtedness
of the Company with which such Security was pari passu in right of payment prior
to such change.
A supplemental indenture that changes or eliminates any covenant or other
provision of this Indenture that has expressly been included solely for the
benefit of one or more particular series of Securities, or that modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section 9.02 to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 9.03. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article Nine or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 6.01) shall be fully protected in relying
upon an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, immunities or liabilities under this
Indenture or otherwise.
53
Section 9.04. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article Nine,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.05. Conformity With Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article Nine shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.06. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article Nine may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
Section 10.01. Payment of Principal, Premium 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,
premium (if any) and interest on and any Additional Amounts with respect to the
Securities of that series in accordance with the terms of such Securities and
this Indenture.
Section 10.02. Maintenance of Office or Agency.
-------------------------------
The Company will maintain in the Borough of Manhattan, City of New York, an
office or agency (which may be an office of the Trustee, the Registrar or the
Paying Agent) where Securities may be presented or surrendered for payment,
where Securities may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Company in respect of Securities and
this Indenture may be served. Unless otherwise designated by the Company by
written notice to the Trustee, such office or agency shall be the office of the
agent of the Trustee in the City of New York which, on the date hereof, is
located at __________________________ , Attention:__________________. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee and the Company hereby appoints the Trustee its agent to receive all
presentations, surrenders, notices and demands.
54
The Company may also from time to time designate one or more other offices
or agencies (in or outside the City of New York) where the Securities of one or
more series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in the Borough of Manhattan, City of
New York, for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency.
Section 10.03. Money for Securities Payments to be Held in Trust.
-------------------------------------------------
If the Company, any Subsidiary or any of their respective Affiliates shall
at any time act as Paying Agent with respect to any series of Securities, such
Paying Agent will, on or before each due date of the principal of, premium (if
any) or interest on or any Additional Amounts with respect to any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum sufficient to pay the principal, premium (if any)
or interest or any Additional Amounts so becoming due until such sums shall be
paid to such Persons or otherwise disposed of as herein provided and will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, the Company will, on or before each due date of the principal of,
premium (if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal of, premium (if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent for any series of Securities other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section 10.03, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of, premium
(if any) or interest on or any Additional Amounts with respect to Securities of
that series in trust for the benefit of the Persons entitled thereto until such
sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities of that series) in the making of any payment of
principal of, premium (if any) or interest on or any Additional Amounts with
respect to the Securities of that series; and
55
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held in
trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which sums were held by the Company or such Paying
Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying
Agent shall be released from all further liability with respect to such sums.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of, premium (if any) or
interest on or any Additional Amounts with respect to any Security of any series
and remaining unclaimed for two years after such principal of, premium (if any)
or interest on or any Additional Amounts with respect to any Securities have
become due and payable shall, unless otherwise required by mandatory provisions
of applicable escheat, or abandoned or unclaimed property law, be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in The Borough of Manhattan, The
City of New York and in such other Authorized Newspapers as the Trustee shall
deem appropriate, notice that such money remains unclaimed and that, after a
date specified herein, which shall not be less than 30 days from the date of
such publication, any unclaimed balance of such money then remaining will,
unless otherwise required by mandatory provisions of applicable escheat, or
abandoned or unclaimed property law, be repaid to the Company.
Section 10.04. Existence.
---------
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
Section 10.05. Statement by Officers as to Default.
-----------------------------------
The Company will deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof so long as any
Security is outstanding hereunder, an Officers' Certificate, complying with
Section 314(a)(4) of the Trust Indenture Act and stating that a review of the
activities of the Company during such year and of performance under this
Indenture has been made under the supervision of the signers thereof and whether
or not to the best of their knowledge, based upon such review, the Company is in
default in the performance, observance or fulfillment of any of its covenants
and other obligations under this Indenture, and if the Company shall be in
56
default, specifying each such default known to them and the nature and status
thereof. One of the officers signing the Officers' Certificate delivered
pursuant to this Section 10.05 shall be the principal executive, financial or
accounting officer of the Company.
For purposes of this Section 10.05, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.
Section 10.06. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any covenant
or condition set forth in Sections 10.01 through 10.05, inclusive, or any
covenant added for the benefit of any series of Securities as contemplated by
Section 3.01 (unless otherwise specified pursuant to Section 3.01) if before or
after the time for such compliance the Holders of a majority in principal amount
of the Outstanding Securities of all series entitled to the benefit of such
covenant or condition (acting as one class) shall, by Act of such Holders,
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
Section 10.07. Additional Amounts.
------------------
If the Securities of a series expressly provide for the payment of
Additional Amounts, the Company will pay to the Holder of any Security of such
series Additional Amounts as expressly provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of,
or premium (if any) or interest on any Security of any series or the net
proceeds received from the sale or exchange of any Security of any series, such
mention shall be deemed to include mention of the payment of Additional Amounts
provided for in this Section 10.07 to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section 10.07 and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where such
express mention is not made.
If the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date with respect
to that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal and any premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company shall furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series who are United
States Aliens without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of that series. If any
57
such withholding shall be required, then such Officers' Certificate shall
specify by country the amount, if any, required to be withheld on such payments
to such Holders of Securities and the Company will pay to such Paying Agent the
Additional Amounts required by this Section 10.07. The Company covenants to
indemnify the Trustee and any Paying Agent for, and to hold them harmless
against any loss, liability or expense reasonably incurred without negligence or
bad faith on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers' Certificate furnished
pursuant to this Section 10.07.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 11.01. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated Maturity
shall be redeemable in accordance with their terms and (except as otherwise
specified as contemplated by Section 3.01 for Securities of any series) in
accordance with this Article Eleven.
Section 11.02. Election to Redeem; Notice to Trustee.
-------------------------------------
Unless otherwise provided with respect to the Securities of a series as
contemplated by Section 3.01, the election of the Company to redeem any
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all the Securities of any series,
the Company shall, at least 40 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction. Any election to redeem Securities will be revocable until the
Company gives a notice of redemption pursuant to Section 11.04 hereof to the
Holders of Securities to be redeemed.
Section 11.03. Selection by Trustee of Securities to be Redeemed.
-------------------------------------------------
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not less than 30 days nor
more than 60 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities of such series not previously called for redemption, by
such method as the Trustee shall deem fair and appropriate and that may provide
for the selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a denomination larger than
the minimum authorized denomination for Securities of that series or of the
principal amount of global Securities of such series.
58
The Trustee shall promptly notify the Company and the Security Registrar in
writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the principal amount of such Securities which has been or is to be redeemed.
Section 11.04. Notice of Redemption.
--------------------
Notice of redemption shall be given in the manner provided in Section 1.07
to each Holder of Securities to be redeemed not less than 30 nor more than 60
days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price (together with accrued
and unpaid interest and any Additional Amounts to the Redemption Date payable as
provided in Section 11.06 hereof) will become due and payable upon each such
Security, or the portion thereof, to be redeemed,
(5) that unless the Company defaults in the payment of the Redemption Price
and any applicable accrued interest, interest on each such Security, or the
portion thereof, to be redeemed will cease to accrue on and after the Redemption
Date,
(6) the place or places where such Securities are to be surrendered for
payment of the Redemption Price,
(7) that the redemption is for a sinking fund, if such is the case, and
(8) the "CUSIP" number, if applicable.
A notice of redemption as contemplated by Section 1.07 need not identify
particular Securities to be redeemed. Notice of redemption of Securities to be
redeemed at the election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the Company.
59
Section 11.05. Deposit of Redemption Price.
---------------------------
On or before 11:00 a.m., New York City time, on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, and any Additional Amounts with respect to, all the
Securities which are to be redeemed on that date.
Section 11.06. Securities Payable on Redemption Date.
-------------------------------------
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
(and any Additional Amounts) to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
3.07.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal of and premium (if any) shall, until paid,
bear interest from the Redemption Date at the rate prescribed therefor in the
Security or, in the case of Original Issue Discount Securities, the Securities'
Yield to Maturity.
Section 11.07. Securities Redeemed in Part.
---------------------------
Any Security that is to be redeemed only in part shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and Stated Maturity, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
Unless otherwise specified for a series of Securities as contemplated by
Section 3.01, the Company and any Affiliate of the Company may at any time
purchase or otherwise acquire Securities in the open market or by private
agreement. Such acquisition shall not operate as or be deemed for any purpose to
be a redemption of the indebtedness represented by such Securities. Any
60
Securities purchased or acquired by the Company may be delivered to the Trustee
and, upon such delivery, the indebtedness represented thereby shall be deemed to
be satisfied. Section 3.09 shall apply to all Securities so delivered.
ARTICLE TWELVE
SINKING FUNDS
Section 12.01. Applicability of Article.
------------------------
The provisions of this Article Twelve shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 3.01 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a "mandatory sinking fund
payment," and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". Unless otherwise provided by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 12.02. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 12.02. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
The Company (1) may deliver Outstanding Securities of a series (other than
any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company
pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, in each
case in satisfaction of all or any part of any sinking fund payment with respect
to the Securities of such series required to be made pursuant to the terms of
such Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking payment shall be reduced accordingly.
Section 12.03. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 45 days prior (unless a shorter period shall be satisfactory
to the Trustee) to each sinking fund payment date for any series of Securities,
the Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivery of or by crediting Securities of that series pursuant to Section 12.02
and will also deliver to the Trustee any Securities to be so delivered. Not less
than 30 days before each such sinking fund payment date the Trustee shall select
the Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 11.03 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided in
61
Section 11.04. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
11.06 and 11.07.
ARTICLE THIRTEEN
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 13.01. Company's Option to Effect Legal Defeasance or Covenant
-------------------------------------------------------
Defeasance.
----------
The Company may at its option, at any time elect to have either Section
13.02 or Section 13.03 applied to the Outstanding Securities of any series upon
compliance with the conditions set forth below in this Article Thirteen.
Section 13.02. Legal Defeasance and Discharge.
------------------------------
Upon the Company's exercise of the option provided in Section 13.01
applicable to this Section, the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities of any series on
the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, such legal defeasance means that the Company
shall be deemed (i) to have paid and discharged its obligations under the
Outstanding Securities of such series; provided, however, that the Securities of
such series will continue to be deemed "Outstanding" for purposes of Section
13.05 and the other Sections of this Indenture referred to in clauses (A) and
(B) below, and (ii) to have satisfied all its other obligations under the
Securities of such series and this Indenture insofar as the Securities of such
series are concerned (and the Trustee, at the expense of the Company, shall
execute proper instruments acknowledging the same), except for the following,
which shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of the Securities of such series to receive, solely from the
trust fund described in Section 13.04 and as more fully set forth in such
Section, payments in respect of the principal of and any premium and interest on
the Securities of such series when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 3.04, 3.05, 3.06,
10.02 and 10.03, (C) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and (D) this Article Thirteen. Subject to compliance with this
Article Thirteen, the Company may exercise its option under this Section 13.02
notwithstanding the prior exercise of its option under Section 13.03.
Section 13.03. Covenant Defeasance.
-------------------
Upon the Company's exercise of the option provided in Section 13.01
applicable to this Section, (i) the Company shall be released from its
obligations with respect to the Securities of such series under Section 8.01,
Section 10.06 and Section 10.07, and any covenants provided pursuant to Section
3.01 for the benefit of the Holders of such Securities (unless otherwise so
provided pursuant to Section 3.01), (ii) the occurrence of an event specified in
Sections 5.01(3) or (4) shall not be deemed to be an Event of Default with
respect to the Securities of such series on and after the date the conditions
62
set forth below are satisfied, and (iii) the Securities of such series will
thereafter be deemed not to be "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with such covenants, but will continue to be deemed
"Outstanding" for all other purposes hereunder (hereinafter, "Covenant
Defeasance"). For this purpose, such Covenant Defeasance means that, with
respect to the Securities of such series, the Company may omit to comply with
and shall have no liability in respect of any term, condition or limitation set
forth in any such Section or clause whether directly or indirectly by reason of
any reference elsewhere herein to any such Section or clause or by reason of any
reference in any such Section or clause to any other provision herein or in any
other document, but the remainder of this Indenture and such Securities shall be
unaffected thereby.
Section 13.04. Conditions to Legal Defeasance or Covenant Defeasance.
-----------------------------------------------------
The following shall be the conditions to application of either Section
13.02 or Section 13.03 to the then Outstanding Securities of any series:
(1) The Company shall irrevocably have deposited or caused to be deposited
with the Trustee (or another trustee satisfying the requirements of Section 6.09
who shall agree to comply with the provisions of this Article Thirteen
applicable to it) 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 the Securities of such series, (A) money in an
amount, or (B) Government Obligations which through the scheduled payment of
principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment, money in an
amount, or (C) a combination thereof, sufficient, in the opinion of a nationally
recognized firm of independent public accountants or a nationally recognized
investment banking firm expressed in a written certification thereof delivered
to the Trustee, (if such firms at such time customarily deliver such
certifications, and, if not, such certification may be from the principal
financial officer of the Company), to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge, the
principal of, premium, if any, and each installment of interest on and any
Additional Amounts with respect to the Securities of such series on the Stated
Maturity of such principal or installment of interest in accordance with the
terms of this Indenture and of the Securities of such series.
(2) In the event of an election to have Section 13.02 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling, or (y) since the date 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 shall confirm that, the Holders of the Outstanding
Securities of such series will not recognize 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 the same amount, in the same manner and at the
same times as would have been the case if such deposit, defeasance and discharge
had not occurred;
63
(3) In the event of an election to have Section 13.03 apply to any
Securities or any series of Securities, as the case may be, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize 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 amount, in the
same manner and at the same times as would have been the case if such deposit
and covenant defeasance had not occurred;
(4) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, together stating that all conditions
precedent provided for relating to either the legal defeasance under Section
13.02 or the covenant defeasance under Section 13.03 (as the case may be) have
been complied with;
(5) Such legal defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company as defined in
the Investment Company Act, or such trust shall be qualified under such act or
exempt from regulation thereunder;
Section 13.05. Deposited Money and Government Obligations to be Held in
--------------------------------------------------------
Trust; Other Miscellaneous Provisions.
--------------------------------------
Subject to the provisions of the last paragraph of Section 10.03, all money
and Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee (solely for purposes of this Section and
Section 13.06, the Trustee and any such other trustee are referred to
collectively as the "Trustee") pursuant to Section 13.04 in respect of the
Securities of such series shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities of such series and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of the Securities of such series, of all sums due and
to become due thereon in respect of principal (and premium, if any) and interest
and any Additional Amounts, but such money need not be segregated from other
funds except to the extent required by law. The Company shall pay and indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against
the Government Obligations deposited pursuant to Section 13.04 or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the Outstanding
Securities. Anything in this Article Thirteen to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations held by it as provided in Section
13.04 which, in the opinion of a nationally recognized firm of independent
public accountants (or a nationally recognized investment banking firm or the
principal financial officer of the Company, as appropriate) expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent legal defeasance or covenant defeasance.
64
Section 13.06. Reinstatement.
-------------
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 13.02 or 13.03 by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, then the Company's obligations under this Indenture and the
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to this Article Thirteen until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
13.02 or 13.03; provided, however, that if the Company makes any payment of
principal of (and premium, if any) or interest or Additional Amounts on any
Security following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of the Securities of such series to
receive such payment from the money held by the Trustee or the Paying Agent.
Section 13.07. Deposited Money and Government Obligations to be Held in Trust.
--------------------------------------------------------------
Subject to the provisions of the last paragraph of Section 10.03, all money
and Government Obligations (or other property as may be provided pursuant to
Section 3.01) (including the proceeds thereof) deposited with the Trustee
pursuant to Section 13.04 in respect of any Securities of any series shall be
held in trust and applied by the Trustee, in accordance with the provisions of
such Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, if
any, and Additional Amounts, if any, but such money need not be segregated from
other funds except as provided herein and except to the extent required by law.
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 14.01. Purposes for Which Meetings May Be Called.
-----------------------------------------
A meeting of Holders of Securities of any or all series may be called at
any time and from time to time pursuant to this Article Fourteen to make, give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be made, given or taken by Holders
of Securities of such series.
Section 14.02. Call, Notice and Place of Meetings.
----------------------------------
(a) The Trustee may at any time call a meeting of Holders of Securities of
any series for any purpose specified in Section 14.01, to be held at such time
and at such place in The Borough of Manhattan, The City of New York, or in any
other location as the Trustee shall determine. Notice of every meeting of
Holders of Securities of any series, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 1.07, not less than
20 nor more than 180 days prior to the date fixed for the meeting.
65
(b) In case at any time the Company, pursuant to a Board Resolution, or the
Holders of at least 20% in aggregate principal amount of the Outstanding
Securities of any series, shall have requested the Trustee for any such series
to call a meeting of the Holders of Securities of such series for any purpose
specified in Section 14.01, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not
have made the first publication of the notice of such meeting within 20 days
after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be, may
determine the time and the place in San Antonio, Texas, or in The Borough of
Manhattan, The City of New York, for such meeting and may call such meeting for
such purposes by giving notice thereof as provided in Section 14.02(a).
Section 14.03. Persons Entitled to Vote at Meetings.
------------------------------------
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 14.04. Quorum; Action.
--------------
The Persons entitled to vote a majority in aggregate principal amount of
the Outstanding Securities of a series shall constitute a quorum for a meeting
of Holders of Securities of such series. In the absence of a quorum within 30
minutes of the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case, the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting. Subject to Section 14.05(d), notice of the reconvening of any
adjourned meeting shall be given as provided in Section 14.02(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly that Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such series shall
constitute a quorum.
Except as limited by the proviso to Section 9.02, any resolution presented
to a meeting or adjourned meeting duly reconvened at which a quorum is present
as aforesaid may be adopted by the affirmative vote of the Holders of a majority
in aggregate principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 9.02, any
resolution with respect to any request, demand, authorization, direction,
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notice, consent or waiver which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage that is less than a
majority in aggregate principal amount of the Outstanding Securities of a series
may be adopted at a meeting or an adjourned meeting duly reconvened and at which
a quorum is present as aforesaid by the affirmative vote of the Holders of such
specified percentage in aggregate principal amount of the Outstanding Securities
of that series.
Except as limited by the proviso to Section 9.02, any resolution passed or
decision taken at any meeting of Holders of Securities of any series duly held
in accordance with this Section 14.04 shall be binding on all the Holders of
Securities of such series, whether or not present or represented at the meeting.
Section 14.05. Determination of Voting Rights; Conduct and
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Adjournment of Meetings.
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(a) The holding of Securities shall be proved in the manner specified in
Section 1.05 and the appointment of any proxy shall be proved in the manner
specified in Section 1.05. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 1.05 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Securities as provided in Section 14.02(b), in which
case the Company or the Holders of Securities of the series calling the meeting,
as the case may be, shall appoint a temporary chairman. A permanent chairman and
a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in aggregate principal amount of the Outstanding
Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series and each proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or as a proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant
to Section 14.02 at which a quorum is present may be adjourned from time to time
by Persons entitled to vote a majority in aggregate principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 14.06. Counting Votes and Recording Action of Meetings.
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The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
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the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such notice was given as provided in Section 14.02 and, if
applicable, Section 14.04. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
* * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, all as of the day and year first above written.
ABRAXAS PETROLEUM CORPORATION
By:
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Name:
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Title:
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By:
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Name:
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Title:
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