SEAGULL ENERGY CORPORATION
AND
THE BANK OF NEW YORK
Senior Subordinated Indenture
Dated as of July 15, 1993
CROSS REFERENCE SHEET*
Provisions of Trust Indenture Act of 1939 and Indenture to be dated as of
July 15, 1993 between SEAGULL ENERGY CORPORATION and The Bank of New York,
Trustee:
Section of the Act Section of Indenture
310(a)(1), (2) and (5)............................................................... 6.9
310(a)(3) and (4).................................................................... Inapplicable
310(b)............................................................................... 6.8 and 6.10(a), (b)
and (d)
310(c)............................................................................... Inapplicable
311(a)............................................................................... 6.13(a) and (c)
311(b)............................................................................... 6.13(b) and (c)
311(c)............................................................................... Inapplicable
312(a)............................................................................... 4.1 and 4.2(a)
312(b)............................................................................... 4.2(a) and (b)(i)
and (ii)
312(c)............................................................................... 4.2(c)
313(a)............................................................................... 4.4(a)(i), (ii),
(iii), (iv), (v),
(vi) and (vii)
313(a)(5)............................................................................ Inapplicable
313(b)(1)............................................................................ Inapplicable
313(b)(2)............................................................................ 4.4(b)
313(c)............................................................................... 4.4(c)
313(d)............................................................................... 4.4(d)
314(a)............................................................................... 4.3
314(b)............................................................................... Inapplicable
314(c)(1) and (2).................................................................... 11.5
314(c)(3)............................................................................ Inapplicable
314(d)............................................................................... Inapplicable
314(e)............................................................................... 11.5
314(f)............................................................................... Inapplicable
315(a), (c) and (d).................................................................. 6.1
315(b)............................................................................... 5.8
315(e)............................................................................... 5.9
316(a)(1)............................................................................ 5.7
316(a)(2)............................................................................ Not required
316(a) (last sentence)............................................................... 7.4
316(b)............................................................................... 5.4
317(a)............................................................................... 5.2
317(b)............................................................................... 3.5(a)
318(a)............................................................................... 11.7
ARTICLE ONE
DEFINITIONS
Affiliate....................................................................................................... 1
Asset Sale...................................................................................................... 2
Authenticating Agent............................................................................................ 2
Bankruptcy Code................................................................................................. 2
Board of Directors.............................................................................................. 2
Board Resolution................................................................................................ 2
Business Day.................................................................................................... 2
Commission...................................................................................................... 2
Consolidated Net Tangible Assets................................................................................ 2
Corporate Trust Office.......................................................................................... 2
Depositary...................................................................................................... 2
EBITDA.......................................................................................................... 3
EBITDA/Interest Ratio........................................................................................... 3
ENSTAR Alaska................................................................................................... 3
Event of Default................................................................................................ 3
Global Security................................................................................................. 3
Holder.......................................................................................................... 3
Holder of Securities............................................................................................ 3
Securityholder.................................................................................................. 3
Indebtedness.................................................................................................... 3
Indenture....................................................................................................... 4
interest........................................................................................................ 4
Issuer.......................................................................................................... 4
Issuer Order.................................................................................................... 4
Officers' Certificate........................................................................................... 4
Opinion of Counsel.............................................................................................. 4
original issue date............................................................................................. 4
original issue discount......................................................................................... 4
Original Issue Discount Security................................................................................ 5
Outstanding..................................................................................................... 5
Periodic Offering............................................................................................... 5
Person.......................................................................................................... 5
Place of Payment................................................................................................ 5
principal....................................................................................................... 5
principal amount................................................................................................ 6
Principal Property.............................................................................................. 6
record date..................................................................................................... 6
Responsible Officer............................................................................................. 6
Restricted Subsidiary........................................................................................... 6
Sale and Leaseback Transaction.................................................................................. 6
Secured Debt.................................................................................................... 6
Security........................................................................................................ 6
Securities...................................................................................................... 6
Senior Indebtedness............................................................................................. 6
Senior Subordinated Indebtedness................................................................................ 6
Subordinated Indebtedness....................................................................................... 7
Subsidiary...................................................................................................... 7
Trust Indenture Act of 1939..................................................................................... 7
Trustee......................................................................................................... 7
Unrestricted Subsidiary......................................................................................... 7
U.S. Government Obligations..................................................................................... 7
vice president.................................................................................................. 7
Yield to Maturity............................................................................................... 7
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally............................................................................... 8
SECTION 2.2 Form of Trustee's Certificate of Authentication............................................... 8
SECTION 2.3 Amount Unlimited, Issuable in Series.......................................................... 8
SECTION 2.4 Authentication and Delivery of Securities..................................................... 10
SECTION 2.5 Execution of Securities....................................................................... 12
SECTION 2.6 Certificate of Authentication................................................................. 13
SECTION 2.7 Denomination and Date of Securities; Payments of Interest..................................... 13
SECTION 2.8 Registration Transfer and Exchange............................................................ 13
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities..................................... 15
SECTION 2.10 Cancellation of Securities; Disposition Thereof............................................... 16
SECTION 2.11 Temporary Securities.......................................................................... 16
SECTION 2.12 CUSIP Numbers................................................................................. 16
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest............................................................. 17
SECTION 3.2 Offices for Notices and Payments, etc......................................................... 17
SECTION 3.3 No Interest Extension......................................................................... 17
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office............................................ 17
SECTION 3.5 Provision as to Paying Agent.................................................................. 17
SECTION 3.6 Restriction on Creation of Secured Debt....................................................... 18
SECTION 3.7 Restriction on Sale and Leaseback Transactions................................................ 19
SECTION 3.8 Restriction on Transfer of Principal Property to Unrestricted Subsidiary...................... 20
SECTION 3.9 Restriction on Incurrence of Indebtedness by Restricted Subsidiaries.......................... 20
SECTION 3.10 Limitation on Incurrence of Additional Indebtedness........................................... 21
SECTION 3.11 Limitation on Issuance of Certain Other Subordinated Indebtedness............................. 21
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of Securityholders........... 22
SECTION 4.2 Preservation and Disclosure of Securityholders Lists.......................................... 22
SECTION 4.3 Reports by the Issuer......................................................................... 23
SECTION 4.4 Reports by the Trustee........................................................................ 23
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default............................................................................. 25
SECTION 5.2 Payment of Securities on Default; Suit Therefor............................................... 27
SECTION 5.3 Application of Moneys Collected by Trustee.................................................... 28
SECTION 5.4 Proceedings by Securityholders................................................................ 28
SECTION 5.5 Proceedings by Trustee........................................................................ 29
SECTION 5.6 Remedies Cumulative and Continuing............................................................ 29
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by Majority of Securityholders................... 29
SECTION 5.8 Notice of Defaults............................................................................ 30
SECTION 5.9 Undertaking to Pay Costs...................................................................... 30
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default.................. 30
SECTION 6.2 Certain Rights of the Trustee................................................................. 31
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or Application
of Proceeds Thereof......................................................................... 32
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc...................................... 32
SECTION 6.5 Moneys Held by Trustee........................................................................ 32
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior Claim............................... 32
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc........................................ 33
SECTION 6.8 Qualification of Trustee; Conflicting Interests............................................... 33
SECTION 6.9 Persons Eligible for Appointment as Trustee................................................... 37
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee..................................... 38
SECTION 6.11 Acceptance of Appointment by Successor Trustee................................................ 39
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business of Trustee........................ 39
SECTION 6.13 Preferential Collection of Claims Against the Issuer.......................................... 40
SECTION 6.14 Appointment of Authenticating Agent........................................................... 42
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders................................................... 43
SECTION 7.2 Proof of Execution of Instruments and of Holding of Securities................................ 43
SECTION 7.3 Holders to be Treated as Owners............................................................... 44
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding............................................. 44
SECTION 7.5 Right of Revocation of Action Taken........................................................... 44
SECTION 7.6 Record Date for Consents and Waivers.......................................................... 45
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders.................................... 45
SECTION 8.2 Supplemental Indentures with Consent of Securityholders....................................... 46
SECTION 8.3 Effect of Supplemental Indenture.............................................................. 47
SECTION 8.4 Documents to Be Given to Trustee.............................................................. 47
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures.................................. 47
SECTION 8.6 Subordination Unimpaired...................................................................... 47
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER DISPOSITION
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms................................................ 48
SECTION 9.2 Securities to be Secured in Certain Events.................................................... 48
SECTION 9.3 Successor Corporation to be Substituted....................................................... 48
SECTION 9.4 Opinion of Counsel to be Given Trustee........................................................ 49
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture....................................................... 49
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of Securities........................... 51
SECTION 10.3 Repayment of Moneys Held by Paying Agent...................................................... 51
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years..................... 51
SECTION 10.5 Indemnity for U.S. Government Obligations..................................................... 51
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and Directors of Issuer Exempt
from Individual Liability.................................................................... 52
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and Holders of Securities............. 52
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture........................................... 52
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of Securities.............................. 52
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements to Be Contained Therein............ 52
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays............................................... 53
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act of 1939....................... 53
SECTION 11.8 GOVERNING LAW................................................................................. 53
SECTION 11.9 Counterparts.................................................................................. 54
SECTION 11.10 Effect of Headings............................................................................ 54
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article...................................................................... 54
SECTION 12.2 Notice of Redemption; Partial Redemptions..................................................... 54
SECTION 12.3 Payment of Securities Called for Redemption................................................... 55
SECTION 12.4 Exclusion of Certain Securities from Eligibility for Selection for Redemption................. 55
SECTION 12.5 Mandatory and Optional Sinking Funds.......................................................... 55
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1 Securities Subordinated to Senior Indebtedness................................................ 57
SECTION 13.2 Reliance on Certificate of Liquidating Agent; Further Evidence as to Ownership of
Senior Indebtedness ........................................................................ 59
SECTION 13.3 Payment Permitted If No Default............................................................... 60
SECTION 13.4 Disputes with Holders of Certain Senior Indebtedness.......................................... 60
SECTION 13.5 Trustee Not Charged with Knowledge of Prohibition............................................. 60
SECTION 13.6 Trustee to Effectuate Subordination........................................................... 61
SECTION 13.7 Rights of Trustee as Holder of Senior Indebtedness............................................ 61
SECTION 13.8 Article Applicable to Paying Agents........................................................... 61
SECTION 13.9 Subordination Rights Not Impaired by Acts or Omissions of the Issuer or Holders
of Senior Indebtedness...................................................................... 61
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior Indebtedness...................................... 61
THIS SENIOR SUBORDINATED INDENTURE, dated as of July 15, 1993 between
SEAGULL ENERGY CORPORATION, a Texas corporation (the "Issuer"), and The Bank of
New York, a New York banking corporation as trustee (the "Trustee"),
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issuance from time to time of
its unsecured senior subordinated debentures, notes or other evidences of
indebtedness to be issued in one or more series (the "Securities") up to such
principal amount or amounts as may from time to time be authorized in accordance
with the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of this
Indenture to provide, among other things, for the authentication, delivery and
administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture and
agreement according to its terms have been undertaken and completed;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the
Holders (as hereinafter defined) thereof, the Issuer and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the respective
Holders from time to time of the Securities as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 For all purposes of this Indenture and of any indenture
supplemental hereto the following terms shall have the respective meanings
specified in this Section 1.1 (except as otherwise expressly provided or unless
the context otherwise clearly requires). All other terms used in this Indenture
that are defined in the Trust Indenture Act of 1939, including terms defined
therein by reference to the Securities Act of 1933, as amended, shall have the
meanings assigned to such terms in said Trust Indenture Act and in said
Securities Act as in force at the date of this Indenture (except as herein
otherwise expressly provided or unless the context otherwise clearly requires).
All accounting terms used herein and not expressly defined shall have the
meanings assigned to such terms in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" means such
accounting principles as are generally accepted at the time of any computation.
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. The expressions "date of this Indenture", "date
hereof", "date as of which this Indenture is dated" and "date of execution and
delivery of this Indenture" and other expressions of similar import refer to the
effective date of the original execution and delivery of this Indenture, viz.
July 15, 1993.
The terms defined in this Article have the meanings assigned to them in
this Article and include the plural as well as the singular.
"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 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.
"Asset Sale" for any Person shall mean the sale, lease, conveyance or other
disposition (including without limitation by merger or consolidation, and
whether by operation of law or otherwise) of any of that Person's assets
(including without limitation the sale or other disposition of capital stock of
any Subsidiary of such Person, whether by such Person or by such Subsidiary),
whether owned on the date of this Indenture or subsequently acquired, in one
transaction or a series of related transactions, in which such Person and/or its
Subsidiaries receive cash and/or other consideration (including without
limitation the unconditional assumption of Indebtedness of such Person and/or
its Subsidiaries) having an aggregate fair market value of $5 million or more as
to such transaction or series of transactions; provided, however, that the
following shall not constitute Asset Sales: (i) sales of inventories in the
ordinary course of business or pledges of inventories and of accounts receivable
by the Issuer or its Subsidiaries; (ii) transactions between the Issuer and any
of its wholly owned Subsidiaries or among such wholly owned Subsidiaries; and
(iii) the incurrence of any mortgage, security interest, pledge, lien or
encumbrance that secures Secured Debt as permitted by Section 3.6.
"Authenticating Agent" shall have the meaning set forth in Section 6.14.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 United States
Code ss.ss. 101 et seq., or any successor statute thereto.
"Board of Directors" means either the Board of Directors of the Issuer or
any committee of such Board duly authorized to act on its behalf.
"Board Resolutions" means one or more resolutions, certified by the
secretary or an assistant secretary of the Issuer to have been duly adopted or
consented to by the Board of Directors and to be in full force and effect.
"Business Day" means, with respect to any Security, a day that (a) in the
Place of Payment (or in any of the Places of Payment, if more than one) in which
amounts are payable, as specified in the form of such Security, and (b) in the
city in which the Corporate Trust Office is located, is not a day on which
banking institutions are authorized or required by law or regulation to close.
"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 and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act of 1939, then the body performing such duties on such
date.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
included on the most recent consolidated balance sheet of the Issuer and its
Restricted Subsidiaries, less applicable reserves and other properly deductible
items and after deducting therefrom (a) all current liabilities and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, all in accordance with generally accepted
accounting principles consistently applied.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located in New York, New York.
"Depositary" means, with respect to the Securities of any series issuable
or issued in the form of one or more Global Securities, the Person designated as
Depositary by the Issuer pursuant to Section 2.3 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each Person who is then a
Depositary hereunder, and, if at any time there is more than one such Person,
"Depositary" as used with respect to the Securities of any such series shall
mean the Depositary with respect to the Global Securities of such series.
"EBITDA" shall mean net earnings (excluding gains and losses on sales and
retirement of assets, non-cash write downs and charges resulting from accounting
convention changes) before deduction for federal and state taxes, interest
expense or depreciation, depletion and amortization expense, all determined in
accordance with generally accepted accounting principles.
"EBITDA/Interest Ratio", on any date, shall mean the ratio of (a) EBITDA of
the Issuer and its Restricted Subsidiaries on a consolidated basis to (b)
interest expense on all Indebtedness of the Issuer and its Restricted
Subsidiaries on a consolidated basis for any twelve-month period ending on the
last day of the most recent calendar quarter; provided, however, that if any
calculation of the Issuer's EBITDA/Interest Ratio requires the use of any
quarter prior to the date of the Indenture, such calculation shall be made on a
pro forma basis, giving effect to the issuance of the Securities and the use of
the net proceeds therefrom, as if the same had occurred at the beginning of the
twelve-month period used to make such calculation; and provided further that if
any such calculation requires the use of any quarter prior to the date that any
Asset Sale was consummated, any Indebtedness described in clause (a) of the
definition of Indebtedness was incurred, any capital stock of the Issuer was
issued in a financing transaction or any acquisition other than in the ordinary
course of business was consummated by the Issuer or any Restricted Subsidiary,
such calculation shall be made on a pro forma basis, giving effect to each such
Asset Sale, incurrence of Indebtedness, issuance of capital stock or
acquisition, as the case may be, and the use of any proceeds therefrom, as if
the same had occurred at the beginning of the twelve-month period used to make
such calculation.
"ENSTAR Alaksa" means (i) the division of the Issuer known on the date of
this Indenture as ENSTAR Natural Gas Company, which owns on the date of this
Indenture the gas distribution system in south-central Alaska, and (ii) Alaska
Pipeline Company, an Alaska corporation and a Subsidiary of the Issuer, in each
case together with successors and assigns.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Global Security" means a Security evidencing all or a part of a series of
Securities issued to the Depositary for such series in accordance with Section
2.3 and bearing the legend prescribed in Section 2.4.
"Holder", "Holder of Securities" or other similar terms mean, in the case
of any Security, the person in whose name such Security is registered in the
security register kept by the Issuer for that purpose in accordance with the
terms hereof.
"Indebtedness" means, with respect to any Person,
(a) (i) the principal of and premium, if any, and interest, if any, on
indebtedness for money borrowed of such Person, indebtedness of such Person
evidenced by bonds, notes, debentures or similar obligations, and any guaranty
by such Person of any indebtedness for money borrowed or indebtedness evidenced
by bonds, notes, debentures or similar obligations of any other Person, whether
any such indebtedness or guaranty is outstanding on the date of this Indenture
or is thereafter created, assumed or incurred, (ii) the principal of and
premium, if any, and interest, if any, on indebtedness for money borrowed,
incurred, assumed or guaranteed by such Person in connection with the
acquisition by it or any of its subsidiaries of any other businesses, properties
or other assets and (iii) lease obligations which such Person capitalizes in
accordance with Statement of Financial Accounting Standards No. 13 promulgated
by the Financial Accounting Standards Board or such other generally accepted
accounting principles as may be from time to time in effect;
(b) any other indebtedness of such Person, including any indebtedness
representing the balance deferred and unpaid of the purchase price of any
property or interest therein, and any guaranty, endorsement or other contingent
obligation of such Person in respect of any indebtedness of another that is
outstanding on the date of this Indenture or is thereafter created, assumed or
incurred by such Person;
(c) obligations of such Person under interest rate, commodity or currency
swaps, caps, collars, options and similar arrangements;
(d) obligations of such Person for the reimbursement of any obligor on any
letter of credit, banker's acceptance or similar credit transaction; and
(e) any amendments, modifications, refundings, renewals or extensions of
any indebtedness or obligation described as Indebtedness in clauses (a) through
(d) above.
"Indenture" means this instrument as originally executed and delivered or,
if amended or supplemented as herein provided, as so amended or supplemented or
both, including, for all purposes of this instrument and any such supplement,
the provisions of the Trust Indenture Act of 1939 that are deemed to be a part
of and govern this instrument and any such supplement, respectively, and shall
include the forms and terms of particular series of Securities established as
contemplated hereunder.
The term "interest" means, when used with respect to non-interest bearing
Securities (including, without limitation, any Original Issue Discount Security
that by its terms bears interest only after maturity or upon default in any
other payment due on such Security), interest payable after maturity (whether at
stated maturity, upon acceleration or redemption or otherwise) or after the
date, if any, on which the Issuer becomes obligated to acquire a Security,
whether upon conversion, by purchase or otherwise.
"Issuer" means (except as otherwise provided in Section 6.8) Seagull Energy
Corporation, a Texas corporation, and, subject to Article Nine, its successors
and assigns.
"Issuer Order" means a written statement, request or order of the Issuer
which is signed in its name by the chairman of the Board of Directors, the
president or any vice president of the Issuer.
"Officers' Certificate", when used with respect to the Issuer, means a
certificate signed by the chairman of the Board of Directors, the president, or
any vice president and by the treasurer, any assistant treasurer, the
controller, any assistant controller, the secretary or any assistant secretary
of the Issuer. Each such certificate shall include the statements provided for
in Section 11.5 if and to the extent required by the provisions of such Section
11.5. One of the officers signing an Officers' Certificate given pursuant to
Section 4.3 shall be the principal executive, financial or accounting officer of
the Issuer.
"Opinion of Counsel" means an opinion in writing signed by the chief
counsel of the Issuer or by such other legal counsel who may be an employee of
or counsel to the Issuer and who shall be satisfactory to the Trustee. Each such
opinion shall include the statements provided for in Section 11.5, if and to the
extent required by the provisions of such Section 11.5.
The term "original issue date" of any Security (or portion thereof) means
the earlier of (a) the date of such Security or (b) the date of any Security (or
portion thereof) for which such Security was issued (directly or indirectly) on
registration of transfer, exchange or substitution.
The term "original issue discount" of any debt security, including any
Original Issue Discount Security, means the difference between the principal
amount of such debt security and the initial issue price of such debt security
(as set forth in the case of an Original Issue Discount Security on the face of
such Security).
"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 5.1.
"Outstanding" (except as otherwise provided in Section 6.8), when used with
reference to Securities, shall, subject to the provisions of Section 7.4, mean,
as of any particular time, all Securities authenticated and delivered by the
Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(b) Securities (other than Securities of any series as to which the
provisions of Article Ten hereof shall not be applicable), or portions thereof,
for the payment or redemption of which moneys or U.S. Government Obligations (as
provided for in Section 10.1) in the necessary amount shall have been deposited
in trust with the Trustee or with any paying agent (other than the Issuer) or
shall have been set aside, segregated and held in trust by the Issuer for the
Holders of such Securities (if the Issuer shall act as its own paying agent),
provided that, if such Securities, or portions thereof, are to be redeemed prior
to the maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have been made
for giving such notice; and
(c) Securities which shall have been paid or in substitution for which
other Securities shall have been authenticated and delivered pursuant to the
terms of Section 2.9 (except with respect to any such Security as to which proof
satisfactory to the Trustee is presented that such Security is held by a person
in whose hands such Security is a legal, valid and binding obligation of the
Issuer).
In determining whether the Holders of the requisite aggregate principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the portion of the principal amount
thereof that would be due and payable as of the date of such determination (as
certified by the Issuer to the Trustee) upon a declaration of acceleration of
the maturity thereof pursuant to Section 5.1.
"Periodic Offering" means an offering of Securities of a series from time
to time, the specific terms of which Securities, including, without limitation,
the rate or rates of interest, if any, thereon, the stated maturity or
maturities thereof and the redemption provisions, if any, with respect thereto,
are to be determined by the Issuer or its agents upon the issuance of such
Securities.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint stock company, trust, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment", when used with respect to the Securities of any series,
means the place or places where the principal of and interest, if any, on the
Securities of such series are payable as determined in accordance with Section
2.3.
The term "principal" of a debt security, including any Security, means the
amount (including, without limitation, if and to the extent applicable, any
premium and, in the case of an Original Issue Discount Security, any accrued
original issue discount, but excluding interest) that is payable with respect to
such debt security as of any date and for any purpose (including, without
limitation, in connection with any sinking fund, upon any redemption at the
option of the Issuer, upon any purchase or exchange at the option of the Issuer
or the holder of such debt security and upon any acceleration of the maturity of
such debt security).
The term "principal amount" of a debt security, including any Security,
means the principal amount as set forth on the face of such debt security.
"Principal Property" means any real property, manufacturing plant,
processing plant, pipeline, office building, warehouse or other physical
facility, or any other like depreciable or depletable asset of the Issuer or any
Restricted Subsidiary whether owned at July 1, 1993 or thereafter acquired
(other than any facility thereafter acquired for the control or abatement of
atmospheric pollutants or contaminants or water, noise, odor or other pollution)
which in the opinion of the Board of Directors is of material importance to the
total business conducted by the Issuer and its Restricted Subsidiaries, as a
whole; provided, however, that any such property shall not be deemed a Principal
Property if such property does not have a fair value in excess of 3% of the
total assets included on a consolidated balance sheet of the Issuer and its
Restricted Subsidiaries prepared in accordance with generally accepted
accounting principles consistently applied.
The term "record date" shall have the meaning set forth in Section 2.7.
"Responsible Officer", when used with respect to the Trustee, means any
officer assigned by the Trustee to administer its corporate trust matters.
"Restricted Subsidiary" means (a) any Subsidiary other than an Unrestricted
Subsidiary, and (b) any Subsidiary which was an Unrestricted Subsidiary but
which, subsequent to the date hereof, is designated by the Issuer (by certified
resolution of the Board of Directors delivered to the Trustee) to be a
Restricted Subsidiary; provided, however, that the Issuer may not designate any
such Subsidiary to be a Restricted Subsidiary if the Issuer would thereby breach
any covenant or agreement herein contained (on the assumptions that any
outstanding Indebtedness of such Subsidiary was incurred at the time of such
designation and that any Sale and Leaseback Transaction to which such Subsidiary
is then a party was entered into at the time of such designation).
" Sale and Leaseback" shall have the meaning set forth in Section 3.7.
"Secured Debt" means indebtedness for money borrowed by the Issuer or a
Restricted Subsidiary and any other indebtedness of the Issuer or a Restricted
Subsidiary on which interest is paid or payable (other than indebtedness owed by
a Restricted Subsidiary to the Issuer, by a Restricted Subsidiary to another
Restricted Subsidiary or by the Issuer to a Restricted Subsidiary), that in any
such case is secured by (a) a mortgage or other lien on any Principal Property
of the Issuer or a Restricted Subsidiary, or (b) a pledge, lien or other
security interest on any shares of stock or indebtedness of a Restricted
Subsidiary, or (c) in the case of any such indebtedness of the Issuer, a
guaranty by any Restricted Subsidiary. The amount of Secured Debt at any time
outstanding shall be the amount then owing thereon by the Issuer or a Restricted
Subsidiary.
"Secrity" or "Securities" (except as otherwise provided in Section 6.8) has
the meaning stated in the first recital of this Indenture or, as the case may
be, Securities that have been authenticated and delivered pursuant to this
Indenture.
"Senior Indebtedness" means Indebtedness of the Issuer outstanding at any
time except (a) any Indebtedness as to which, by the terms of the instrument
creating or evidencing the same, it is provided that such Indebtedness is not
senior in right of payment to the Securities, (b) the Securities, (c) any
Indebtedness of the Issuer to a wholly-owned subsidiary of the Issuer, (d)
interest accruing after the filing of a petition initiating any proceeding
referred to in Sections 5.1(e) and 5.1(f) unless such interest is an allowed
claim enforceable against the Issuer in a proceeding under federal or state
bankruptcy laws and (e) trade payables.
"Senior Subordinated Indebtedness" means the Securities and any other
Indebtedness of the Issuer that ranks pari passu with the Securities. Any
Indebtedness of the Issuer that is subordinate or junior by its terms in right
of payment to any other Indebtedness of the Issuer shall be subordinate to
Senior Subordinated Indebtedness unless the instrument creating or evidencing
the same or pursuant to which the same is outstanding specifically provides that
such Indebtedness (i) is to rank pari passu with other Senior Subordinated
Indebtedness and (ii) is not subordinated by its terms to any Indebtedness of
the Issuer which is not Senior Indebtedness.
"Subordinated Indebtedness" means the Securities, any other Senior
Subordinated Indebtedness and any other Indebtedness that is subordinate or
junior in right of payment to Senior Indebtedness.
"Subsidiary" means any corporation of which the Issuer, or the Issuer and
one or more Subsidiaries, or any one or more Subsidiaries, directly or
indirectly own voting securities entitling any one or more of the Issuer and its
Subsidiaries to elect a majority of the directors, either at all times or, so
long as there is no default or contingency which permits the holders of any
other class or classes of securities to vote for the election of one or more
directors.
"Trust Indenture Act of 1939" (except as otherwise provided in Sections 8.1
and 8.2) means the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990, as in force at the date as of which this Indenture
is originally executed.
"Trustee" means the Person identified as "Trustee" in the first paragraph
hereof and, subject to the provisions of Article Six, shall also include any
successor trustee. "Trustee" shall also 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 the Securities of such series.
"Inrestricted Subsidiary" means (a) any Subsidiary acquired or organized
after the date hereof, provided, however, that such Subsidiary shall not be a
successor, directly or indirectly, to any Restricted Subsidiary, and (b) any
Subsidiary whose principal business and assets are located outside the United
States of America, its territories and possessions and Canada or are located in
Puerto Rico, and (c) any Subsidiary the principal business of which consists of
financing or assisting in financing the acquisition or disposition of products
of the Issuer or a Subsidiary by dealers, distributors or other customers, and
(d) any Subsidiary the principal business of which is owning, leasing, dealing
in or developing real property, and (e) any Subsidiary substantially all the
assets of which consist of stock or other securities of a Subsidiary or
Subsidiaries of the character described in clauses (a) through (d) of this
paragraph, unless and until such Subsidiary shall have been designated to be a
Restricted Subsidiary pursuant to clause (b) of the definition of "Restricted
Subsidiary".
"U.S. Government Obligations" shall have the meaning set forth in Section
10.1(B).
The term "vice president," when used with respect to the Issuer or the
Trustee, means any vice president, regardless of whether designated by a number
or a word or words added before or after the title "vice president."
"Yield to Maturity" means the yield to maturity on a series of Securities,
calculated at the time of issuance of such series, or, if applicable, at the
most recent redetermination of interest on such series, and calculated in
accordance with generally accepted financial practice or as otherwise provided
in the terms of such series of Securities.
ARTICLE TWO
SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series shall be
substantially in such form (not inconsistent with this Indenture) as shall be
established by or pursuant to one or more Board Resolutions (as set forth in a
Board Resolution or, to the extent established pursuant to rather than set forth
in a Board Resolution, an Officers' Certificate detailing such establishment) 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 imprinted or otherwise
reproduced thereon such legend or legends or endorsements, not inconsistent with
the provisions of this Indenture, 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 to conform to general usage, all as may be determined by
the officers executing such Securities, as evidenced by their execution 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 of
such Securities.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The Trustee's
certificate of authentication on all Securities shall be substantially as
follows:
This is one of the Securities of the series designated herein referred to
in the within mentioned Indenture.
The Bank of New York, as Trustee
By_______________________________
Authorized Signatory
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, then the Securities of such series shall
bear, in addition to the Trustee's certificate of authentication, an alternate
Certificate of Authentication which shall be substantially as follows:
This is one of the Securities of the series designated herein referred to
in the within mentioned Indenture.
The Bank of New York, as Trustee
By _________________________________
as Authenticating Agent
By__________________________________
Authorized Signatory
SECTION 2.3 Amount Unlimited, Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series and the Securities of
each such series shall rank equally and pari passu with the Securities of each
other series, but all Securities issued hereunder shall be subordinate and
junior in right of payment, to the extent and in the manner set forth in Article
Thirteen, to all Senior Indebtedness. There shall be established in or pursuant
to one or more Board Resolutions (and, to the extent established pursuant to
rather than set forth in a Board Resolution, in an Officers' Certificate
detailing such establishment) or established in one or more indentures
supplemental hereto, prior to the initial issuance of Securities of any series:
(1) the designation of the Securities of the series, which shall
distinguish the Securities of such series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the Securities of the
series that may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to Section
2.8, 2.9, 2.11, 8.5 or 12.3);
(3) the date or dates on which the principal of the Securities of the
series is payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, the date or dates from which any such interest shall accrue,
on which any such interest shall be payable and on which a record shall be taken
for the determination of Holders to whom any such interest is payable or the
method by which such rate or rates or date or dates shall be determined or both;
(5) the place or places where and the manner in which the principal of and
interest, if any, on Securities of the series shall be payable (if other than as
provided in Section 3.2) and the office or agency for the Securities of the
series maintained by the Issuer pursuant to Section 3.2;
(6) the right, if any, of the Issuer to redeem, purchase or repay
Securities of the series, in whole or in part, at its option and the period or
periods within which, the price or prices (or the method by which such price or
prices shall be determined or both) at which, the form or method of payment
therefor if other than in cash and any terms and conditions upon which and the
manner in which (if different from the provisions of Article Twelve) Securities
of the series may be so redeemed, purchased or repaid, in whole or in part,
pursuant to any sinking fund or otherwise;
(7) the obligation, if any, of the Issuer to redeem, purchase or repay
Securities of the series in whole or in part pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a Holder
thereof and the period or periods within which the price or prices (or the
method by which such price or prices shall be determined or both) at which, the
form or method of payment therefor if other than in cash and any terms and
conditions upon which and the manner in which (if different from the provisions
of Article Twelve) Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(9) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
acceleration of the maturity thereof;
(10) whether Securities of the series will be issuable as Global
Securities;
(11) if the Securities of such series are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Security of such
series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates,
documents or conditions;
(12) any trustees, depositaries, authenticating or paying agents, transfer
agents or registrars or any other agents with respect to the Securities of such
series;
(13) any deleted, modified or additional events of default or remedies or
any additional covenants with respect to the Securities of such series;
(14) whether the provisions of Section 10.1(C) will be applicable to
Securities of such series;
(15) any provision relating to the issuance of Securities of such series at
an original issue discount (including, without limitation, the issue price
thereof, the rate or rates at which such original issue discount shall accrue,
if any, and the date or dates from or to which or period or periods during which
such original issue discount shall accrue at such rate or rates);
(16) if the amounts of payments of principal of and interest on the
Securities of such series are to be determined with reference to an index, the
manner in which such amounts shall be determined; and
(17) any other terms of the series (which terms shall not be inconsistent
with the provisions of this Indenture).
All Securities of any one series shall be substantially identical, except
as to denomination and except as may otherwise be provided by or pursuant to the
Board Resolution or Officers' Certificate referred to above or as set forth in
any such indenture supplemental hereto. All Securities of any one series need
not be issued at the same time and may be issued from time to time, consistent
with the terms of this Indenture, if so provided by or pursuant to such Board
Resolution, such Officers' Certificate or in any such indenture supplemental
hereto.
Any such Board Resolution or Officers' Certificate referred to above with
respect to Securities of any series filed with the Trustee on or before the
initial issuance of the Securities of such series shall bc incorporated herein
by reference with respect to Securities of such series and shall thereafter be
deemed to be a part of the Indenture for all purposes relating to Securities of
such series as fully as if such Board Resolution or Officers' Certificate were
set forth herein in full.
SECTION 2.4 Authentication and Delivery of Securities. The Issuer may
deliver Securities of any series executed by the Issuer to the Trustee for
authentication together with the applicable documents referred to below in this
Section 2.4, and the Trustee shall thereupon authenticate and deliver such
Securities to, or upon the order of, the Issuer (contained in the Issuer Order
referred to below in this Section 2.4) or pursuant to such procedures acceptable
to the Trustee and to such recipients as may be specified from time to time by
an Issuer Order. The maturity date, original issue date, interest rate, if any,
and any other terms of the Securities of such series shall be determined by or
pursuant to such Issuer Order and procedures. If provided for in such procedures
and agreed to by the Trustee, such Issuer Order may authorize authentication and
delivery pursuant to oral instructions from the Issuer or its duly authorized
agent, which instructions shall be promptly confirmed in writing. In
authenticating the Securities of such series and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in the case of subparagraphs (2), (3) and
(4) below only at or before the time of the first request of the Issuer to the
Trustee to authenticate Securities of such series) and (subject to Section 6.1)
shall be fully protected in relying upon, unless and until such documents have
been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth
delivery instructions if the Securities of such series are not to be
delivered to the Issuer, provided that, with respect to Securities of a
series subject to a Periodic Offering, (a) such Issuer Order may be
delivered by the Issuer to the Trustee prior to the delivery to the Trustee
of such Securities for authentication and delivery, (b) the Trustee shall
authenticate and deliver Securities of such series for original issue from
time to time, in an aggregate principal amount not exceeding the aggregate
principal amount established for such series, pursuant to an Issuer Order
or pursuant to procedures acceptable to the Trustee as may be specified
from time to time by an Issuer Order, (c) the maturity date or dates,
original issue date or dates, interest rate or rates, if any, and any other
terms of Securities of such series shall be determined by an Issuer Order
or pursuant to such procedures, (d) if provided for in such procedures,
such Issuer Order may authorize authentication and delivery pursuant to
oral or electronic instructions from the Issuer or its duly authorized
agent or agents, which oral instructions shall be promptly confirmed in
writing and (e) after the original issuance of the first Security of such
series to be issued, any separate request by the Issuer that the Trustee
authenticate Securities of such series for original issuance will be deemed
to be a certification by the Issuer that it is in compliance with all
conditions precedent provided for in this Indenture relating to the
authentication and delivery of such Securities;
(2) the Board Resolution, Officers' Certificate or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant
to which the forms and terms of the Securities of such series were
established;
(3) an Officers' Certificate setting forth the form or forms and terms
of the Securities stating that the form or forms and terms of the
Securities have been established pursuant to Sections 2.1 and 2.3 and
comply with this Indenture and covering such other matters as the Trustee
may reasonably request; and
(4) at the option of the Issuer, either an Opinion of Counsel, or a
letter from legal counsel addressed to the Trustee permitting it to rely on
an Opinion of Counsel, substantially to the effect that:
(a) the form or forms of the Securities of such series have been
duly authorized and established in conformity with the provisions of
this Indenture;
(b) in the case of an underwritten offering, the terms of the
Securities of such series have been duly authorized and established in
conformity with the provisions of this Indenture, and, in the case of
an offering that is not underwritten, certain terms of the Securities
of such series have been established pursuant to a Board Resolution,
an Officers' Certificate or a supplemental indenture in accordance
with this Indenture, and when such other terms as are to be
established pursuant to procedures set forth in an Issuer Order shall
have been established, all such terms will have been duly authorized
by the Issuer and will have been established in conformity with the
provisions of this Indenture;
(c) when the Securities of such series have been executed by the
Issuer and authenticated by the Trustee in accordance with the
provisions of this Indenture and delivered to and duly paid for by the
purchasers thereof, they will have been duly issued under this
Indenture and will be valid and legally binding obligations of the
Issuer, enforceable in accordance with their respective terms, and
will be entitled to the benefits of this Indenture; and
(d) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, the Securities of
such series will not contravene any provision of applicable law or the
articles of incorporation or bylaws of the Issuer or any agreement or
other instrument binding upon the Issuer or any of its Subsidiaries
that is material to the Issuer and its Subsidiaries, considered as one
enterprise, or, to such counsel's knowledge after the inquiry
indicated therein, any judgment, order or decree of any governmental
agency or any court having jurisdiction over the Issuer or any
Subsidiary, and no consent, approval or authorization of any
governmental body or agency is required for the performance by the
Issuer of its obligations under the Securities, except such as are
specified and have been obtained and such as may be required by the
securities or blue sky laws of the various states in connection with
the offer and sale of the Securities.
In rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, reorganization, liquidation, moratorium and other similar laws
affecting the rights and remedies of creditors and is subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law). Such counsel may rely, as to all matters
governed by the laws of jurisdictions other than the State of Texas and the
federal law of the United States, upon opinions of other counsel (copies of
which shall be delivered to the Trustee), who shall be counsel reasonably
satisfactory to the Trustee, in which case the opinion shall state that such
counsel believes that both such counsel and the Trustee are entitled so to rely.
Such counsel may also state that, insofar as such opinion involves factual
matters, such counsel has relied, to the extent such counsel deems proper, upon
certificates of officers of the Issuer and its Subsidiaries and certificates of
public officials.
The Trustee shall have the right to decline to authenticate and deliver any
Securities of any series under this Section 2.4 if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken by the Issuer or
if the Trustee in good faith by its board of directors or board of trustees,
executive committee or a trust committee of directors or trustees or Responsible
Officers shall determine that such action would expose the Trustee to personal
liability to existing Holders or would adversely affect the Trustee's own
rights, duties or immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the Securities
of a series are to be issued in the form of one or more Global Securities, then
the Issuer shall execute and the Trustee shall, in accordance with this Section
2.4 and the Issuer Order with respect to such series, authenticate and deliver
one or more Global Securities that (i) shall represent and shall be denominated
in an amount equal to the aggregate principal amount of all of the Securities of
such series to be issued in the form of Global Securities and not yet cancelled,
(ii) shall be registered in the name of the Depositary for such Global Security
or Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions, and
(iv) shall bear a legend substantially to the following effect: "Unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, this Security may not be transferred except as a whole by the
Depositary to the nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary."
Each Depositary designated pursuant to Section 2.3 must, at the time of its
designation and at all times while it serves as Depositary, be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, and any other
applicable statute or regulation.
SECTION 2.5 Execution of Securities. The Securities shall be signed on
behalf of the Issuer by the chairman of the Board of Directors, the president,
any vice president or the treasurer of the Issuer, under its corporate seal
which may, but need not, be attested by its secretary or one of its assistant
secretaries. Such signatures may be the manual or facsimile signatures of the
present or any future such officers. The seal of the Issuer may be in the form
of a facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Securities. Typographical and other minor errors or defects in
any such reproduction of the seal or any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities shall cease to be such officer before the Security so signed shall be
authenticated and delivered by the Trustee or disposed of by the Issuer, such
Security nevertheless may be authenticated and delivered or disposed of as
though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security, shall be the
proper officers of the Issuer, although at the date of the execution and
delivery of this Indenture any such person was not such an officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as shall
bear thereon a certificate of authentication substantially in the form
hereinbefore recited, executed by the Trustee by the manual signature of one of
its authorized signatories, or its Authenticating Agent, shall be entitled to
the benefits of this Indenture or be valid or obligatory for any purpose. The
execution of such certificate by the Trustee or its Authenticating Agent upon
any Security executed by the Issuer shall be conclusive evidence that the
Security so authenticated has been duly authenticated and delivered hereunder
and that the Holder is entitled to the benefits of this Indenture. Each
reference in this Indenture to authentication by the Trustee includes
authentication by an agent appointed pursuant to Section 6.14.
SECTION 2.7 Denomination and Date of Securities; Payments of Interest. The
Securities of each series shall be issuable in registered form in denominations
established as contemplated by Section 2.3 or, with respect to the Securities of
any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of the
Trustee, as evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication. The Securities
of each series shall bear interest, if any, from the date, and such interest, if
any, shall be payable on the dates, established as contemplated by Section 2.3.
The Person in whose name any Security of any series is registered at the
close of business on any record date applicable to a particular series with
respect to any interest payment date for such series shall be entitled to
receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the
record date and prior to such interest payment date, except if and to the extent
the Issuer shall default in the payment of the interest due on such interest
payment date for such series, in which case such defaulted interest shall be
paid to the Persons in whose names Outstanding Securities for such series are
registered (a) at the close of business on a subsequent record date (which shall
be not less than five Business Days prior to the date of payment of such
defaulted interest) established by notice given by mail by or on behalf of the
Issuer to the Holders of Securities not less than 15 days preceding such
subsequent record date or (b) as determined by such other procedure as is
mutually acceptable to the Issuer and the Trustee. The term "record date" as
used with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date
specified as such in the terms of the Securities of such series established as
contemplated by Section 2.3, or, if no such date is so established, if such
interest payment date is the first day of a calendar month, the fifteenth day of
the next preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar month, whether
or not such record date is a Business Day.
SECTION 2.8 Registration Transfer and Exchange. The Issuer will keep at
each office or agency to be maintained for the purpose as provided in Section
3.2 for each series of Securities a register or registers in which, subject to
such reasonable regulations as it may prescribe, it will provide for the
registration of Securities of each series and the registration of transfer of
Securities of such series. Each such register shall be in written form in the
English language or in any other form capable of being converted into such form
within a reasonable time. At all reasonable times such register or registers
shall be open for inspection and available for copying by the Trustee.
Upon due presentation for registration of transfer of any Security of any
series at any such office or agency to be maintained for the purpose as provided
in Section 3.2, the Issuer shall execute and the Trustee shall authenticate and
deliver in the name of the transferee or transferees a new Security or
Securities of the same series, maturity date, interest rate, if any, and
original issue date in authorized denominations for a like aggregate principal
amount.
All Securities presented for registration of transfer shall (if so required
by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the Issuer
and the Trustee duly executed by, the Holder or his attorney duly authorized in
writing.
At the option of the Holder thereof, Securities of any series (other than a
Global Security, except as set forth below) may be exchanged for a Security or
Securities of such series having authorized denominations and an equal aggregate
principal amount, upon surrender of such Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in accordance
with Section 3.2. All Securities surrendered upon any exchange or transfer
provided for in this Indenture shall be promptly cancelled and returned to the
Issuer.
The Issuer 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 of Securities. No service charge shall be made for any
such transaction or for any exchange of Securities of any series as contemplated
by the immediately preceding paragraph.
The Issuer shall not be required to exchange or register a transfer of (a)
any Securities of any series for a period of 15 days next preceding the first
mailing or publication of notice of redemption of Securities of such series to
be redeemed, (b) any Securities selected, called or being called for redemption,
in whole or in part, except, in the case of any Security to be redeemed in part,
the portion thereof not so to be redeemed or (c) any Security if the Holder
thereof has exercised his right, if any, to require the Issuer to repurchase
such Security in whole or in part, except the portion of such Security not
required to be repurchased.
Notwithstanding any other provision of this Section 2.8, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Global Security representing all or a part of the Securities of a series
may not be transferred except as a whole by the Depositary for such series to a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary.
If at any time the Depositary for any Securities of a series represented by
one or more Global Securities notifies the Issuer that it is unwilling or unable
to continue as Depositary for such Securities or if at any time the Depositary
for such Securities shall no longer be eligible under Section 2.4, the Issuer
shall appoint a successor Depositary with respect to such Securities. If a
successor Depositary for such Securities is not appointed by the Issuer within
90 days after the Issuer receives such notice or becomes aware of such
ineligibility, the Issuer's election pursuant to Section 2.3 that such
Securities be represented by one or more Global Securities shall no longer be
effective and the Issuer shall execute, and the Trustee, upon receipt of an
Issuer Order for the authentication and delivery of definitive Securities of
such series, will authenticate and deliver Securities of such series in
definitive registered form, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Global Security or
Securities representing such Securities in exchange for such Global Security or
Securities.
The Issuer may at any time and in its sole discretion determine that the
Securities of any series issued in the form of one or more Global Securities
shall no longer be represented by a Global Security or Securities. In such event
the Issuer shall execute, and the Trustee, upon receipt of an Issuer Order for
the authentication and delivery of definitive Securities of such series, shall
authenticate and deliver, Securities of such series in definitive registered
form, in any authorized denominations, in an aggregate principal amount equal to
the principal amount of the Global Security or Securities representing such
Securities, in exchange for such Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Global Security, the Depositary for such Global
Security may surrender such Global Security in exchange in whole or in part for
Securities of the same series in definitive registered form on such terms as are
acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary, a new Security or
Securities of the same series, of any authorized denominations as requested
by such Person, in an aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in a denomination equal
to the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities
authenticated and delivered pursuant to clause (i) above.
Upon the exchange of a Global Security for Securities in definitive
registered form in authorized denominations, such Global Security shall be
cancelled by the Trustee or an agent of the Issuer or the Trustee. Securities in
definitive registered form issued in exchange for a Global Security pursuant to
this Section 2.8 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or an agent of the Trustee or the Issuer or an agent of the
Issuer. The Trustee or such agent shall deliver at its office such Securities to
or as directed by the Persons in whose names such Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall be
valid and legally binding obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In
case any temporary or definitive Security shall become mutilated, defaced or be
destroyed, lost or stolen, the Issuer in its discretion may execute, and upon
the written request of any officer of the Issuer, the Trustee shall authenticate
and deliver a new Security of the same series, maturity date, interest rate, if
any, and original issue date, bearing a number or other distinguishing symbol
not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and in substitution for the
Security so destroyed, lost or stolen. In every case the applicant for a
substitute Security shall furnish to the Issuer and to the Trustee and any agent
of the Issuer or the Trustee such security or indemnity as may be required by
the Trustee or the Issuer to indemnify and defend and to save each of the
Trustee and the Issuer harmless and, in every case of destruction, loss or
theft, evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof and in the case of mutilation or
defacement, shall surrender the Security to the Trustee or such agent.
Upon the issuance of any substitute Security, the Issuer may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee or its agent) connected therewith. In case any
Security which has matured or is about to mature or has been called for
redemption in full shall become mutilated or defaced or be destroyed, lost or
stolen, the Issuer may instead of issuing a substitute Security, pay or
authorize the payment of the same (without surrender thereof except in the case
of a mutilated or defaced Security), if the applicant for such payment shall
furnish to the Issuer and to the Trustee and any agent of the Issuer or the
Trustee such security or indemnity as any of them may require to hold each of
them harmless, and, in every case of destruction, loss or theft, the applicant
shall also furnish to the Issuer and the Trustee and any agent of the Issuer or
the Trustee evidence to the Trustee's satisfaction of the destruction, loss or
theft of such Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the provisions
of this Section by virtue of the fact that any such Security is destroyed, lost
or stolen shall constitute an additional contractual obligation of the Issuer,
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 (but shall be
subject to all the limitations of rights set forth in) this Indenture equally
and proportionately with any and all other Securities of such series duly
authenticated and delivered hereunder. All Securities shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, destroyed, lost or stolen Securities and shall preclude any
and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
SECTION 2.10 Cancellation of Securities; Disposition Thereof. All
Securities surrendered for payment, redemption, registration of transfer or
exchange, or for credit against any payment in respect of a sinking or analogous
fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee or
any agent of the Trustee, shall be delivered to the Trustee or its agent for
cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no
Securities shall be issued in lieu thereof except as expressly permitted by any
of the provisions of this Indenture. The Trustee or its agent shall return
cancelled Securities to the Issuer. If the Issuer or its agent shall acquire any
of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until
the same are delivered to the Trustee or its agent for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of definitive
Securities for any series, the Issuer may execute and the Trustee shall
authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable in any authorized denomination, and substantially in the form of the
definitive Securities of such series but with such omissions, insertions and
variations as may be appropriate for temporary Securities, all as may be
determined by the Issuer with the concurrence of the Trustee as evidenced by the
execution and authentication thereof. Temporary Securities may contain such
references to any provisions of this Indenture as may be appropriate. Every
temporary Security shall be executed by the Issuer and be authenticated by the
Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities. Without unreasonable delay the Issuer
shall execute and shall furnish definitive Securities of such series and
thereupon temporary Securities of such series may be surrendered in exchange
therefor without charge at each office or agency to be maintained by the Issuer
for that purpose pursuant to Section 3.2 and the Trustee shall authenticate and
deliver in exchange for such temporary Securities of such series an equal
aggregate principal amount of definitive Securities of the same series having
authorized denominations. Until so exchanged, the temporary Securities of any
series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series, unless otherwise established pursuant to Section 2.3.
SECTION 2.12 CUSIP Numbers. The Issuer 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.
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants and
agrees that it will duly and punctually pay or cause to be paid the principal of
and interest, if any, on each of the Securities at the place, at the respective
times and in the manner provided in the Securities.
SECTION 3.2 Offices for Notices and Payments, etc. So long as any of the
Securities are Outstanding, the Issuer will maintain in each Place of Payment,
an office or agency where the Securities may be presented for payment, an office
or agency where the Securities may be presented for registration of transfer and
for exchange as in this Indenture provided, and an office or agency where
notices and demands to or upon the Issuer in respect of the Securities or of
this Indenture may be served. In case the Issuer shall at any time fail to
maintain any such office or agency, or shall fail to give notice to the Trustee
of any change in the location thereof, presentation may be made and notice and
demand may be served in respect of the Securities or of this Indenture at the
Corporate Trust Office. The Issuer hereby initially designates the Corporate
Trust Office for each such purpose and appoints the Trustee as registrar and
paying agent and as the agent upon whom notices and demands may be served with
respect to the Securities.
SECTION 3.3. No Interest Extension. In order to prevent any accumulation of
claims for interest after maturity thereof, the Issuer will not directly or
indirectly extend or consent to the extension of the time for the payment of any
claim for interest on any of the Securities and will not directly or indirectly
be a party to or approve any such arrangement by the purchase or funding of said
claims or in any other manner; provided, however, that this Section 3.3 shall
not apply in any case where an extension shall be made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding.
SECTION 3.4 Appointments to Fill Vacancies in Trustee's Office. The Issuer,
whenever necessary to avoid or fill a vacancy in the office of the Trustee, will
appoint, in the manner provided in Section 6.10, a Trustee, so that there shall
at all times be a Trustee hereunder.
SECTION 3.5 Provision as to Paying Agent. (a) If the Issuer shall appoint a
paying agent other than the Trustee, it will cause such paying agent to execute
and deliver to the Trustee an instrument in which such agent shall agree with
the Trustee, subject to the provisions of this Section 3.5,
(1) that it will hold all sums held by it as such agent for the
payment of the principal of or interest, if any, on the Securities (whether
such sums have been paid to it by the Issuer or by any other obligor on the
Securities) in trust for the benefit of the Holders of the Securities and
the Trustee; and
(2) that it will give the Trustee notice of any failure by the Issuer
(or by any other obligor on the Securities) to make any payment of the
principal of or interest, if any, on the Securities when the same shall be
due and payable; and
(3) that it will, at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent.
(b) If the Issuer shall act as its own paying agent, it will, on or before
each due date of the principal of or interest, if any, on the Securities, set
aside, segregate and hold in trust for the benefit of the Holders of the
Securities a sum sufficient to pay such principal or interest, if any, so
becoming due and will notify the Trustee of any failure to take such action and
of any failure by the Issuer (or by any other obligor under the Securities) to
make any payment of the principal of or interest, if any, on the Securities when
the same shall become due and payable.
(c) Anything in this Section 3.5 to the contrary notwithstanding, the
Issuer may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it, or any paying agent hereunder, as
required by this Section 3.5, such sums to be held by the Trustee upon the
trusts herein contained.
(d) Anything in this Section 3.5 to the contrary notwithstanding, any
agreement of the Trustee or any paying agent to hold sums in trust as provided
in this Section 3.5 is subject to Sections 10.3 and 10.4.
(e) Whenever the Issuer shall have one or more paying agents, it will, on
or before each due date of the principal of or interest, if any, on any
Securities, deposit with a paying agent a sum sufficient to pay the principal or
interest, if any, so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal or interest, if any, and (unless such
paying agent is the Trustee) the Issuer will promptly notify the Trustee of its
action or failure so to act.
SECTION 3.6 Restriction on Creation of Secured Debt. So long as any of the
Securities are outstanding, the Issuer shall not at any time create, incur,
assume or guarantee, and shall not cause, suffer or permit a Restricted
Subsidiary to create, incur, assume or guarantee, any Secured Debt that is
expressly by its terms Subordinated Indebtedness without making effective
provision (and the Issuer covenants that in such case it will make or cause to
be made such effective provision) whereby the Securities then Outstanding and
any other indebtedness of or guaranteed by the Issuer or such Restricted
Subsidiary then entitled thereto, subject to applicable priorities of payment,
shall be secured by such mortgage, security interest, pledge, lien or
encumbrance equally and ratably with any and all other obligations and
indebtedness thereby secured, so long as any such other obligations and
indebtedness shall be so secured; provided, that if any such mortgage, security
interest, pledge, lien or encumbrance securing such Subordinated Indebtedness
ceases to exist, such equal and ratable security for the benefit of the Holders
of Securities shall automatically cease to exist without any further action;
provided further that if such Subordinated Indebtedness is expressly
subordinated to the Securities, the mortgage, security interest, pledge, lien or
encumbrance securing such Subordinated Indebtedness shall be subordinate and
junior to the mortgage, security interest, pledge, lien or encumbrance securing
the Securities with the same relative priority as such Subordinated Indebtedness
shall have with respect to the Securities; provided, further that the foregoing
covenants shall not be applicable to the following:
(a)(i) Any mortgage, security interest, pledge, lien or encumbrance on any
property hereafter acquired (including acquisition through merger or
consolidation) or constructed by the Issuer or a Restricted Subsidiary and
created contemporaneously with, or within twelve months after, such acquisition
or the completion of construction to secure or provide for the payment of all or
any part of the purchase price of such property or the cost of construction
thereof, as the case may be; or (ii) any mortgage on property (including any
unimproved portion of partially improved property) of the Issuer or a Restricted
Subsidiary created within twelve months of completion of construction of a new
plant or plants on such property to secure all or part of the cost of such
construction if, in the opinion of the Board of Directors, such property or such
portion thereof was prior to such construction substantially unimproved for the
use intended by the Issuer; or (iii) the acquisition of property subject to any
mortgage, security interest, pledge, lien or encumbrance upon such property
existing at the time of acquisition thereof, whether or not assumed by the
Issuer or such Restricted Subsidiary; or (iv) any mortgage, security interest,
pledge, lien or encumbrance existing on the property or on the outstanding
shares or indebtedness of a corporation or other entity at the time such
corporation or other entity shall become a Restricted Subsidiary; or (v) any
mortgage, security interest, pledge, lien or encumbrance on property of a
corporation or other entity existing at the time such corporation or other
entity is merged into or consolidated with the Issuer or a Restricted Subsidiary
or at the time of a sale, lease or other disposition of the properties of a
corporation or other entity as an entirety or substantially as an entirety to
the Issuer or a Restricted Subsidiary; or
(b) Mortgages on property of the Issuer or a Restricted Subsidiary in favor
of the United States of America or any State thereof or any foreign government,
or any department, agency or instrumentality or political subdivision of any
thereof, to secure partial, progress, advance or other payments pursuant to any
contract or statute or to secure any indebtedness incurred for the purpose of
financing all or any part of the purchase price or the cost of construction of
the property subject to such mortgages; or
(c) Any mortgage, security interest, pledge, lien or encumbrance existing
on property owned by the Issuer or any of its Subsidiaries on the date of this
Indenture; or
(d) Any mortgage, security interest, pledge, lien or encumbrance created
pursuant to the creation of trusts or other arrangements funded solely with
cash, cash equivalents or other marketable investments or securities of the type
customarily subject to such arrangements in customary financial practice with
respect to long-term or medium-term Indebtedness for money borrowed, the sole
purpose of which is to make provision for the retirement or defeasance, without
prepayment, of Indebtedness; or
(e) Any mortgage, security interest, pledge, lien or encumbrance on the
assets or properties of ENSTAR Alaska; or
(f) Any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any mortgage, security
interest, pledge, lien or encumbrance referred to in the foregoing subparagraphs
(a) through (e); provided, however, that the principal amount of Secured Debt
secured thereby shall not exceed the principal amount outstanding at the time of
such extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to the property which secured the mortgage,
security interest, pledge, lien or encumbrance so extended, renewed or replaced
and additions to such property.
Notwithstanding the foregoing provisions of this Section 3.6, the Issuer
and any one or more Restricted Subsidiaries may create, incur, assume or
guarantee Secured Debt which would otherwise be subject to the foregoing
restrictions in an aggregate amount that, without duplication, together with all
other Secured Debt of the Issuer and its Restricted Subsidiaries which would
otherwise be subject to the foregoing restrictions (not including Secured Debt
permitted to be secured under subparagraphs (a) through (f) above) and the
aggregate value of the Sale and Leaseback Transactions (as defined in Section
3.7) in existence at such time (not including Sale and Leaseback Transactions
the proceeds of which have been or will be applied in accordance with clause (b)
of Section 3.7) and all Indebtedness for money borrowed of Restricted
Subsidiaries in existence at such time (not including Indebtedness permitted to
be incurred under subparagraphs (a) through (e) of Section 3.9), does not at the
time exceed 10% of Consolidated Net Tangible Assets (excluding ENSTAR Alaska).
Solely for purposes of subparagraphs (a) through (f) above, the term "mortgage"
shall include any arrangements in connection with a production payment or
similar financing arrangement.
SECTION 3.7 Restriction on Sale and Leaseback Transactions. The Issuer will
not, and will not permit any Restricted Subsidiary to, sell or transfer (except
to the Issuer or to one or more Restricted Subsidiaries, or both) any Principal
Property owned by it and which has been in full operation for more than 120 days
prior to such sale or transfer with the intention (i) of taking back a lease on
such property (other than a lease for a period not exceeding 36 months) and (ii)
that the use by the Issuer or such Restricted Subsidiary of such property will
be discontinued on or before the expiration of the term of such lease (any such
transaction being herein referred to as a "Sale and Leaseback Transaction"),
unless (a) the Issuer or such Restricted Subsidiary would be entitled, pursuant
to the provisions of Section 3.6, to incur Secured Debt equal in amount to the
amount realized or to be realized upon such sale or transfer secured by a
mortgage on the property to be leased without equally and ratably securing the
Securities, or (b) the Issuer or a Restricted Subsidiary shall apply an amount
equal to the value of the property so leased to the retirement (other than any
mandatory retirement), within 120 days of the effective date of any such
arrangement, of indebtedness for money borrowed by the Issuer or any Restricted
Subsidiary (other than such indebtedness owned by the Issuer or any Restricted
Subsidiary) which was recorded as funded debt as of the date of its creation and
which, in the case of such indebtedness of the Issuer, is not subordinate and
junior in right of payment to the prior payment of the Securities; provided,
however, that the amount to be so applied to the retirement of such indebtedness
shall be reduced by (i) the aggregate principal amount of any Securities
delivered within 120 days of the effective date of any such arrangement to the
Trustee for retirement and cancellation, and (ii) the aggregate principal amount
of such indebtedness (other than the Securities) retired by the Issuer or a
Restricted Subsidiary within 120 days of the effective date of any such
arrangement.
The term "value" shall mean, with respect to a Sale and Leaseback
Transaction, as of any particular time, the amount equal to the greater of (i)
the net proceeds of the sale of the property leased pursuant to such Sale and
Leaseback Transaction, or (ii) the fair value of such property at the time of
entering into such Sale and Leaseback Transaction, as determined by the Board of
Directors, in either case divided first by the number of full years of the term
of the lease and then multiplied by the number of full years of such term
remaining at the time of determination, without regard to any renewal or
extension options contained in the lease.
SECTION 3.8 Restriction on Transfer of Principal Property to Unrestricted
Subsidiary. The Issuer will not itself, and will not permit any Restricted
Subsidiary to, transfer (whether by merger, consolidation or otherwise) any
Principal Property to any Unrestricted Subsidiary, except for fair value as
determined by the Board of Directors, unless it shall apply an amount equal to
the fair value of such property at the time of such transfer, as so determined,
to the retirement (other than any mandatory retirement), within 10 days of the
effective date of such transfer, of indebtedness for money borrowed by the
Issuer or any Restricted Subsidiary (other than such indebtedness owned by the
Issuer or any Restricted Subsidiary) which was recorded as funded debt as of the
date of its creation and which, in case of such indebtedness of the Issuer, is
not subordinate and junior in right of payment to the prior payment of the
Securities; provided, however, that the amount to be so applied to the
retirement of such indebtedness shall be reduced by (i) the aggregate principal
amount of any Securities delivered within 10 days of the effective date of any
such arrangement to the Trustee for retirement and cancellation, and (ii) the
aggregate principal amount of such indebtedness (other than Securities) retired
by the Issuer or a Restricted Subsidiary within 10 days of the effective date of
any such arrangement.
SECTION 3.9 Restriction on Incurrence of Indebtedness by Restricted
Subsidiaries. So long as any of the Securities are outstanding, the Issuer shall
not at any time permit any Restricted Subsidiary to create, incur, assume or
guarantee any Indebtedness for money borrowed; provided that the foregoing
covenant shall not be applicable to the following:
(a) any Indebtedness of ENSTAR Alaska;
(b) any Secured Debt that is permitted to be created, incurred,
assumed or guaranteed pursuant to subparagraphs (a) through (f) of Section
3.6;
(c) any Indebtedness of a Restricted Subsidiary existing at the time
such Restricted Subsidiary was acquired by the Issuer (including without
limitation Indebtedness incurred by such Restricted Subsidiary in
connection with its acquisition by the Issuer);
(d) intercompany Indebtedness owed to the Issuer by any Restricted
Subsidiary and intercompany Indebtedness owed to any wholly owned
Subsidiary of the Issuer by any Restricted Subsidiary; or
(e) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Indebtedness referred
to in the foregoing subparagraphs (a) through (d); provided, however, that
the principal amount of Indebtedness so extended, renewed or replaced shall
not exceed the principal amount outstanding at the time of such extension,
renewal or replacement.
Notwithstanding the foregoing provisions of this Section 3.9, any one or
more Restricted Subsidiaries may create, incur, assume or guarantee Indebtedness
that would otherwise be subject to the foregoing restrictions in an aggregate
amount that, without duplication, together with all Indebtedness of Restricted
Subsidiaries in existence at such time (not including Indebtedness permitted
under subparagraphs (a) through (e) above), all Secured Debt of the Issuer and
its Restricted Subsidiaries in existence at such time (not including Secured
Debt permitted to be secured under subparagraphs (a) through (f) of Section 3.6)
and the aggregate value of Sale and Leaseback Transactions (as defined in
Section 3.7) in existence at such time (not including Sale and Leaseback
Transactions the proceeds of which have been or will be applied in accordance
with clause (b) of Section 3.7) does not at the time exceed 10% of Consolidated
Net Tangible Assets of the Issuer and its Restricted Subsidiaries (excluding
ENSTAR Alaska).
SECTION 3.10 Limitation on Incurrence of Additional Indebtedness. So long
as any of the Securities are outstanding, the Issuer shall not, and shall not
permit any Restricted Subsidiary to, create, incur, assume, guarantee or
otherwise become obligated with respect to any Indebtedness described in clause
(a) of the definition of Indebtedness, unless, after giving effect thereto, the
Issuer's EBITDA/Interest Ratio on the date thereof would be at least 2.5 to 1.0,
determined on a pro forma basis as if the incurrence of such additional
Indebtedness and the application of the net proceeds therefrom had occurred at
the beginning of the twelve-month period used to calculate the Issuer's
EBITDA/Interest Ratio; provided that the foregoing covenant shall not be
applicable to the following:
(a) (i) Indebtedness of the Issuer or any Restricted Subsidiary
outstanding on the date of this Indenture or (ii) Indebtedness of the
Issuer or any Restricted Subsidiary under a revolving credit facility to
the extent that the aggregate commitment thereunder does not exceed $475
million, the maximum aggregate commitment for the Issuer's revolving credit
facility on the date of this Indenture;
(b) intercompany Indebtedness owed to the Issuer by any Restricted
Subsidiary and intercompany Indebtedness owed to any wholly owned
Subsidiary of the Issuer by any Restricted Subsidiary; or
(c) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Indebtedness referred
to in the foregoing subparagraphs (a) through (b); provided, however, that
the principal amount of Indebtedness so extended, renewed or replaced shall
not exceed the principal amount outstanding at the time of such extension,
renewal or replacement.
SECTION 3.11 Limitation on Issuance of Certain Other Subordinated
Indebtedness. The Issuer shall not issue, guarantee, assume or incur, directly
or indirectly, any Indebtedness which by its terms is both (a) subordinate or
junior in right of payment to Senior Indebtedness and (b) senior in right of
payment to the Securities.
ARTICLE FOUR
SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and Addresses
of Securityholders. The Issuer and any other obligor on the Securities covenant
and agree that they will furnish or cause to be furnished to the Trustee a list
in such form as the Trustee may reasonably require of the names and addresses of
the Holders of the Securities of each series:
(a) semiannually and not more than 15 days after each March 1 and
September 1, and
(b) at such other times as the Trustee may request in writing, within
30 days after receipt by the Issuer of any such request,provided that if
and so long as the Trustee shall be the registrar for such series, such
list shall not be required to be furnished.
SECTION 4.2 Preservation and Disclosure of Securityholders Lists. (a) The
Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the Holders of each series of
Securities (i) contained in the most recent list furnished to it as provided in
Section 4.1, and (ii) received by it in the capacity of registrar or paying
agent for such series, if so acting. The Trustee may destroy any list furnished
to it as provided in Section 4.1 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities (hereinafter referred to as
"applicants") apply in writing to the Trustee and furnish to the Trustee
reasonable proof that each such applicant has owned a Security for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Securities of a particular series (in which case the applicants must all hold
Securities of such series) or with Holders of all Securities with respect to
their rights under this Indenture or under such Securities and such application
is accompanied by a copy of the form of proxy or other communication which such
applicants propose to transmit, then the Trustee shall, within five Business
Days after the receipt of such application, at its election, either
(i) afford to such applicants access to the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 4.2, or
(ii) inform such applicants as to the approximate number of Holders of
Securities of such series or of all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee, in accordance with the provisions of subsection (a) of this
Section 4.2, and as to the approximate cost of mailing to such
Securityholders the form of proxy or other communication, if any, specified
in such application.
If the Trustee shall elect not to afford to such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Securityholder of such series or all Holders of Securities, as the
case may be, whose name and address appears in the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) of this
Section 4.2 a copy of the form of proxy or other communication which is
specified in such request, with reasonable promptness after a tender to the
Trustee of the material to be mailed and of payment, or provision for the
payment, of the reasonable expenses of mailing, unless within five days after
such tender, the Trustee shall mail to such applicants and file with the
Commission, together with a copy of the material to be mailed, a written
statement to the effect that, in the opinion of the Trustee, such mailing would
be contrary to the best interests of the Holders of Securities of such series or
of all Securities, as the case may be, or would be in violation of applicable
law. Such written statement shall specify the basis of such opinion. If the
Commission, after opportunity for a hearing upon the objections specified in the
written statement so filed, shall enter an order refusing to sustain any of such
objections or if, after the entry of an order sustaining one or more of such
objections, the Commission shall find, after notice and opportunity for hearing,
that all the objections so sustained have been met, and shall enter an order so
declaring, the Trustee shall mail copies of such material to all such
Securityholders with reasonable promptness after the entry of such order and the
renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding the same,
agrees with the Issuer and the Trustee that neither the Issuer nor the Trustee
nor any agent of the Issuer or the Trustee shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of the
Holders of Securities in accordance with the provisions of subsection (b) of
this Section 4.2, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under such subsection (b).
SECTION 4.3 Reports by the Issuer. The Issuer covenants:
(a) to file with the Trustee, within 15 days after the Issuer 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 Issuer 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; or, if the Issuer is not required to file information, documents or
reports pursuant to either of such Sections, then to file with the Trustee and
the Commission, in accordance with rules and regulations prescribed from time to
time by the Commission, such of the supplementary and periodic information,
docVE LaserJet Series IIVEHP11.PRSational securities exchange as may be
prescribed from time to time in such rules and regulations;
(b) to file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Issuer with
the conditions and covenants provided for in this Indenture as may be required
from time to time by such rules and regulations;
(c) to transmit by mail to the Holders of Securities within 30 days after
the filing thereof with the Trustee, in the manner and to the extent provided in
Section 4.4(c), such summaries of any information, documents and reports
required to be filed by the Issuer pursuant to subsections (a) and (b) of this
Section 4.3 as may be required to be transmitted to such Holders by rules and
regulations prescribed from time to time by the Commission; and
(d) furnish to the Trustee, not less than annually, a brief certificate
from the principal executive officer, principal financial officer or principal
accounting officer as to his knowledge of the Issuer's compliance with all
conditions and covenants under this Indenture. For purposes of this subsection
(d), such compliance shall be determined without regard to any period of grace
or requirement of notice provided under this Indenture.
SECTION 4.4 Reports by the Trustee. (a) Within 60 days after January 1 of
each year commencing with the year 1994, the Trustee shall transmit by mail to
the Holders of Securities, as provided in subsection (c) of this Section, a
brief report dated as of such January 1 with respect to any of the following
events which may have occurred within the last 12 months (but if no such event
has occurred within such period, no report need be transmitted):
(i) any change to its eligibility under Section 6.9 and its
qualification under Section 6.8;
(ii) the creation of, or any material change to, a relationship
specified in paragraph (i) through (x) of Section 6.8 (c);
(iii) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report and
for the reimbursement of which it claims or may claim a lien or charge,
prior to that of the Securities of any series, on any property or funds
held or collected by it as Trustee, except that the Trustee shall not be
required (but may elect) to report such advances if such advances so
remaining unpaid aggregate not more than 1/2 of 1% of the principal amount
of all Securities Outstanding on the date of such report;
(iv) the amount, interest rate, if any, and maturity date of all other
indebtedness owing by the Issuer (or by any other obligor on the
Securities) to the Trustee in its individual capacity on the date of such
report, with a brief description of any property held as collateral
security therefor, except any indebtedness based upon a creditor
relationship arising in any manner described in Section 6.13(b) (2), (3),
(4) or (6);
(v) any change to the property and funds, if any, physically in the
possession of the Trustee (as such) on the date of such report;
(vi) any additional issue of Securities which the Trustee has not
previously reported; and
(vii) any action taken by the Trustee in the performance of its duties
under this Indenture which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of a
default, notice of which has been or is to be withheld by it in accordance
with the provisions of Section 5.8.
(b) The Trustee shall transmit to the Securityholders of each series, as
provided in subsection (c) of this Section 4.4, a brief report with respect to
the character and amount of any advances (and if the Trustee elects so to state,
the circumstances surrounding the making thereof) made by the Trustee, as such,
since the date of the last report transmitted pursuant to the provisions of
subsection (a) of this Section 4.4 (or if no such report has yet been so
transmitted, since the date of this Indenture) for the reimbursement of which it
claims or may claim a lien or charge prior to that of the Securities of such
series on property or funds held or collected by it as Trustee and which it has
not previously reported pursuant to this subsection (b), except that the Trustee
shall not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal amount of
all Securities Outstanding at such time, such report to be transmitted within 90
days after such time.
(c) Reports pursuant to this Section shall be transmitted by mail:
(i) to all Holders of Securities, as the names and addresses of such
Holders appear upon the registry books of the Issuer; and
(ii) to all other Persons to whom such reports are required to be
transmitted pursuant to Section 313(c) of the Trust Indenture Act of 1939.
(d) A copy of each such report shall, at the time of such transmission to
Securityholders, be furnished to the Issuer and be filed by the Trustee with
each stock exchange upon which the Securities of any applicable series are
listed and also with the Commission. The Issuer agrees to promptly notify the
Trustee with respect to any series when and as the Securities of such series
become admitted to trading on any national securities exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 5.1 Events of Default. "Event of Default", wherever used herein
with respect to Securities of any series, means any one or more of the following
events (whatever the reason for such Event of Default and whether it shall be
occasioned by the provisions of Article Thirteen or otherwise), unless it is
either inapplicable to a particular series or it is specifically deleted or
modified in or pursuant to the Board Resolution or supplemental indenture
establishing such series of Securities or in the form of Security, for such
series:
(a) default in the payment of any installment of interest upon any of the
Securities of such series as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or premium, if any, of the
Securities of such series as and when the same shall become due and payable
either at maturity, upon redemption, by declaration or otherwise; or
(c) default in the payment or satisfaction of any sinking fund or other
purchase obligation with respect to Securities of such series, as and when such
obligation shall become due and payable as in this Indenture expressed; or
(d) failure on the part of the Issuer duly to observe or perform any other
of the covenants or agreements on the part of the Issuer in the Securities of
such series or in this Indenture continued for a period of 60 days after the
date on which written notice of such failure, requiring the same to be remedied,
shall have been given to the Issuer by the Trustee by certified or registered
mail, or to the Issuer and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Securities of such series then Outstanding; or
(e) without the consent of the Issuer a court having jurisdiction shall
enter an order for relief with respect to the Issuer under the Bankruptcy Code
or without the consent of the Issuer a court having jurisdiction shall enter a
judgment, order or decree adjudging the Issuer a bankrupt or insolvent, or enter
an order for relief for reorganization, arrangement, adjustment or composition
of or in respect of the Issuer under the Bankruptcy Code or applicable state
insolvency law and the continuance of any such judgment, order or decree is
unstayed and in effect for a period of 90 consecutive days; or
(f) the Issuer shall institute proceedings for entry of an order for relief
with respect to the Issuer under the Bankruptcy Code or for an adjudication of
insolvency, or shall consent to the institution of bankruptcy or insolvency
proceedings against it, or shall file a petition seeking, or seek or consent to
reorganization, arrangement, composition or relief under the Bankruptcy Code or
any applicable state law, or shall consent to the filing of such petition or to
the appointment of a receiver, custodian, liquidator, assignee, trustee,
sequestrator or similar official of the Issuer or of substantially all of its
property, or the Issuer shall make a general assignment for the benefit of
creditors as recognized under the Bankruptcy Code; or
(g) default under any bond, debenture, note or other evidence of
Indebtedness for money borrowed by the Issuer or under any mortgage, indenture
or instrument under which there may be issued or by which there may be secured
or evidenced any Indebtedness for money borrowed by the Issuer, whether such
Indebtedness exists on the date hereof or shall hereafter be created, which
default shall have resulted in such Indebtedness becoming or being declared due
and payable prior to the date on which it would otherwise have become due and
payable, or any default in payment of such Indebtedness (after the expiration of
any applicable grace periods and the presentation of any debt instruments, if
required), if the aggregate amount of all such Indebtedness that has been so
accelerated and with respect to which there has been such a default in payment
shall exceed $25,000,000, without each such default and acceleration having been
rescinded or annulled within a period of ten days after there shall have been
given to the Issuer by the Trustee by certified or registered mail, or to the
Issuer and the Trustee by the Holders of at least 25% in aggregate principal
amount of the Securities of such series then Outstanding, a written notice
specifying each such default and requiring the Issuer to cause each such default
and acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" hereunder; or
(h) any other Event of Default provided with respect to the Securities of
such series.
If an Event of Default with respect to Securities of any series then
Outstanding occurs and is continuing, then and in each and every such case,
unless the principal of all of the Securities of such series shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount of the Securities of such series then Outstanding,
by notice in writing to the Issuer (and to the Trustee if given by
Securityholders), may declare the principal (or, if the Securities of such
series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all the Securities of
such series and the interest, if any, accrued thereon to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, notwithstanding anything to the contrary contained
in this Indenture or in the Securities of such series. This provision, however,
is subject to the condition that, if at any time after the unpaid principal
amount (or such specified amount) of the Securities of such series shall have
been so declared due and payable and before any judgment or decree for the
payment of the moneys due shall have been obtained or entered as hereinafter
provided, the Issuer shall pay or shall deposit with the Trustee a sum
sufficient to pay all matured installments of interest, if any, upon all of the
Securities of such series and the principal of any and all Securities of such
series which shall have become due otherwise than by acceleration (with interest
on overdue installments of interest, if any, to the extent that payment of such
interest is enforceable under applicable law and on such principal at the rate
borne by the Securities of such series to the date of such payment or deposit)
and the reasonable compensation, disbursements, expenses and advances of the
Trustee, and any and all defaults under this Indenture, other than the
nonpayment of such portion of the principal amount of and accrued interest, if
any, on Securities of such series which shall have become due by acceleration,
shall have been cured or shall have been waived in accordance with Section 5.7
or provision deemed by the Trustee to be adequate shall have been made therefor,
then and in every such case the Holders of a majority in aggregate principal
amount of the Securities of such series then Outstanding, by written notice to
the Issuer and to the Trustee, may rescind and annul such declaration and its
consequences; but no such rescission and annulment shall extend to or shall
affect any subsequent default, or shall impair any right consequent thereon. If
any Event of Default with respect to the Issuer specified in Section 5.1(e) or
5.1(f) occurs, all unpaid principal amount (or, if the Securities of any series
then Outstanding are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of each such series) and
accrued interest on all Securities of each series then Outstanding shall ipso
facto become and be immediately due and payable without any declaration or other
act by the Trustee or any Securityholder.
If the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such rescission or annulment or for any other reason or shall have been
determined adversely to the Trustee, then and in every such case the Issuer, the
Trustee and the Securityholders shall be restored respectively to their several
positions and rights hereunder, and all rights, remedies and powers of the
Issuer, the Trustee and the Securityholders shall continue as though no such
proceeding had been taken.
Except with respect to an Event of Default pursuant to Section 5.1 (a), (b)
or (c), the Trustee shall not be charged with knowledge of any Event of Default
unless written notice thereof shall have been given to a Responsible Officer by
the Issuer, a paying agent or any Securityholder.
SECTION 5.2 Payment of Securities on Default; Suit Therefor. The Issuer
covenants that (a) if default shall be made in the payment of any installment of
interest upon any of the Securities of any series then Outstanding as and when
the same shall become due and payable, and such default shall have continued for
a period of 30 days, or (b) if default shall be made in the payment of the
principal of any of the Securities of such series as and when the same shall
have become due and payable, whether at maturity of the Securities of such
series or upon redemption or by declaration or otherwise, then, upon demand of
the Trustee, the Issuer will pay to the Trustee, for the benefit of the Holders
of the Securities, the whole amount that then shall have become due and payable
on all such Securities of such series for principal or interest, if any, or
both, as the case may be, with interest upon the overdue principal and (to the
extent that payment of such interest is enforceable under applicable law) upon
the overdue installments of interest, if any, at the rate borne by the
Securities of such series; and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including a
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
any expenses or liabilities incurred by the Trustee hereunder other than through
its negligence or bad faith.
If the Issuer shall fail forthwith to pay such amounts upon such demand,
the Trustee, in its own name and as trustee of an express trust, shall be
entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or any other obligor on the
Securities of such series and collect in the manner provided by law out of the
property of the Issuer or any other obligor on the Securities of such series,
wherever situated, the moneys adjudged or decreed to be payable.
If there shall be pending proceedings for the bankruptcy or for the
reorganization of the Issuer or any other obligor on the Securities of any
series then Outstanding under any bankruptcy, insolvency or other similar law
now or hereafter in effect, or if a receiver or trustee or similar official
shall have been appointed for the property of the Issuer or such other obligor,
or in the case of any other similar judicial proceedings relative to the Issuer
or other obligor upon the Securities of such series, or to the creditors or
property of the Issuer or such other obligor, the Trustee, irrespective of
whether the principal of the Securities of such series 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 pursuant to the provisions of
this Section 5.2, shall be entitled and empowered by intervention in such
proceedings or otherwise to file and prove a claim or claims for the whole
amount of principal and interest, if any, owing and unpaid in respect of the
Securities of such series, and, in case of any judicial proceedings, to file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and of the Securityholders
allowed in such judicial proceedings relative to the Issuer or any other obligor
on the Securities of such series, its or their creditors, or its or their
property, and to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of its charges and expenses, and any receiver, assignee or trustee or similar
official in bankruptcy or reorganization is hereby authorized by each of the
Securityholders to make such payments to the Trustee, and, if the Trustee shall
consent to the making of such payments directly to the Securityholders, to pay
to the Trustee any amount due it for compensation and expenses, including
counsel fees and expenses incurred by it up to the date of such distribution. To
the extent that such payment of reasonable compensation, expenses and counsel
fees and expenses out of the estate in any such proceedings shall be denied for
any reason, payment of the same shall be secured by a lien on, and shall be paid
out of, any and all distributions, dividends, moneys, securities and other
property which the Holders of the Securities of such series may be entitled to
receive in such proceedings, whether in liquidation or under any plan of
reorganization or arrangement or otherwise.
All rights of action and of asserting claims under this Indenture, or under
any of the Securities, may be enforced by the Trustee without the possession of
any of the Securities, or the production thereof at any trial or other
proceeding relative thereto, and any such suit or proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall be for the ratable benefit of the Holders of the
Securities of the series in respect of which such judgment has been recovered.
SECTION 5.3 Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 5.2 with respect to Securities of
any series then Outstanding shall be applied in the order following, at the date
or dates fixed by the Trustee for the distribution of such moneys, upon
presentation of the several Securities of such series, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of costs and expenses of collection and
reasonable compensation to the Trustee, its agents, attorneys and counsel,
and of all other expenses and liabilities incurred, and all advances made,
by the Trustee pursuant to Section 6.6 except as a result of its negligence
or bad faith;
SECOND: If the principal of the Outstanding Securities of such series
shall not have become due and be unpaid, to the payment of interest, if
any, on the Securities of such series, in the order of the maturity of the
installments of such interest, if any, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest, if any, at the rate borne by the Securities of
such series, such payment to be made ratably to the Persons entitled
thereto;
THIRD: If the principal of the Outstanding Securities of such series
shall have become due, by declaration or otherwise, to the payment of the
whole amount then owing and unpaid upon the Securities of such series for
principal and interest, if any, with interest on the overdue principal and
(to the extent that such interest has been collected by the Trustee) upon
overdue installments of interest, if any, at the rate borne by the
Securities of such series; and in case such moneys shall be insufficient to
pay in full the whole amounts so due and unpaid upon the Securities of such
series, then to the payment of such principal and interest, if any, without
preference or priority of principal over interest or of interest over
principal, or of any installment of interest over any other installment of
interest, or of any Security over any other Security, ratably to the
aggregate of such principal and accrued and unpaid interest; and
FOURTH: To the payment of any surplus then remaining to the Issuer,
its successors or assigns, or to whomsoever may be lawfully entitled to
receive the same.
No claim for interest which in any manner at or after maturity shall have
been transferred or pledged separate or apart from the Securities to which it
relates, or which in any manner shall have been kept alive after maturity by an
extension (otherwise than pursuant to an extension made pursuant to a plan
proposed by the Issuer to the Holders of all Securities of any series then
Outstanding), purchase, funding or otherwise by or on behalf or with the consent
or approval of the Issuer shall be entitled, in case of a default hereunder, to
any benefit of this Indenture, except after prior payment in full of the
principal of all Securities of any series then Outstanding and of all claims for
interest not so transferred, pledged, kept alive, extended, purchased or funded.
SECTION 5.4 Proceedings by Securityholders. No Holder of any Securities of
any series then Outstanding shall have any right by virtue of or by availing of
any provision of this Indenture to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Indenture or for the
appointment of a receiver or trustee or similar official, or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of default and of the continuance thereof, as hereinbefore
provided, and unless the Holders of not less than 25% in aggregate principal
amount of the Securities of such series then Outstanding shall have made written
request to the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding, it being understood and intended,
and being expressly covenanted by the Holder of every Security of such series
with every other taker and Holder and the Trustee, that no one or more Holders
of Securities of such series shall have any right in any manner whatever by
virtue of or by availing of any provision of this Indenture or of the Securities
to affect, disturb or prejudice the rights of any other Holder of such
Securities of such series, or to obtain or seek to obtain priority over or
preference as to any other such Holder, or to enforce any right under this
Indenture or the Securities, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities of such series.
Notwithstanding any other provisions in this Indenture, but subject to
Article Thirteen, the right of any Holder of any Security to receive payment of
the principal of and interest, if any, on such Security, on or after the
respective due dates expressed in such Security, or to institute suit for the
enforcement of any such payment on or after such respective dates shall not be
impaired or affected without the consent of such Holder.
SECTION 5.5 Proceedings by Trustee. In case of an Event of Default
hereunder, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any of such
rights, either by suit in equity or by action at law or by proceedings in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or
agreement contained in this Indenture or in aid of the exercise of any power
granted in this Indenture, or to enforce any other legal or equitable right
vested in the Trustee by this Indenture or by law.
SECTION 5.6 Remedies Cumulative and Continuing. All powers and remedies
given by this Article Five to the Trustee or to the Securityholders shall, to
the extent permitted by law, be deemed cumulative and not exclusive of any
thereof or of any other powers and remedies available to the Trustee or the
Securityholders, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this
Indenture, and no delay or omission of the Trustee or of any Securityholder to
exercise any right or power accruing upon any default occurring and continuing
as aforesaid shall impair any such right or power, or shall be construed to be a
waiver of any such default or an acquiescence therein; and, subject to the
provisions of Section 5.4, every power and remedy given by this Article Five or
by law to the Trustee or to the Securityholders may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
SECTION 5.7 Direction of Proceedings; Waiver of Defaults by Majority of
Securityholders. The Holders of a majority in aggregate principal amount of the
Securities of any series then Outstanding shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee with
respect to Securities of such series; provided, however, that (subject to the
provisions of Section 6.1) the Trustee shall have the right to decline to follow
any such direction if the Trustee shall determine upon advice of counsel that
the action or proceeding so directed may not lawfully be taken or if the Trustee
in good faith by its board of directors, its executive committee, or a trust
committee of directors or Responsible Officers or both shall determine that the
action or proceeding so directed would involve the Trustee in personal
liability. The Holders of a majority in aggregate principal amount of the
Securities of any series then Outstanding may on behalf of the Holders of all of
the Securities of such series waive any past default or Event of Default
hereunder and its consequences except a default in the payment of interest, if
any, on, or the principal of, the Securities of such series. Upon any such
waiver the Issuer, the Trustee and the Holders of the Securities of such series
shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other default or Event of
Default or impair any right consequent thereon. Whenever any default or Event of
Default hereunder shall have been waived as permitted by this Section 5.7, said
default or Event of Default shall for all purposes of the Securities and this
Indenture be deemed to have been cured and to be not continuing.
SECTION 5.8 Notice of Defaults. The Trustee shall, within 90 days after the
occurrence of a default, with respect to Securities of any series then
Outstanding, mail to all Holders of Securities of such series, as the names and
the addresses of such Holders appear upon the Securities register, notice of all
defaults known to the Trustee with respect to such series, unless such defaults
shall have been cured before the giving of such notice (the term "defaults" for
the purpose of this Section 5.8 being hereby defined to be the events specified
in clauses (a), (b), (c), (d), (e), (f), (g) and (h) of Section 5.1, not
including periods of grace, if any, provided for therein and irrespective of the
giving of the written notice specified in said clause (d) or (g) but in the case
of any default of the character specified in said clause (d) or (g) no such
notice to Securityholders shall be given until at least 60 days after the giving
of written notice thereof to the Issuer pursuant to said clause (d) or (g), as
the case may be); provided, however, that, except in the case of default in the
payment of the principal of or interest, if any, on any of the Securities, or in
the payment or satisfaction of any sinking fund or other purchase obligation,
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 or both of the Trustee in good faith determines that the
withholding of such notice is in the best interests of the Securityholders.
SECTION 5.9 Undertaking to Pay 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 cost of such suit, and
that such court may in its discretion assess reasonable costs, including
reasonable attorney's fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; but the provisions of this Section 5.9 shall not
apply to any suit instituted by the Trustee, to any suit instituted by any
Securityholder, or group of Securityholders, holding in the aggregate more than
10% in principal amount of the Securities of any series then Outstanding, or to
any suit instituted by any Securityholders for the enforcement of the payment of
the principal of or interest, if any, on any Security against the Issuer on or
after the due date expressed in such Security.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. With respect to the Holders of any series of Securities issued
hereunder, the Trustee, prior to the occurrence of an Event of Default with
respect to the Securities of a particular series and after the curing or waiving
of all Events of Default which may have occurred with respect to such series,
undertakes to perform such duties and only such duties as are specifically set
forth in this Indenture. In case an Event of Default with respect to the
Securities of a series has occurred (which has not been cured or waived) the
Trustee shall exercise with respect to such series of Securities 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 man would exercise or use under
the circumstances in the conduct of his own affairs.
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 wilful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the
Securities of any series and after the curing or waiving of all such Events of
Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the
Securities of any series shall be determined solely by the express
provisions of this Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as are specifically set
forth in this Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements,
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such statements,
certificates or opinions which 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;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Responsible Officers of the Trustee, unless it
shall be proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders pursuant to Section 5.7 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.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
SECTION 6.2 Certain Rights of the Trustee. Subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, Officers' Certificate or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, security or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned herein
shall be sufficiently evidenced by an Officers' Certificate or Issuer Order
(unless other evidence in respect thereof be herein specifically prescribed);
and any resolution of the Board of Directors may be evidenced to the Trustee by
a copy thereof certified by the secretary or an assistant secretary of the
Issuer;
(c) the Trustee may consult with counsel of its selection and any advice of
such counsel promptly confirmed in writing shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
to be taken by it hereunder in good faith and in reliance thereon in accordance
with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts
or powers vested in it by this Indenture at the request, order or direction of
any of the Securityholders pursuant to the provisions of this Indenture
(including, without limitation, pursuant to Section 5.1), unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be incurred
therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it
in good faith and believed by it to be authorized or within the discretion,
rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after the
curing or waiving of all Events of Default, 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, consent,
order, approval, appraisal, bond, debenture, note, coupon, security, or other
paper or document unless requested in writing so to do by the Holders of not
less than a majority in aggregate principal amount of the Securities of all
series affected then Outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such investigation shall be paid by the Issuer or,
if paid by the Trustee or any predecessor Trustee, shall be repaid by the Issuer
upon demand; and
(g) 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 not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of Securities
or Application of Proceeds Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein and
in the Securities, except the Trustee's certificates of authentication, shall be
taken as the statements of the Issuer, and the Trustee assumes no responsibility
for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture, of the Securities or of any
prospectus used to sell the Securities. The Trustee shall not be accountable for
the use or application by the Issuer of any of the Securities or of the proceeds
thereof.
SECTION 6.4 Trustee and Agents May Hold Securities; Collections, etc. The
Trustee or any agent of the Issuer or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not the Trustee or such agent and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Issuer and receive, collect,
hold and retain collections from the Issuer with the same rights it would have
if it were not the Trustee or such agent.
SECTION 6.5 Moneys Held by Trustee. Subject to the provisions of Section
10.4 hereof, all moneys received by the Trustee shall, until used or applied as
herein provided, be held in trust for the purposes for which they were received,
but need not be segregated from other funds except to the extent required by
mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or
the Trustee shall be under any liability for interest on any moneys received by
it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, such compensation as shall be agreed to in
writing between the Issuer and the Trustee (which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
and the Issuer covenants and agrees to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by or on behalf of it in accordance with any of
the provisions of this Indenture (including the reasonable compensation and the
expenses and disbursements of its counsel and of all agents and other persons
not regularly in its employ) except any such expense, disbursement or advance as
may arise from its negligence or bad faith. The Issuer also covenants to
indemnify the Trustee and each predecessor Trustee for, and to hold it harmless
against, any and all loss, liability, damage, claim or expense, including taxes
(other than taxes based on the income of the Trustee), incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and its
duties hereunder, including the costs and expenses of defending itself against
or investigating any claim or liability in the premises. The obligations of the
Issuer under this Section 6.6 to compensate and indemnify the Trustee and each
predecessor Trustee and to pay or reimburse the Trustee and each predecessor
Trustee for expenses, disbursements and advances shall constitute additional
indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture or the resignation or removal of the Trustee and shall not be
subordinate to the payment of Senior Indebtedness pursuant to Article Thirteen.
Such additional indebtedness shall be a senior claim to that of the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the Holders of particular Securities, and
the Securities are hereby subordinated to such senior claim. When the Trustee
incurs expenses or renders services in connection with an Event of Default
specified in Section 5.1 or in connection with Article Five hereof, the expenses
(including the reasonable fees and expenses of its counsel) and the compensation
for the service in connection therewith are intended to constitute expenses of
administration under any bankruptcy law.
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc. Subject
to Sections 6.1 and 6.2, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.8 Qualification of Trustee; Conflicting Interests. (a) If the
Trustee has or shall acquire any conflicting interest (as defined in subsection
(c)), then within 90 days after ascertaining that it has such conflicting
interest, and if the default (as defined in subsection (c)) to which such
conflicting interest relates has not been cured or duly waived or otherwise
eliminated before the end of such 90-day period, the Trustee shall either
eliminate such conflicting interest or, except as otherwise provided below,
resign, and the Issuer shall take prompt steps to have a successor appointed in
the manner provided in Section 6.10.
(b) If the Trustee shall fail to comply with the provisions of subsection
(a), the Trustee shall, within 10 days after the expiration of such 90-day
period, transmit notice of such failure to the Securityholders in the manner and
to the extent provided in Section 4.4 and, subject to the provisions of Section
5.9, unless the Trustee's duty to resign is stayed as provided below, any
Securityholder who has been a bona fide Holder of Securities for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee, and the
appointment of a successor, if the Trustee fails, after written request thereof
by such Securityholder, to comply with the provisions of subsection (a).
Except in the case of a default in the payment of the principal of or
interest on any Security, or in the payment of any sinking or purchase fund
installment, the Trustee shall not be required to resign as provided by this
Section 6.8 if the Trustee shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon, that
(i) the default under the Indenture may be cured or waived during a
reasonable period and under the procedures described in such application,
and
(ii) a stay of the Trustee's duty to resign will not be inconsistent
with the interests of Holders of the Securities.
The filing of such an application shall automatically stay the performance
of the duty to resign until the Commission orders otherwise. Any resignation of
the Trustee shall become effective only upon the appointment of a successor
trustee in accordance with the provisions of Section 6.10 and such successor's
acceptance of such an appointment.
(c) For the purposes of this Section 6.8, the Trustee shall be deemed to
have a conflicting interest with respect to Securities of any series if the
Securities of such series are in default (as determined in accordance with the
provisions of Section 5.1, but exclusive of any period of grace or requirement
of notice) and
(i) the Trustee is trustee under this Indenture with respect to the
Outstanding securities of any other series or is a trustee under another
indenture under which any other securities, or certificates of interest or
participation in any other securities, of the Issuer are outstanding,
unless such other indenture is a collateral trust indenture under which the
only collateral consists of Securities issued under this Indenture;
provided that there shall be excluded from the operation of this paragraph
(i), this Indenture with respect to the Securities of any other series and
there shall also be so excluded any other indenture or indentures under
which other securities, or certificates of interest or participation in
other securities, of the Issuer are outstanding if (x) this Indenture is
and, if applicable, this Indenture and any series issued pursuant to this
Indenture and such other indenture or indentures are wholly unsecured and
rank equally and such other indenture or indentures are hereafter qualified
under the Trust Indenture Act of 1939, unless the Commission shall have
found and declared by order pursuant to Section 305(b) or Section 307(c) of
the Trust Indenture Act of 1939 that differences exist between the
provisions of this Indenture with respect to Securities of such series and
one or more other series, or the provisions of this Indenture and the
provisions of such other indenture or indentures which are so likely to
involve a material conflict of interest as to make it necessary in the
public interest or for the protection of investors to disqualify the
Trustee from acting as such under this Indenture with respect to Securities
of such series and such other series, or under this Indenture or such other
indenture or indentures, or (y) the Issuer shall have sustained the burden
of proving, on application to the Commission and after opportunity for
hearing thereon, that trusteeship under this Indenture with respect to
Securities of such series and such other series, or under this Indenture
and such other indenture or indentures is not so likely to involve a
material conflict of interest as to make it necessary in the public
interest or for the protection of investors to disqualify the Trustee from
acting as such under this Indenture with respect to Securities of such
series and such other series, or under this Indenture and such other
indentures;
(ii) the Trustee or any of its directors or executive officers is an
underwriter for the Issuer;
(iii) the Trustee directly or indirectly controls or is directly or
indirectly controlled by or is under direct or indirect common control with
an underwriter for the Issuer;
(iv) the Trustee or any of its directors or executive officers is a
director, officer, partner, employee, appointee, or representative of the
Issuer, or of an underwriter (other than the Trustee itself) for the Issuer
who is currently engaged in the business of underwriting, except that (x)
one individual may be a director or an executive officer, or both, of the
Trustee and a director or an executive officer, or both, of the Issuer, but
may not be at the same time an executive officer of both the Trustee and
the Issuer; (y) if and so long as the number of directors of the Trustee in
office is more than nine, one additional individual may be a director or an
executive officer, or both, of the Trustee and a director of the Issuer;
and (z) the Trustee may be designated by the Issuer or by any underwriter
for the Issuer to act in the capacity of transfer agent, registrar,
custodian, paying agent, fiscal agent, escrow agent, or depositary, or in
any other similar capacity, or, subject to the provisions of subsection (c)
(i) of this Section, to act as trustee, whether under an indenture or
otherwise;
(v) 10% or more of the voting securities of the Trustee is
beneficially owned either by the Issuer or by any director, partner or
executive officer thereof, or 20% or more of such voting securities is
beneficially owned, collectively, by any two or more of such persons; or
10% or more of the voting securities of the Trustee is beneficially owned
either by an underwriter for the Issuer or by any director, partner, or
executive officer thereof, or is beneficially owned, collectively, by any
two or more such persons;
(vi) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default, (x) 5% or more of the
voting securities or 10% or more of any other class of security of the
Issuer, not including the Securities issued under this Indenture and
securities issued under any other indenture under which the Trustee is also
trustee, or (y) 10% or more of any class of security of an underwriter for
the Issuer;
(vii) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default, 5% or more of the voting
securities of any person who, to the knowledge of the Trustee, owns 10% or
more of the voting securities of, or controls directly or indirectly or is
under direct or indirect common control with, the Issuer;
(viii) the Trustee is the beneficial owner of, or holds as collateral
security for an obligation which is in default, 10% or more of any class
security of any person who, to the knowledge of the Trustee, owns 50% or
more of the voting securities of the Issuer;
(ix) the Trustee owns on the date of default (as determined in
accordance with the provisions of Section 5.1, but exclusive of any period
of grace or requirement of notice) or on any anniversary of such default
while such default remains outstanding, in the capacity of executor,
administrator, testamentary or inter vivos trustee, guardian, committee or
conservator, or in any other similar capacity, an aggregate of 25% or more
of the voting securities, or of any class of security, of any Person, the
beneficial ownership of a specified percentage of which would have
constituted a conflicting interest under paragraphs (vi), (vii) or (viii)
of this subsection. As to any such securities of which the Trustee acquired
ownership through becoming executor, administrator, or testamentary trustee
of an estate which included them, the provisions of the preceding sentence
shall not apply, for a period of two years from the date of such
acquisition, to the extent that such securities included in such estate do
not exceed 25% of such voting securities or 25% of any such class of
security. Promptly after the dates of any such default and annually in each
succeeding year that the Securities remain in default, the Trustee shall
make a check of its holdings of such securities in any of the
above-mentioned capacities as of such dates. If the Issuer fails to make
payment in full of principal of or interest on any of the Securities when
and as the same becomes due and payable, and such failure continues for 30
days thereafter, the Trustee shall make a prompt check of its holdings of
such Securities in any of the above-mentioned capacities as of the date of
the expiration of such 30-day period, and after such date, notwithstanding
the foregoing provisions of this paragraph, all such Securities so held by
the Trustee, with sole or joint control over such Securities vested in it,
shall, but only so long as such failure shall continue, be considered as
though beneficially owned by the Trustee for the purposes of paragraphs
(vi), (vii) and (viii) of this subsection; or
(x) except under the circumstances described in paragraphs (1), (3),
(4), (5) or (6) of Section 6.13(b), the Trustee shall be or shall become a
creditor of the Issuer.
For purposes of subsection (c) (i), the term "series of securities" or
"series" means a series, class or group of securities issuable under an
indenture pursuant to the terms of which holders of one such series may vote to
direct the Trustee, or otherwise take action pursuant to a vote of such holders,
separately from holders of another such series; provided that "series of
securities" or "series" shall not include any series of securities issuable
under an indenture if all such series rank equally and are wholly unsecured.
The specification of percentages in subsections (c) (v) to (ix) inclusive
of this Section 6.8 shall not be construed as indicating that the ownership of
such percentages of the securities of a person is or is not necessary or
sufficient to constitute direct or indirect control for the purposes of
subsections (c) (iii) or (vii) of this Section.
For the purposes of subsections (c) (vi), (vii), (viii) and (ix), of this
Section 6.8, only,
(A) the terms "security" and "securities" shall include only such
securities as are generally known as corporate securities, but shall not
include any note or other evidence of indebtedness issued to evidence an
obligation to repay moneys lent to a person by one or more banks, trust
companies, or banking firms, or any certificate of interest or
participation in any such note or evidence of indebtedness;
(B) an obligation shall be deemed to be in default when a default in
payment of principal shall have continued for 30 days or more and shall not
have been cured; and
(C) the Trustee shall not be deemed to be the owner or holder of (x)
any security which it holds as collateral security, as trustee or
otherwise, for an obligation which is not in default as defined in clause
(B) above, or (y) any security which it holds as collateral security under
this Indenture, irrespective of any default hereunder, or (z) any security
which it holds as agent for collection, or as custodian, escrow agent, or
depositary, or in any similar representative capacity.
Except as provided above, the word "security" or "securities" as used in
this Section 6.8 shall mean any note, stock, treasury stock, bond, debenture,
evidence of indebtedness, certificate of interest or participation in any
profit-sharing agreement, collateral trust certificate, preorganization
certificate or subscription, transferable share, investment contract, voting
trust certificate, certificate of deposit for a security, fractional undivided
interest in oil, gas or other mineral rights, or, in general, any interest or
instrument commonly known as a "security", or any certificate of interest or
participation in, temporary or interim certificate for, receipt for, guarantee
of, or warrant or right to subscribe to or purchase, any of the foregoing.
(d) For purposes of this Section 6.8:
(i) the term "underwriter" when used with reference to the Issuer
shall mean every person who, within a one year period prior to the time as
of which the determination is made, was an underwriter of any security of
the Issuer outstanding at the time of the determination;
(ii) the term "director" shall mean any director of a corporation or
any individual performing similar functions with respect to any
organization whether incorporated or unincorporated;
(iii) the term "person" shall mean an individual, a corporation, a
partnership, an association, a joint-stock company, a trust, an
unincorporated organization, or a government or political subdivision
thereof; as used in this paragraph, the term "trust" shall include only a
trust where the interest or interests of the beneficiary or beneficiaries
are evidenced by a security;
(iv) the term "voting security" shall mean any security presently
entitling the owner or holder thereof to vote in the direction or
management of the affairs of a person, or any security issued under or
pursuant to any trust, agreement or arrangement whereby a trustee or
trustees or agent or agents for the owner or holder of such security are
presently entitled to vote in the direction or management of the affairs of
a person;
(v) the term "Issuer" shall mean any obligor upon the Securities; and
(vi) the term "executive officer" shall mean the president, every vice
president, every trust officer, the cashier, the secretary, and the
treasurer of a corporation, and any individual customarily performing
similar functions with respect to any organization whether incorporated or
unincorporated, but shall not include the chairman of the board of
directors.
(e) The percentages of voting securities and other securities specified in
this Section 6.8 shall be calculated in accordance with the following
provisions:
(i) a specified percentage of the voting securities of the Trustee,
the Issuer or any other person referred to in this Section (each of whom is
referred to as a "person" in this paragraph) means such amount of the
outstanding voting securities of such person as entitles the holder or
holders thereof to cast such specified percentage of the aggregate votes
which the holders of all the outstanding voting securities of such person
are entitled to cast in the direction or management of the affairs of such
person;
(ii) a specified percentage of a class of securities of a person means
such percentage of the aggregate amount of securities of the class
outstanding;
(iii) the term "amount", when used in regard to securities, means the
principal amount if relating to evidences of indebtedness, the number of
shares if relating to capital shares, and the number of units if relating
to any other kind of security;
(iv) the term "outstanding" means issued and not held by or for the
account of the issuer; the following securities shall not be deemed
outstanding within the meaning of this definition:
(A) securities of an issuer held in a sinking fund relating to
securities of the issuer of the same class;
(B) securities of an issuer held in a sinking fund relating to another
class of securities of the issuer, if the obligation evidenced by such
other class of securities is not in default as to principal or interest or
otherwise;
(C) securities pledged by the issuer thereof as security for an
obligation of the issuer not in default as to principal or interest or
otherwise; and
(D) securities held in escrow if placed in escrow by the issuer
thereof; provided,that any voting securities of an issuer shall be deemed
outstanding if any person other than the issuer is entitled to exercise the
voting rights thereof; and
(v) a security shall be deemed to be of the same class as another
security if both securities confer upon the holder or holders thereof
substantially the same rights and privileges; provided, that, in the case
of secured evidences of indebtedness, all of which are issued under a
single indenture, differences in the interest rates or maturity dates of
various series thereof shall not be deemed sufficient to constitute such
series different classes and provided, further, that, in the case of
unsecured evidences of indebtedness, differences in the interest rates or
maturity dates thereof shall not be deemed sufficient to constitute them
securities of different classes, whether or not they are issued under a
single indenture.
SECTION 6.9 Persons Eligible for Appointment as Trustee. The Trustee for
each series of Securities hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
of any state or the District of Columbia having a combined capital and surplus
of at least $50,000,000, and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by federal,
state or District of Columbia authority, or a corporation or other Person
permitted to act as trustee by the Commission. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. No obligor upon the Securities or any
Affiliate of such obligor shall serve as trustee upon the Securities. In case at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section 6.9, the Trustee shall resign immediately in the
manner and with the effect specified in Section 6.10.
SECTION 6.10 Resignation and Removal; Appointment of Successor Trustee. (a)
The Trustee, or any trustee or trustees hereafter appointed, may at any time
resign with respect to one or more or all series of Securities by giving written
notice of resignation to the Issuer. Upon receiving such notice of resignation,
the Issuer shall promptly appoint a successor trustee or trustees with respect
to the applicable series by written instrument in duplicate, executed by
authority of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee or
trustees. If no successor trustee shall have been so appointed with respect to
any series and have accepted appointment within 30 days after the mailing of
such notice of resignation, the resigning trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of
Section 5.9, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section
6.8 with respect to any series of Securities after written request therefor
by the Issuer or by any Securityholder who has been a bona fide Holder of a
Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 6.9 and shall fail to resign after written request
therefor by the Issuer or by any such Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to any
series of Securities, or shall be adjudged a bankrupt or insolvent, or a
receiver or liquidator 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, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
one copy of which instrument shall be delivered to the Trustee so removed and
one copy to the successor trustee, or, subject to the provisions of Section 5.9,
any Securityholder who has been a bona fide Holder of a Security or Securities
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 removal
of the Trustee and the appointment of a successor trustee with respect to such
series. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series then Outstanding may at any time remove the Trustee
with respect to Securities of such series and appoint a successor trustee with
respect to the Securities of such series by delivering to the Trustee so
removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 7.1 of the action in that regard taken by the
Securityholders. If no successor trustee shall have been so appointed with
respect to any series and have accepted appointment within 30 days after the
delivery of such evidence of removal, the Trustee may petition any court of
competent jurisdiction for the appointment of a successor trustee, or any
Securityholder who has been a bona fide Holder of a Security or Securities of
the applicable series for at least six months may, subject to the provisions of
Section 5.9, on behalf of himself and all others similarly situated, petition
any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor trustee.
(d) Any resignation or removal of the Trustee with respect to any series
and any appointment of a successor trustee with respect to such series pursuant
to any of the provisions of this Section 6.10 shall become effective upon
acceptance of appointment by the successor trustee as provided in Section 6.11.
SECTION 6.11 Acceptance of Appointment by Successor Trustee. Any successor
trustee appointed as provided in Section 6.10 shall execute and deliver to the
Issuer and to its predecessor trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor trustee
with respect to all or any applicable series shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become
vested with all rights, powers, duties and obligations with respect to such
series of its predecessor hereunder, with like effect as if originally named as
trustee for such series hereunder; but, nevertheless, on the written request of
the Issuer or of the successor trustee, upon payment of its charges then unpaid,
the trustee ceasing to act shall, subject to Section 10.4, pay over to the
successor trustee all moneys at the time held by it hereunder and shall execute
and deliver an instrument transferring to such successor trustee all such
rights, powers, duties and obligations. Upon request of any such successor
trustee, the Issuer shall execute any and all instruments in writing for more
fully and certainly vesting in and confirming to such successor trustee all such
rights and powers. Any trustee ceasing to act shall, nevertheless, retain a
prior claim upon all property or funds held or collected by such trustee to
secure any amounts then due it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of one
or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and 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 under separate
indentures.
No successor trustee with respect to any series of Securities shall accept
appointment as provided in this Section 6.11 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 6.8 and eligible under the provisions of Section 6.9.
Upon acceptance of appointment by any successor trustee as provided in this
Section 6.11, the Issuer shall give notice thereof to the Holders of Securities
of each series affected, by mailing such notice to such Holders at their
addresses as they shall appear on the registry books. If the Issuer fails to
give such notice within ten days after acceptance of appointment by the
successor trustee, the successor trustee shall cause such notice to be given at
the expense of the Issuer.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business of
Trustee. 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 the corporate trust business of the Trustee, shall be
the successor of the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 6.8 and eligible under the provisions
of Section 6.9, without the execution or filing of any paper or any further act
on the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series shall have
been authenticated but not delivered, any such successor to the Trustee may
adopt the certificate of authentication of any predecessor Trustee and deliver
such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.13 Preferential Collection of Claims Against the Issuer. (a)
Subject to the provisions of this Section, if the Trustee shall be or shall
become a creditor, directly or indirectly, secured or unsecured, of the Issuer
within three months prior to a default, as defined in subsection (c) of this
Section 6.13, or subsequent to such a default, then, unless and until such
default shall be cured, the Trustee shall set apart and hold in a special
account for the benefit of the Trustee individually, the Holders of the
Securities and the holders of other indenture securities (as defined in this
Section 6.13):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such three month period and valid as
against the Issuer and its other creditors, except any such reduction
resulting from the receipt or disposition of any property described in
subsection (a) (2) of this section, or from the exercise of any right of
set-off which the Trustee could have exercised if a petition in bankruptcy
had been filed by or against the Issuer upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such three month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Issuer and its
other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee:
(A) to retain for its own account (i) payments made on account of any
such claim by any Person (other than the Issuer) who is liable thereon,
(ii) the proceeds of the bona fide sale of any such claim by the Trustee to
a third Person, and (iii) distributions made in cash, securities or other
property in respect of claims filed against the Issuer in bankruptcy or
receivership or in proceedings for reorganization pursuant to the
Bankruptcy Code or applicable state law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such three month period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such three
month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default as defined in
subsection (c) of this Section would occur within three months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in such paragraph (B) or (C), as the case may be, to the extent of
the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such three month period for property held as security at the
time of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any preexisting
claim of the Trustee as such creditor, such claim shall have the same status as
such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between the
Trustee, the Securityholders and the holders of other indenture securities in
such manner that the Trustee, such Securityholders and the holders of other
indenture securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Issuer in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Bankruptcy
Code or applicable state law, the same percentage of their respective claims,
figured before crediting to the claim of the Trustee anything on account of the
receipt by it from the Issuer of the funds and property in such special account,
and before crediting to the respective claims of the Trustee, such
Securityholders and the holders of other indenture securities, dividends on
claims filed against the Issuer in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Bankruptcy Code or applicable state law, but
after crediting thereon receipts on account of the indebtedness represented by
their respective claims from all sources other than from such dividends and from
the funds and property so held in such special account. As used in this
paragraph, with respect to any claim, the term "dividends" shall include any
distribution with respect to such claim, in bankruptcy or receivership or in
proceedings for reorganization pursuant to the Bankruptcy Code or applicable
state law, whether such distribution is made in cash, securities or other
property, but shall not include any such distribution with respect to the
secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceeding for reorganization is pending shall have jurisdiction
(i) to apportion between the Trustee, such Securityholders and the holders of
other indenture securities, in accordance with the provisions of this paragraph,
the funds and property held in such special account and the proceeds thereof, or
(ii) in lieu of such apportionment, in whole or in part, to give to the
provisions of this paragraph due consideration in determining the fairness of
the distributions to be made to the Trustee, such Securityholders and the
holders of other indenture securities with respect to their respective claims,
in which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as security
for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to apply
the provisions of this paragraph as a mathematical formula.
Any Trustee who has resigned or been removed after the beginning of such
three month period shall be subject to the provisions of this subsection (a) as
though such resignation or removal had not occurred. If any Trustee has resigned
or been removed prior to the beginning of such three month period, it shall be
subject to the provisions of this subsection (a) if and only if the following
conditions exist:
(i) the receipt of property or reduction of claim which would have
given rise to the obligation to account, if such Trustee had continued as
trustee, occurred after the beginning of such three month period; and
(ii) such receipt of property or reduction of claim occurred within
three months after such resignation or removal.
(b) There shall be excluded from the operation of this Section 6.13 a
creditor relationship arising from:
(1) the ownership or acquisition of securities issued under any
indenture or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction or by this Indenture for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advance and of the circumstances surrounding the
making thereof is given to the Securityholders at the time and in the
manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in subsection (c)(2) of
this Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Issuer; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self-liquidating paper as defined in subsection (c) (3)
of this Section.
(c) As used in this Section 6.13:
(1) the term "default" shall mean any failure to make payment in full
of the principal of or interest on any of the Securities when and as such
principal or interest becomes due and payable;
(2) the term "cash transaction" shall mean any transaction in which
full payment for goods or securities sold is made within seven days after
delivery of the goods or securities in currency or in checks or other
orders drawn upon banks or bankers and payable upon demand;
(3) the term "self-liquidating paper" shall mean any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Issuer for the purpose of financing the purchase,
processing, manufacture, shipment, storage or sale of goods, wares or
merchandise and which is secured by documents evidencing title to,
possession of, or a lien upon the goods, wares or merchandise or the
receivables or proceeds arising from the sale of the goods, wares or
merchandise previously constituting the security, provided the security is
received by the Trustee simultaneously with the creation of the creditor
relationship with the Issuer arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation; and
(4) the term "Issuer" shall mean any obligor upon the Securities.
SECTION 6.14 Appointment of Authenticating Agent. As long as any Securities
of a series remain Outstanding, the Trustee may, by an instrument in writing,
appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities, including Securities issued upon exchange,
registration of transfer, partial redemption or pursuant to Section 2.9.
Securities of each such series authenticated by such Authenticating Agent shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made
in this Indenture to the authentication and delivery of Securities of any series
by the Trustee or to 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 for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any state or the
District of Columbia, authorized under such laws to exercise corporate trust
powers, having a combined capital and surplus of at least $50,000,000
(determined as provided in Section 6.9 with respect to the Trustee) and subject
to supervision or examination by federal or state authority.
Any corporation into which any 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 any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent. Any Authenticating Agent may at any
time, and if it shall cease to be eligible shall, resign by giving written
notice of resignation to the Trustee and to the Issuer. 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 Issuer.
Upon receiving such a notice of resignation or upon such a termination, or
in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.14 with respect to one or more
series of Securities, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Issuer and the Issuer shall provide notice of
such appointment to all Holders of Securities of such series in the manner and
to the extent provided in Section 11.4. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all rights,
powers, duties and responsibilities of its predecessor hereunder, with like
effect as if originally named as Authenticating Agent. The Issuer agrees to pay
to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4 and 7.3 shall be applicable to any Authenticating
Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by a specified percentage in
principal amount of the Securityholders of any or all series may be embodied in
and evidenced by one or more instruments of substantially similar tenor signed
by such specified percentage of Securityholders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee. Proof of execution of any instrument or of a writing appointing
any such agent shall be sufficient for any purpose of this Indenture and
(subject to Sections 6.1 and 6.2) conclusive in favor of the Trustee and the
Issuer, if made in the manner provided in this Article Seven.
SECTION 7.2 Proof of Execution of Instruments and of Holding of Securities.
Subject to Sections 6.1 and 6.2, the execution of any instrument by a
Securityholder or his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder of any instrument may
be proved by the certificate of any notary public or other officer of any
jurisdiction authorized to take acknowledgments of deeds or administer oaths
that the person executing such instruments acknowledged to him the execution
thereof, or by an affidavit of a witness to such execution sworn to before any
such notary or other such officer. Where such execution is by or on behalf of
any legal entity other than an individual, such certificate or affidavit shall
also constitute sufficient proof of the authority of the person executing the
same.
(b) The ownership of Securities shall be proved by the Security register or
by a certificate of the Security registrar.
SECTION 7.3 Holders to be Treated as Owners. The Issuer, the Trustee and
any agent of the Issuer or the Trustee may deem and treat the Person in whose
name any Security shall be registered upon the Security register for such series
as the absolute owner of such Security (whether or not such Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and,
subject to the provisions of this Indenture, interest, if any, on such Security
and for all other purposes; and neither the Issuer nor the Trustee nor any agent
of the Issuer or the Trustee shall be affected by any notice to the contrary.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities of any or all series have concurred in any direction,
consent or waiver under this Indenture, Securities which are owned by the Issuer
or any other obligor on the Securities with respect to which such determination
is being made or by any Affiliate of the Issuer or any other obligor on the
Securities with respect to which such determination is being made shall be
disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, consent or waiver only
securities which the Trustee knows are 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 Issuer or any other obligor upon the Securities or any Affiliate of
the Issuer or any other obligor on the Securities. In case of a dispute as to
such right, the advice of counsel shall be full protection in respect of any
decision made by the Trustee in accordance with such advice. Upon request of the
Trustee, the Issuer shall furnish to the Trustee promptly an Officers'
Certificate listing and identifying all Securities, if any, known by the Issuer
to be owned or held by or for the account of any of the above-described Persons;
and, subject to Sections 6.1 and 6.2, the Trustee shall be entitled to accept
such Officers' Certificate as conclusive evidence of the facts therein set forth
and of the fact that all Securities not listed therein are Outstanding for the
purpose of any such determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to (but
not after) the evidencing to the Trustee, as provided in Section 7.1, of the
taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article Seven, revoke such action so far as concerns
such Security provided that such revocation shall not become effective until
three business days after such filing. Except as aforesaid any such action taken
by the Holder of any Security shall be conclusive and binding upon such Holder
and upon all future Holders and owners of such Security and of any Securities
issued in exchange or substitution therefor or on registration of transfer
thereof, irrespective of whether or not any notation in regard thereto is made
upon any such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all the
Securities affected by such action.
SECTION 7.6 Record Date for Consents and Waivers. The Issuer may, but shall
not be obligated to, direct the Trustee to establish a record date for the
purpose of determining the Persons entitled to (i) waive any past default with
respect to the Securities of such series in accordance with Section 5.7 of the
Indenture, (ii) consent to any supplemental indenture in accordance with Section
8.2 of the Indenture or (iii) waive compliance with any term, condition or
provision of any covenant hereunder. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and any such Persons, shall
be entitled to waive any such past default, consent to any such supplemental
indenture or waive compliance with any such term, condition or provision,
whether or not such Holder remains a Holder after such record date; provided,
however, that unless such waiver or consent is obtained from the Holders, or
duly designated proxies, of the requisite principal amount of Outstanding
Securities of such series prior to the date which is the 180th day after such
record date, any such waiver or consent previously given shall automatically and
without further action by any Holder be cancelled and of no further effect.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders. The
Issuer, when authorized by a resolution of its Board of Directors (which
resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance
with or pursuant to an Issuer Order), and the Trustee may from time to time and
at any time enter into an indenture or indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act of 1939 as in force
at the date of the execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer, or
successive successions, and the assumption by the successor corporation of the
covenants, agreements and obligations of the Issuer pursuant to Article Nine;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions as the Issuer and the Trustee shall
consider to be for the protection of the Holders of all or any series of
Securities, (and if such covenants, restrictions, conditions or provisions are
to be for the protection of less than all series of Securities, stating that the
same are expressly being included solely for the protection of such series) and
to make the occurrence, or the occurrence and continuance, of a default in any
such additional covenants, restrictions, conditions or provisions an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, however, that in
respect of any such additional covenant, restriction, condition or provision
such supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such an Event
of Default or may limit the remedies available to the Trustee upon such an Event
of Default or may limit the right of the Holders of a majority in aggregate
principal amount of the Securities of such series to waive such an Event of
Default;
(d) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make any other provisions as the Issuer may deem necessary or
desirable, provided, however, that no such action shall adversely affect the
interests of the Holders of the Securities;
(e) to establish the form or terms of Securities of any series as permitted
by Sections 2.1 and 2.3; and
(f) 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.
The Trustee is hereby authorized to join with the Issuer in the execution
of any such supplemental indenture, to make any further appropriate agreements
and stipulations which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section may
be executed without the consent of the Holders of any of the Securities then
Outstanding, notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures with Consent of Securityholders. With
the consent (evidenced as provided in Article Seven) of the Holders of not less
than a majority in aggregate principal amount of the Securities then Outstanding
of any series affected by such supplemental indenture, the Issuer, when
authorized by a resolution of its Board of Directors (which resolution may
provide general terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance with or pursuant
to an Issuer Order), and the Trustee may, from time to time and at any time,
enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act of 1939 as in force at the date of
execution thereof) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental indenture or of modifying in any manner the rights of the Holders
of the Securities of such series; provided, that no such supplemental indenture
shall (a) extend the stated final maturity of the principal of any Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest, if any, thereon (or, in the case of an Original Issue
Discount Security, reduce the rate of accrual of original issue discount
thereon), or reduce or alter the method of computation of any amount payable on
redemption, repayment or purchase by the Issuer thereof (or the time at which
any such redemption, repayment or purchase may be made), or make the principal
thereof (including any amount in respect of original issue discount), or
interest, if any, thereon payable in any coin or currency other than that
provided in the Securities or in accordance with the terms of the Securities, or
reduce the amount of the principal of an Original Issue Discount Security that
would be due and payable upon an acceleration of the maturity thereof pursuant
to Section 5.1 or the amount thereof provable in bankruptcy pursuant to Section
5.2, or impair or affect the right of any Securityholder to institute suit for
the payment thereof or, if the Securities provide therefor, any right of
repayment or purchase at the option of the Securityholder, in each case without
the consent of the Holder of each Security so affected, or (b) reduce the
aforesaid percentage of Securities of any series, the consent of the Holders of
which is required for any such supplemental indenture, without the consent of
the Holders of each Security so affected. No consent of any Holder of any
Security shall be necessary under this Section 8.2 to permit the Trustee and the
Issuer to execute supplemental indentures pursuant to Sections 8.1 and 9.2.
A supplemental indenture which changes or eliminates any covenant, Event of
Default or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of Holders of Securities of such series, with respect to
such covenant or provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
Upon the request of the Issuer, accompanied by a copy of a resolution of
the Board of Directors (which resolution may provide general terms or parameters
for such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to an Issuer Order) certified by the
secretary or an assistant secretary of the Issuer authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of the Holders of the Securities as aforesaid and other
documents, if any, required by Section 7.1, the Trustee shall join with the
Issuer in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise, in which case the Trustee may in its discretion, but
shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
Section 8.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section 8.2, the
Trustee shall give notice thereof to the Holders of then Outstanding Securities
of each series affected thereby, as provided in Section 11.4. Any failure of the
Issuer to give such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall
be and shall be deemed to be modified and amended in accordance therewith and
the respective rights, limitations of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Issuer and the Holders of Securities of
each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and
shall be deemed to be part of the terms and conditions of this Indenture for any
and all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, shall be entitled to receive an Officers'
Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant to this Article Eight complies with the
applicable provisions of this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article Eight may bear
a notation in form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action taken by
Securityholders. If the Issuer or the Trustee shall so determine, new Securities
of any series so modified as to conform, in the opinion of the Trustee and the
Issuer, to any modification of this Indenture contained in any such supplemental
indenture may be prepared by the Issuer, authenticated by the Trustee and
delivered in exchange for the Securities of such series then Outstanding.
SECTION 8.6 Subordination Unimpaired. This Indenture may not be amended to
alter the subordination of any Outstanding Securities without the written
consent of each holder of Senior Indebtedness then outstanding that would be
adversely affected thereby.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE, LEASE, EXCHANGE OR OTHER DISPOSITION
SECTION 9.1 Issuer May Consolidate, etc., on Certain Terms. Subject to the
provisions of Section 9.3, nothing contained in this Indenture or in any of the
Securities shall prevent any consolidation or merger of the Issuer with or into
any other corporation or corporations (whether or not affiliated with the
Issuer), or successive consolidations or mergers in which the Issuer or its
successor or successors shall be a party or parties, or shall prevent any sale,
lease, exchange or other disposition of all or substantially all the property
and assets of the Issuer to any other corporation (whether or not affiliated
with the Issuer) authorized to acquire and operate the same; provided, however,
and the Issuer hereby covenants and agrees, that any such consolidation, merger,
sale, lease, exchange or other disposition shall be upon the conditions that (a)
immediately after such consolidation, merger, sale, lease, exchange or other
disposition of the corporation (whether the Issuer or such other corporation)
formed by or surviving any such consolidation or merger, or to which such sale,
lease, exchange or other disposition shall have been made, shall not be in
default in the performance or observance of any of the terms, covenants and
conditions of this Indenture to be kept or performed by the Issuer; (b) the
corporation (if other than the Issuer) formed by or surviving any such
consolidation or merger, or to which such sale, lease, exchange or other
disposition shall have been made, shall be a corporation organized under the
laws of the United States of America, any state thereof or the District of
Columbia; and (c) the due and punctual payment of the principal of and interest,
if any, on all the Securities, according to their tenor, and the due and
punctual performance and observance of all of the covenants and conditions of
this Indenture to be performed by the Issuer, shall be expressly assumed, by
supplemental indenture satisfactory in form to the Trustee executed and
delivered to the Trustee, by the corporation (if other than the Issuer) formed
by such consolidation, or into which the Issuer shall have been merged, or by
the corporation which shall have acquired or leased such property.
SECTION 9.2 Securities to be Secured in Certain Events. If, upon any such
consolidation, merger, or upon any such sale, lease, exchange or other
disposition or upon any acquisition by the Issuer by purchase or otherwise of
all or any part of the properties of any other corporation, any Principal
Property owned by the Issuer or a Restricted Subsidiary immediately prior
thereto would thereupon become subject to any mortgage, security interest,
pledge, lien or encumbrance, not permitted by Section 3.6 hereof, the Issuer,
prior to such consolidation, merger, sale, lease, exchange or other disposition
or acquisition, will by indenture supplemental hereto secure the due and
punctual payment of the principal of and interest, if any, on the Securities
then outstanding (equally and ratably, or with such other relative priority
specified in Section 3.6, with any other indebtedness of or guaranteed by the
Issuer then entitled thereto, but only to the extent that such indebtedness is
Subordinated Indebtedness) by a direct lien on such Principal Property, together
with any other properties and assets of the Issuer or of any such Restricted
Subsidiary, whichever shall be the owner of any such Principal Property, which
would thereupon become subject to any such mortgage, security interest, pledge,
lien or encumbrance, prior to all liens other than any theretofore existing
thereon and other than liens on Senior Indebtedness.
SECTION 9.3 Successor Corporation to be Substituted. In case of any such
consolidation or merger or any sale, conveyance or lease of all or substantially
all of the property of the Issuer and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the due and punctual payment of the
principal of and interest, if any, on all of the Securities and the due and
punctual performance of all of the covenants and conditions of this Indenture to
be performed by the Issuer, such successor corporation shall succeed to and be
substituted for the Issuer, with the same effect as if it had been named herein
as the party of the first part, and the Issuer (including any intervening
successor to the Issuer which shall have become the obligor hereunder) shall be
relieved of any further obligation under this Indenture and the Securities;
provided, however, that in the case of a sale, lease, exchange or other
disposition of the property and assets of the Issuer (including any such
intervening successor), the Issuer (including any such intervening successor)
shall continue to be liable on its obligations under this Indenture and the
Securities to the extent, but only to the extent, of liability to pay the
principal of and interest, if any, on the Securities at the time, places and
rate prescribed in this Indenture and the Securities. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in the
name of the Issuer, any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Issuer and delivered to the
Trustee; and, upon the order of such successor corporation instead of the Issuer
and subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver any Securities
which previously shall have been signed and delivered by the officers of the
Issuer to the Trustee for authentication, and any Securities which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation or merger or any sale, lease, exchange or
other disposition of all or substantially all of the property and assets of the
Issuer, such changes in phraseology and form (but not in substance) may be made
in the Securities, thereafter to be issued, as may be appropriate.
SECTION 9.4 Opinion of Counsel to be Given Trustee. The Trustee, subject to
Sections 6.1 and 6.2, may receive an Officers' Certificate and Opinion of
Counsel as conclusive evidence that any such consolidation, merger, sale, lease,
exchange or other disposition and any such assumption complies with the
provisions of this Article Nine.
ARTICLE TEN
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 Satisfaction and Discharge of Indenture. (A) If at any time
(a) the Issuer shall have paid or caused to be paid the principal of and
interest, if any, on all the Securities Outstanding (other than Securities which
have been destroyed, lost or stolen and which have been replaced or paid as
provided in Section 2.9) as and when the same shall have become due and payable,
or (b) the Issuer shall have delivered to the Trustee for cancellation all
Securities theretofore authenticated (other than Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.9); and if, in any such case, the Issuer shall also pay or cause to be
paid all other sums payable hereunder by the Issuer, then this Indenture shall
cease to be of further effect, and the Trustee, on demand of the Issuer
accompanied by an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent relating to the satisfaction and discharge
contemplated by this provision have been complied with, and at the cost and
expense of the Issuer, shall execute proper instruments acknowledging such
satisfaction and discharging this Indenture. The Issuer agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred,
and to compensate the Trustee for any services thereafter reasonably and
properly rendered, by the Trustee in connection with this Indenture or the
Securities.
(B) If at any time (a) the Issuer shall have paid or caused to be paid the
principal of, premium, if any, and interest, if any, on all the Securities of
any series Outstanding (other than Securities of such series which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.9) as and when the same shall have become due and payable, or (b) the
Issuer shall have delivered to the Trustee for cancellation all Securities of
any series theretofore authenticated (other than any Securities of such series
which have been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.9), or (c) in the case of any series of Securities with
respect to which the exact amount described in clause (ii) below can be
determined at the time of making the deposit referred to in such clause (ii),
(i) all the Securities of such series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, or are by their terms to
become due and payable within one year or are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of notice
of redemption, and (ii) the Issuer shall have irrevocably deposited or caused to
be deposited with the Trustee as funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of Securities
of such series, cash in an amount (other than moneys repaid by the Trustee or
any paying agent to the Issuer in accordance with Section 10.4) or direct
obligations of the United States of America, backed by its full faith and credit
("U.S. Government Obligations"), maturing as to principal and interest, if any,
at such times and in such amounts as will insure the availability of cash, or a
combination thereof, sufficient in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay (A) the principal of, premium, if any, and
interest, if any, on all Securities of such series on each date that such
principal of, premium, if any, or interest, if any, is due and payable, and (B)
any mandatory sinking fund payments on the dates on which such payments are due
and payable in accordance with the terms of the Indenture and the Securities of
such series; then the Issuer shall be deemed to have paid and discharged the
entire indebtedness on all the Securities of such series on the date of the
deposit referred to in clause (ii) above and the provisions of this Indenture
with respect to the Securities of such series shall no longer be in effect
(except, in the case of clause (c) of this Section 10.1(B), as to (i) rights of
registration of transfer and exchange of Securities of such series, (ii) rights
of substitution of mutilated, defaced, destroyed, lost or stolen Securities of
such series, (iii) rights of Holders of Securities of such series to receive
payments of principal thereof and premium, if any, and interest, if any, thereon
upon the original stated due dates therefor (but not upon acceleration), and
remaining rights of the Holders of Securities of such series to receive
mandatory sinking fund payments thereon, if any, when due, (iv) the rights,
obligations, duties and immunities of the Trustee hereunder, (v) the rights of
the Holders of Securities of such series as beneficiaries hereof with respect to
the property so deposited with the Trustee payable to all or any of them and
(vi) the obligations of the Issuer under Section 3.2 with respect to Securities
of such series) and the Trustee, on demand of the Issuer accompanied by an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent contemplated by this provision have been complied with, and
at the cost and expense of the Issuer, shall execute proper instruments
acknowledging the same.
(C) The following provisions shall apply to the Securities of each series
unless specifically otherwise provided in a Board Resolution, Officers'
Certificate or indenture supplemental hereto provided pursuant to Section 2.3.
In addition to discharge of the Indenture pursuant to the next preceding
paragraph, in the case of any series of Securities with respect to which the
exact amount described in subparagraph (a) below can be determined at the time
of making the deposit referred to in such subparagraph (a), the Issuer shall be
deemed to have paid and discharged the entire indebtedness on all the Securities
of such a series on the 91st day after the date of the deposit referred to in
subparagraph (a) below, and the provisions of this Indenture with respect to the
Securities of such series shall no longer be in effect (except as to (i) rights
of registration of transfer and exchange of Securities of such series, (ii)
substitution of mutilated, defaced, destroyed, lost or stolen Securities of such
series, (iii) rights of Holders of Securities of such series to receive payments
of principal thereof, premium, if any, and interest, if any, thereon upon the
original stated due dates therefor (but not upon acceleration), and remaining
rights of the Holders of Securities of such series to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations, duties and immunities of
the Trustee hereunder, (v) the rights of the Holders of Securities of such
series as beneficiaries hereof with respect to the property so deposited with
the Trustee payable to all or any of them and (vi) the obligations of the Issuer
under Section 3.2 with respect to Securities of such series) and the Trustee, on
demand of the Issuer accompanied by an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent contemplated by this
provision have been complied with, and at the cost and expense of the Issuer,
shall execute proper instruments acknowledging the same, if
(a) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as funds
in trust, specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of Securities of such series (i) cash in an
amount, or (ii) U.S. Government Obligations, maturing as to principal and
interest, if any, at such times and in such amounts as will insure the
availability of cash, or (iii) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay (A) the principal of, premium, if any, and interest, if any, on all
Securities of such series on each date that such principal or interest, if
any, is due and payable, and (B) any mandatory sinking fund payments on the
dates on which such payments are due and payable in accordance with the
terms of the Indenture and the Securities of such series;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, any agreement or instrument to which the Issuer
is a party or by which it is bound; and
(c) the Issuer has delivered to the Trustee an Opinion of Counsel
based on the fact that (x) the Issuer has received from, or there has been
published by, the Internal Revenue Service a ruling or (y), since the date
hereof, there has been a change in the applicable United States federal
income tax law, in either case to the effect that, and such opinion shall
confirm that, the Holders of the Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a result
of such deposit, defeasance and discharge and will be subject to Federal
income tax on the same amount and in the same manner and at the same times,
as would have been the case if such deposit, defeasance and discharge had
not occurred.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4, all moneys and U.S. Government Obligations
deposited with the Trustee pursuant to Section 10.1 shall be held in trust, and
such moneys and all moneys from such U.S. Government Obligations shall be
applied by it to the payment, either directly or through any paying agent
(including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series for the payment or redemption of which such
moneys and U.S. Government Obligations have been deposited with the Trustee, of
all sums due and to become due thereon for principal and interest, if any, but
such moneys and U.S. Government Obligations need not be segregated from other
funds except to the extent required by law.
SECTION 10.3 Repayment of Moneys Held by Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to Securities of
any series, all moneys then held by any paying agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuer, be repaid to it or paid to the Trustee and thereupon such paying
agent shall be released from all further liability with respect to such moneys.
SECTION 10.4 Return of Moneys Held by Trustee and Paying Agent Unclaimed
for Two Years. Any moneys deposited with or paid to the Trustee or any paying
agent for the payment of the principal of or interest, if any, on any Security
of any series and not applied but remaining unclaimed for two years after the
date upon which such principal or interest, if any, shall have become due and
payable, shall, upon the written request of the Issuer and unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed
property law, be repaid to the Issuer by the Trustee for such series or such
paying agent, and the Holder of the Securities of such series shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned or
unclaimed property laws, thereafter look only to the Issuer for any payment
which such Holder may be entitled to collect, and all liability of the Trustee
or any paying agent with respect to such moneys shall thereupon cease.
SECTION 10.5 Indemnity for U.S. Government Obligations. The Issuer shall
pay and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the U.S. Government Obligations deposited pursuant to Section
10.1 or the principal or interest received in respect of such obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Partners, Incorporators, Stockholders, Officers and Directors
of Issuer Exempt from IndividuaPartners, Incorporators, Stockholders, Officers
and Directors of Issuer Exempt from Individual Liability. No recourse under or
upon any obligation, covenant or agreement contained in this Indenture, or in
any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
stockholder, officer or director, as such, of the Issuer, or any partner of the
Issuer or of any successor, either directly or through the Issuer or any
successor, under any rule of law, statute or constitutional provision or by the
enforcement of any assessment or by any legal or equitable proceeding or
otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the
consideration for the issue of the Securities.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities. Nothing in this Indenture or in the Securities, expressed
or implied, shall give or be construed to give to any Person, other than the
parties hereto and their successors and the Holders of the Senior Indebtedness
and the Holders of the Securities, any legal or equitable right, remedy or claim
under this Indenture or under any covenant or provision herein contained, all
such covenants and provisions being for the sole benefit of the parties hereto
and their successors and of the Holders of the Securities.
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture. All the
covenants, stipulations, promises and agreements in this Indenture contained by
or on behalf of the Issuer shall bind its successors and assigns, whether so
expressed or not.
SECTION 11.4 Notices and Demands on Issuer, Trustee and Holders of
Securities. Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities to or on the Issuer, or as required pursuant to the Trust Indenture
Act of 1939, may be given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Issuer is filed by the Issuer with the Trustee) to
Seagull Energy Corporation, 1001 Fannin, Suite 1700, Houston, Texas 77002,
Attention: Chairman of the Board. Any notice, direction, request or demand by
the Issuer or any Holder of Securities to or upon the Trustee shall be deemed to
have been sufficiently given or served by being deposited postage prepaid,
first-class mail (except as otherwise specifically provided herein) addressed
(until another address of the Trustee is filed by the Trustee with the Issuer)
to The Bank of New York, 101 Barclay Street, Floor 21 West, New York, New York
10286, Attention: Corporate Trust Trustee Administration.
Where this Indenture provides for notice to Holders of Securities, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in the Security register. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Issuer when such notice
is required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be reasonably satisfactory to the Trustee
shall be deemed to be sufficient notice.
SECTION 11.5 Officers' Certificates and Opinions of Counsel; Statements to
Be Contained Therein. Upon any herein application or demand by the Issuer to the
Trustee to take any action under any of the provisions of this Indenture, or as
required pursuant to the Trust Indenture Act of 1939, the Issuer shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in
the case of any such application or demand as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating
to such particular application or demand, no additional certificate or opinion
need be furnished.
Each certificate or opinion provided for in this Indenture (other than a
certificate provided pursuant to Section 4.3(d)) and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in this
Indenture shall include (a) a statement that the person making such certificate
or opinion has read such covenant or condition, (b) a brief statement as to the
nature and scope of the examination or investigation upon which the statements
or opinions contained in such certificate or opinion are based, (c) a statement
that, in the opinion of such person, he has made such examination or
investigation as is necessary to enable him to express an opinion as to whether
or not such covenant or condition has been complied with, and (d) a statement as
to whether or not, in the opinion of such person, such condition or covenant has
been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer, upon the certificate, statement or opinion of or representations by
an officer or officers of the Issuer, unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with and directed to the Trustee shall contain a statement that such firm
is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If the date
of maturity of principal of or interest, if any, on the Securities of any series
or the date fixed for redemption, purchase or repayment of any such Security
shall not be a Business Day, then payment of interest, if any, or principal need
not be made on such date, but may be made on the next succeeding Business Day
with the same force and effect as if made on the date of maturity or the date
fixed for redemption, purchase or repayment, and, in the case of payment, no
interest shall accrue for the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust Indenture
Act of 1939. If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included herein by any of Sections 310 to 317, inclusive, or
is deemed applicable to this Indenture by virtue of the provisions, of the Trust
Indenture Act of 1939, such required provision shall control.
SECTION 11.8 GOVERNING LAW. THIS INDENTURE AND EACH SECURITY SHALL BE
DEEMED TO BE A CONTRACT UNDER THE LAWS OF THE STATE OF NEW YORK AND FOR ALL
PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH
STATE.
SECTION 11.9 Counterparts. This Indenture may be executed in any number of
counterparts, each of which shall be an original; but such counterparts shall
together constitute but one and the same instrument.
SECTION 11.10 Effect of Headings. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article shall
be applicable to the Securities of any series which are redeemable before their
maturity or to any sinking fund for the retirement of Securities of a series
except as otherwise specified, as contemplated by Section 2.3 for Securities of
such series.
SECTION 12.2 Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Securities of any series to be redeemed as a whole
or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption to such Holders of
Securities of such series at their last addresses as they shall appear in the
Security register. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a series designated for redemption as a
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the principal
amount of each Security of such series held by such Holder to be redeemed, the
date fixed for redemption, the redemption price, the place or places of payment,
the CUSIP number relating to such Securities, that payment will be made upon
presentation and surrender of such Securities, that such redemption is pursuant
to the mandatory or optional sinking fund, or both, if such be the case, that
interest, if any, (or, in the case of Original Issue Discount Securities,
original issue discount) accrued to the date fixed for redemption will be paid
as specified in such notice and that on and after said date interest, if any,
(or, in the case of Original Issue Discount Securities, original issue discount)
thereon or on the portions thereof to be redeemed will cease to accrue. In case
any Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Security, a new Security or Securities of such series in
principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption
given as provided in this Section 12.2, the Issuer will deposit with the Trustee
or with one or more paying agents (or, if the Issuer is acting as its own paying
agent, set aside, segregate and hold in trust as provided in Section 3.5) an
amount of money sufficient to redeem on the redemption date all the Securities
of such series so called for redemption at the appropriate redemption price,
together with accrued interest, if any, to the date fixed for redemption. The
Issuer will deliver to the Trustee at least 45 days prior to the date fixed for
redemption (unless a shorter notice period shall be satisfactory to the Trustee)
an Officers' Certificate stating the aggregate principal amount of Securities to
be redeemed. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officers' Certificate stating that such restriction has been
complied with.
If less than all the Securities of a series are to be redeemed, the Trustee
shall select, in such manner as it shall deem appropriate and fair, Securities
of such series to be redeemed. Securities may be redeemed in part in multiples
equal to the minimum authorized denomination for Securities of such series or
any multiple thereof. The Trustee shall promptly notify the Issuer in writing of
the Securities of such series selected for redemption and, in the case of any
Securities of such series 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 of
any series shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has
been or is to be redeemed.
SECTION 12.3 Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place or places stated in such notice at the applicable redemption price,
together with interest, if any, accrued to the date fixed for redemption, and on
and after said date (unless the Issuer shall default in the payment of such
Securities at the redemption price, together with interest, if any, accrued to
said date) interest (or, in the case of Original Issue Discount Securities,
original issue discount) on the Securities or portions of Securities so called
for redemption shall cease to accrue, and such Securities shall cease from and
after the date fixed for redemption (unless an earlier date shall be specified
in a Board Resolution, Officers' Certificate or executed supplemental indenture
referred to in Sections 2.1 and 2.3 by or pursuant to which the form and terms
of the Securities of such series were established) except as provided in
Sections 6.5 and 10.4, to be entitled to any benefit or security under this
Indenture, and the Holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption. On presentation and surrender of such
Securities at a place of payment specified in said notice, said Securities or
the specified portions thereof shall be paid and redeemed by the Issuer at the
applicable redemption price, together with interest, if any, accrued thereon to
the date fixed for redemption; provided that payment of interest, if any,
becoming due on or prior to the date fixed for redemption shall be payable to
the Holders of Securities registered as such on the relevant record date subject
to the terms and provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the redemption price shall, until paid or duly provided
for, bear interest from the date fixed for redemption at the rate of interest or
Yield to Maturity (in the case of an Original Issue Discount Security) borne by
such Security.
Upon presentation of any Security redeemed in part only, the Issuer shall
execute and the Trustee shall authenticate and deliver to or on the order of the
Holder thereof, at the expense of the Issuer, a new Security or Securities of
such series, and of like tenor, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
SECTION 12.4 Exclusion of Certain Securities from Eligibility for Selection
for Redemption. Securities shall be excluded from eligibility for selection for
redemption if they are identified by registration and certificate number in an
Officers' Certificate delivered to the Trustee at least 45 days prior to the
last date on which notice of redemption may be given as being owned of record
and beneficially by, and not pledged or hypothecated by either (a) the Issuer,
or (b) a Person specifically identified in such written statement as an
Affiliate of the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum amount of
any sinking fund payment provided for by the terms of the Securities of any
series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section 12.5, or (c) receive
credit for Securities of such series (not previously so credited) redeemed by
the Issuer through any optional redemption provision contained in the terms of
such series. Securities so delivered or credited shall be received or credited
by the Trustee at the sinking fund redemption price specified in such
Securities.
On or before the 60th day next preceding each sinking fund payment date for
any series, the Issuer will deliver to the Trustee an Officers' Certificate (a)
specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of Securities of such
series and the basis for such credit, (b) stating that none of the Securities of
such series to be so credited has theretofore been so credited, (c) stating that
no defaults in the payment of interest or Events of Default with respect to such
series have occurred (which have not been waived or cured or otherwise ceased to
exist) and are continuing, and (d) stating whether or not the Issuer intends to
exercise its right to make an optional sinking fund payment with respect to such
series and, if so, specifying the amount of such optional sinking fund payment
which the Issuer intends to pay on or before the next succeeding sinking fund
payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.10 to the Trustee with
such Officers' Certificate (or reasonably promptly thereafter if acceptable to
the Trustee). Such Officers' Certificate shall be irrevocable and upon its
receipt by the Trustee the Issuer shall become unconditionally obligated to make
all the cash payments or payments therein referred to, if any, on or before the
next succeeding sinking fund payment date. Failure of the Issuer, on or before
any such 60th day, to deliver such Officers' Certificate and Securities (subject
to the parenthetical clause in the second preceding sentence) specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and
as of such date, the irrevocable election of the Issuer (i) that the mandatory
sinking fund payment for such series due on the next succeeding sinking fund
payment date shall be paid entirely in cash without the option to deliver or
credit Securities of such series in respect thereof, and (ii) that the Issuer
will make no optional sinking fund payment with respect to such series as
provided in this Section 12.5.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed
$50,000, or a lesser sum if the Issuer shall so request with respect to the
Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest, if
any, to the date fixed for redemption. If such amount shall be $50,000 or less
and the Issuer makes no such request, then it shall be carried over until a sum
in excess of $50,000 is available. The Trustee shall select, in the manner
provided in Section 12.2, for redemption on such sinking fund payment date a
sufficient principal amount of Securities of such series to absorb said cash, as
nearly as may be, and shall (if requested in writing by the Issuer) inform the
Issuer of the serial numbers of the Securities of such series (or portions
thereof) so selected. The Trustee, in the name and at the expense of the Issuer
(or the Issuer, if it shall so request the Trustee in writing) shall cause
notice of redemption of the Securities of such series to be given in
substantially the manner provided in Section 12.2 (and with the effect provided
in Section 12.3) for the redemption of Securities of such series in part at the
option of the Issuer. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to the
next cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section 12.5. Any and
all sinking fund moneys held on the stated maturity date of the Securities of
any particular series (or earlier, if such maturity is accelerated), which are
not held for the payment or redemption of particular Securities of such series
shall be applied, together with other moneys, if necessary, sufficient for the
purpose, to the payment of the principal of, and interest, if any, on, the
Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to
the Trustee in cash or shall otherwise provide for the payment of all interest,
if any, accrued to the date fixed for redemption on Securities to be redeemed on
such sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund moneys or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
with respect to such series except that, where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee shall
redeem or cause to be redeemed such Securities, provided that it shall have
received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, and subject to Article Thirteen, any moneys in the sinking fund for
such series at the time when any such default or Event of Default shall occur,
and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article Five and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 5.7 or
the default cured on or before the 60th day preceding the sinking fund payment
date in any year, such moneys shall thereafter be applied on the next succeeding
sinking fund payment date in accordance with this Section to the redemption of
such Securities.
ARTICLE THIRTEEN
SUBORDINATION
SECTION 13.1 Securities Subordinated to Senior Indebtedness. (a) The Issuer
covenants and agrees, and each Holder of Securities of each series, by his
acceptance thereof, likewise covenants and agrees, that anything in this
Indenture or the Securities of any series to the contrary notwithstanding, the
indebtedness evidenced by the Securities of each series is subordinate and
junior in right of payment, to the extent provided herein, to all Senior
Indebtedness, whether outstanding on the date of execution of this Indenture or
thereafter created, incurred or assumed, and that the subordination is for the
benefit of the holders of Senior Indebtedness, but the Securities shall in all
respects rank pari passu with all other Senior Subordinated Indebtedness of the
Issuer. The Securities shall rank senior to all existing and future Indebtedness
of the Issuer that is neither Senior Indebtedness nor Senior Subordinated
Indebtedness and only Indebtedness of the Issuer that is Senior Indebtedness
shall rank senior to the Securities in accordance with the provisions set forth
herein.
(b) Subject to Section 13.4, if (i) the Issuer shall default in the payment
of any principal of, premium, if any, or interest, if any, on any Senior
Indebtedness when the same becomes due and payable, whether at maturity or at a
date fixed for prepayment or by declaration of acceleration or otherwise, or
(ii) any other default shall occur with respect to Senior Indebtedness and the
maturity of such Senior Indebtedness has been accelerated in accordance with its
terms, then, upon written notice of such default to the Issuer by the holders of
Senior Indebtedness or any trustee therefor, unless and until, in either case,
the default has been cured or waived, and any such acceleration has been
rescinded or such Senior Indebtedness has been paid in full, no direct or
indirect payment (in cash, property, securities, by set-off or otherwise) shall
be made or agreed to be made on account of the principal of, premium, if any, or
interest, if any, on any of the Securities, or in respect of any redemption,
retirement, purchase or other acquisition of any of the Securities other than
those made in capital stock of the Issuer (or cash in lieu of fractional shares
thereof).
(c) If any default (other than a default described in paragraph (b)) shall
occur under the Senior Indebtedness, pursuant to which the maturity thereof may
be accelerated immediately without further notice (except such notice as may be
required to effect such acceleration) or the expiration of any applicable grace
periods occurs (a "Senior Nonmonetary Default"), then, upon the receipt by the
Issuer and the Trustee of written notice thereof (a "Payment Notice") from or on
behalf of holders of such Senior Indebtedness specifying an election to prohibit
such payment and other action by the Issuer in accordance with the following
provisions of this paragraph, the Issuer may not make any payment or take any
other action that would be prohibited by paragraph (b) above during the period
(the "Payment Blockage Period") commencing on the date of receipt of such
Payment Notice and ending on the earlier of (i) the date, if any, on which the
holders of such Senior Indebtedness or their representative notify the Trustee
that such Senior Nonmonetary Default is cured or waived or ceases to exist or
the Senior Indebtedness to which such Senior Nonmonetary Default relates is
discharged or (ii) the 179th day after the date of receipt of such Payment
Notice. Notwithstanding the provisions described in the immediately preceding
sentence, the Issuer may resume payments on the Securities after such Payment
Blockage Period.
(d) If (i) (A) without the consent of the Issuer, a receiver, conservator,
liquidator or trustee of the Issuer or of any of its property is appointed by
the order or decree of any court or agency or supervisory authority having
jurisdiction, and such decree or order remains in effect for more than 60 days
or (B) the Issuer is adjudicated bankrupt or insolvent or (C) any of its
property is sequestered by court order and such order remains in effect for more
than 60 days or (D) a petition is filed against the Issuer under any state or
federal bankruptcy, reorganization, arrangement, insolvency, readjustment of
debt, dissolution, liquidation or receivership law of any jurisdiction whether
now or hereafter in effect (including without limitation the Bankruptcy Code),
and is not dismissed within 60 days after such filing; or (ii) the Issuer (A)
commences a voluntary case or other proceeding seeking liquidation,
reorganization, arrangement, insolvency, readjustment of debt, dissolution,
liquidation or other relief with respect to itself or its debt or other
liabilities under any bankruptcy, insolvency or other similar law now or
hereafter in effect (including without limitation the Bankruptcy Code) or
seeking the appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, or (B) consents
to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or (C)
fails generally to, or cannot, pay its debts generally as they become due or (D)
takes any corporate action to authorize or effect any of the foregoing; or (iii)
any Subsidiary of the Issuer takes, suffers or permits to exist any of the
events or conditions referred to in the foregoing clause (i) or (ii), then all
Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property, shall be
made to any Holder of any Securities on account thereof. Any payment or
distribution, whether in cash, securities or other property (other than
securities of the Issuer or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate, at least to
the extent provided in these subordination provisions with respect to the
indebtedness evidenced by the Securities, to the payment of all Senior
Indebtedness then outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment) which would otherwise
(but for these subordination provisions) be payable or deliverable in respect of
the Securities of any series shall be paid or delivered directly to the holders
of Senior Indebtedness in accordance with the priorities then existing among
such holders until all Senior Indebtedness (including any interest thereon
accruing after the commencement of any such proceedings) shall have been paid in
full. In the event of any such proceeding, after payment in full of all sums
owing with respect to Senior Indebtedness, the Holders of the Securities,
together with the holders of any obligations of the Issuer ranking on a parity
with the Securities, shall be entitled to be paid from the remaining assets of
the Issuer the amounts at the time due and owing on account of unpaid principal
of and interest, if any, on the Securities and such other obligations before any
payment or other distribution, whether in cash, property or otherwise, shall be
made on account of any capital stock or any obligations of the Issuer ranking
junior to the Securities and such other obligations.
(e) If, notwithstanding the foregoing, any payment or distribution of any
character, whether in cash, securities or other property (other than securities
of the Issuer or any other corporation provided for by a plan of reorganization
or readjustment the payment of which is subordinate, at least to the extent
provided in the subordination provisions with respect to the indebtedness
evidenced by the Securities, to the payment of all Senior Indebtedness then
outstanding and to any securities issued in respect thereof under any such plan
of reorganization or readjustment), shall be received by the Trustee or any
Holder in contravention of any of the terms hereof, such payment or distribution
of securities shall be received in trust for the benefit of and shall be paid
over or delivered and transferred to the holders of the Senior Indebtedness then
outstanding in accordance with the priorities then existing among such holders
for application to the payment of all Senior Indebtedness remaining unpaid, to
the extent necessary to pay all such Senior Indebtedness in full. In the event
of the failure of the Trustee or any Holder to endorse or assign any such
payment, distribution or security, each holder of Senior Indebtedness is hereby
irrevocably authorized to endorse or assign the same.
(f) No present or future holder of any Senior Indebtedness shall be
prejudiced in the right to enforce subordination of the indebtedness evidenced
by the Securities by any act or failure to act on the part of the Issuer or any
Holder of Securities. Nothing contained herein shall impair, as between the
Issuer and the Holders of Securities of each series, the obligation of the
Issuer to pay to such Holders the principal of and interest, if any, on such
Securities or prevent the Trustee or the Holder from exercising all rights,
powers and remedies otherwise permitted by applicable law or hereunder upon a
default or Event of Default hereunder, all subject to the rights of the holders
of the Senior Indebtedness to receive cash, securities or other property
otherwise payable or deliverable to the Holders.
(g) Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash, securities or other
property equal to the amount of such Senior Indebtedness then outstanding. Upon
the payment in full of all Senior Indebtedness, the Holders of Securities of
each series shall be subrogated to all rights of any holders of Senior
Indebtedness to receive any further payment or distributions applicable to the
Senior Indebtedness until the indebtedness evidenced by the Securities of such
series shall have been paid in full and such payments or distributions received
by such Holders, by reason of such subrogation, of cash, securities or other
property which otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between the Issuer and its creditors other than the
holders of Senior Indebtedness, on the one hand, and such Holders, on the other
hand, be deemed to be a payment by the Issuer on account of Senior Indebtedness,
and not on account of the Securities of such series.
(h) The provisions of this Section 13.1 shall not impair any rights,
interests, remedies or powers of any secured creditor of the Issuer in respect
of any security interest the creation of which is not prohibited by the
provisions of this Indenture.
(i) The securing of any obligations of the Issuer, otherwise ranking on a
parity with the Securities or ranking junior to the Securities, shall not be
deemed to prevent such obligations from constituting, respectively, obligations
ranking on a parity with the Securities or ranking junior to the Securities.
SECTION 13.2 Reliance on Certificate of Liquidating Agent; Further Evidence
as to Ownership of Senior InReliance on Certificate of Liquidating Agent;
Further Evidence as to Ownership of Senior Indebtedness. Upon any payment or
distribution of assets of the Issuer, the Trustee and the Holders shall be
entitled to rely upon an order or decree issued by any court of competent
jurisdiction in which such dissolution or winding up or liquidation or
reorganization or arrangement proceedings are pending or upon a certificate of
the trustee in bankruptcy, receiver, assignee for the benefit of creditors or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders, for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
indebtedness of the Issuer, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent thereto or to
this Article Thirteen. In the absence of any such bankruptcy trustee, receiver,
assignee or other Person, the Trustee shall be entitled to rely upon written
notice by a Person representing himself to be a holder of Senior Indebtedness
(or a trustee or representative on behalf of such holder) as evidence that such
Person is a holder of Senior Indebtedness (or is such a trustee or
representative). If the Trustee determines, in good faith, that further evidence
is required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distributions pursuant to this
Article Thirteen, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, as to the extent to which such Person is entitled to
participate in such payment or distribution, and as to other facts pertinent to
the rights of such Person under this Article Thirteen, and if such evidence is
not furnished, the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 13.3 Payment Permitted If No Default. Nothing contained in this
Article Thirteen or elsewhere in this Indenture, or in any of the Securities,
shall prevent (a) the Issuer at any time, except during the pendency of any
default with respect to Senior Indebtedness described in Section 13.1(b) or
Section 13.1(c) or of any of the events described in Section 13.1(d), from
making payments of the principal of or interest, if any, on the Securities, or
(b) the application by the Trustee or any paying agent of any moneys deposited
with it hereunder to payments of the principal of or interest, if any, on the
Securities, if, at the time of such deposit, the Trustee or such paying agent,
as the case may be, did not have the written notice provided for in Section 13.5
of any event prohibiting the making of such deposit, or if, at the time of such
deposit (whether or not in trust) by the Issuer with the Trustee or paying agent
(other than the Issuer) such payment would not have been prohibited by the
provisions of this Article Thirteen, and the Trustee or any paying agent shall
not be affected by any notice to the contrary received by it on or after such
date.
SECTION 13.4 Disputes with Holders of Certain Senior Indebtedness. Any
failure by the Issuer to make any payment on or under any Senior Indebtedness,
other than any Senior Indebtedness as to which the provisions of this Section
13.4 shall have been waived by the Issuer in the instrument or instruments by
which the Issuer incurred, assumed, guaranteed or otherwise created such Senior
Indebtedness, shall not be deemed a default under Section 13.1 if (i) the Issuer
shall be disputing its obligation to make such payment or perform such
obligation, and (ii) either (A) no final judgment relating to such dispute shall
have been issued against the Issuer which is in full force and effect and is not
subject to further review, including a judgment that has become final by reason
of the expiration of the time within which a party may seek further appeal or
review, or (B) if a judgment that is subject to further review or appeal has
been issued, the Issuer shall in good faith be prosecuting an appeal or other
proceeding for review, and a stay of execution shall have been obtained pending
such appeal or review.
SECTION 13.5 Trustee Not Charged with Knowledge of Prohibition. Anything in
this Article Thirteen or elsewhere in this Indenture contained to the contrary
notwithstanding, the Trustee shall not at any time be charged with knowledge of
the existence of any facts which would prohibit the making of any payment of
moneys to or by the Trustee and shall be entitled to assume conclusively that no
such facts exists and that no event specified in clauses (a) and (b) of Section
13.1 has happened unless and until the Trustee shall have received an Officers'
Certificate to the effect or notice in writing to that effect signed by or on
behalf of the holder or holders, or the representatives, of Senior Indebtedness
who shall have been certified by the Issuer or otherwise established to the
reasonable satisfaction of the Trustee to be such holder or holders or
representatives or from any trustee under any indenture pursuant to which such
Senior Indebtedness shall be outstanding; provided, however, that, if the
Trustee shall not have received the Officers' Certificate or notice provided for
in this Section 13.5 at least three Business Days preceding the date upon which
by the terms hereof any moneys become payable for any purpose (including,
without limitation, the payment of either the principal of or interest, if any,
on any Security), then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
moneys and apply the same to the purpose for which they were received and shall
not be affected by any notice to the contrary that may be received by it within
three Business Days preceding such date. The Issuer shall give prompt written
notice to the Trustee and to each paying agent of any facts that would prohibit
any payment of moneys to or by the Trustee or any paying agent, and the Trustee
shall not be charged with knowledge of the curing of any default or the
elimination of any other fact or condition preventing such payment or
distribution unless and until the Trustee shall have received an Officers'
Certificate to such effect.
SECTION 13.6 Trustee to Effectuate Subordination. Each Holder of Securities
by his acceptance thereof authorizes and directs the Trustee on his behalf to
take such action as may be necessary or appropriate to effectuate the
subordination as between such Holder and holders of Senior Indebtedness as
provided in this Article Thirteen and appoints the Trustee its attorney-in-fact
for any and all such purposes.
SECTION 13.7 Rights of Trustee as Holder of Senior Indebtedness. The
Trustee shall be entitled to all the rights set forth in this Article Thirteen
with respect to any Senior Indebtedness which may at the time be held by it, to
the same extent as any other holder of Senior Indebtedness and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder. Nothing
in this Article Thirteen shall apply to claims of, or payments to, the Trustee
under or pursuant to Section 6.6.
SECTION 13.8 Article Applicable to Paying Agents. In case at any time any
paying agent other than the Trustee shall have been appointed by the Issuer and
be then acting hereunder, the term "Trustee" as used in this Article Thirteen
shall in such case (unless the context shall otherwise require) be construed as
extending to and including such paying agent within its meaning as fully for all
intents and purposes as if the paying agent were named in this Article Thirteen
in addition to or in place of the Trustee; provided, however, that Sections 13.5
and 13.7 shall not apply to the Issuer if it acts as paying agent.
SECTION 13.9 Subordination Rights Not Impaired by Acts or Omissions of the
Issuer or Holders of Senior InSubordination Rights Not Impaired by Acts or
Omissions of the Issuer or Holders of Senior Indebtedness. No right of any
present or future holders of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Issuer or by any act or failure to act,
in good faith, by any such holder, or by any noncompliance by the Issuer with
the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof which any such holder may have or be otherwise charged with.
The holders of Senior Indebtedness, may at any time or from time to time and in
their absolute direction, change the manner, place or terms of payment, change
or extend the time of payment of, or renew or alter, any such Senior
indebtedness, or amend or supplement any instrument pursuant to which any such
Senior Indebtedness is issued or by which it may be secured, or release any
security therefor, or exercise or refrain from exercising any other of their
rights under the Senior Indebtedness, including, without limitation, the waiver
of default thereunder, all without notice to or assent from the Holders of the
Securities or the Trustee and without affecting the obligations of the Issuer,
the Trustee or the Holders of Securities under this Article Thirteen.
SECTION 13.10 Trustee Not Fiduciary for Holders of Senior Indebtedness. The
Trustee shall not be deemed to owe any fiduciary duty to the holders of the
Senior Indebtedness, and shall not be liable to any such holders if it shall
mistakenly pay over or distribute money or assets to Securityholders or the
Issuer. With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligations as
are specifically set forth in this Article Thirteen and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, effective as of July 15, 1993.
SEAGULL ENERGY CORPORATION
By:
Title:
Attest:
By:
Title:
THE BANK OF NEW YORK,
as Trustee
By:
Title:
Attest:
By:
Title:
SEAGULL ENERGY CORPORATION
8-5/8% Senior Subordinated Note due 2005
SEAGULL ENERGY CORPORATION, a corporation duly organized and existing under the
laws of Texas (herein called the "Company", which term indicates any successor
corporation under the indenture hereinafter referred to), FOR VALUE RECEIVED,
HEREBY PROMISES TO PAY TO
, or registered assigns the principal sum of Dollars on August 1, 2005, in such
coin or currency of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts, and to pay
interest, semi-annually on February 1 and August 1 of each year, on said
principal sum, in like coin or currency, at the rate per annum specified in the
title of this Security, to the registered holder hereof as of the close of
business on the January 15 or July 15 next preceding such interest payment date,
except as otherwise provided in the indenture referred to on the reverse hereof,
all at the office or agency of the Company in the City of Houston, State of
Texas, from the February 1 or August 1, as the case may be, next preceding the
date of this Security to which interest has been paid (unless the date hereof is
a February 1 or August 1 to which interest has been paid, in which case from the
date hereof, or unless the date hereof is prior to the payment of any interest
on the Securities, in which case from July 29, 1993, or unless the date hereof
is between the January 15 or July 15, as the case may be, and the next following
February 1 or August 1 to which interest has been paid or, if no interest has
been paid on the Securities, from July 29, 1993) until payment of said principal
sum has been made or duly provided for; provided, however, that payment of
interest may be made at the option of the Company by check mailed on or before
the payment date to the address of the person entitled thereto as such address
shall appear in the Security register. Interest shall be computed on the basis
of a 360-day year consisting of twelve 30-day months.
This Security shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Trustee or an
Authenticating Agent under the Indenture referred to on the reverse hereof.
REFERENCE IS MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE
REVERSE HEREOF. SHUCH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME
EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated:
TRUSTEES'S AUTHENTICATION CERTIFICATE
This is one of the Securities of the series designated herein referred to in the
within-mentioned Indenture.
THE BANK OF NEW YOURK,
as Trustee
By:
Authorized Signatory
SEAGULL ENERGY CORPORATION
/s/ Sylvia Sanchez /s/ Barry J. Galt
Secretary Chairman of the Board
SEAGULL ENERGY CORPORATION
8-5/8% SENIOR SUBORDINATED NOTE DUE 2005
1. Designation
This Security is one of a duly authorized series of Securities of the
Company, designated as its 8-5/8% Senior Subordinated Notes Due 2005 (herein
called the "Securities"), limited to the aggregate principal amount of
$150,000,000, all issued or to be issued under and pursuant to a senior
subordinated indenture dated as of July 15, 1993 (herein called the
"Indenture"), duly executed and delivered by the Company and The Bank of New
York, as trustee, to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitation of rights,
obligations, duties and immunities thereunder of the Trustee, the Company and
the Holders of the Securities. Capitalized terms used but not defined herein are
defined in the Indenture and are used herein with the same meanings as ascribed
to them therein.
2. Paying Agent and Registrar
Initially, the Trustee will act as paying agent, registrar and as the
agent where notices and demands to or upon the Company in respect of the
Securities may be served. The Company may appoint and change any paying agent,
registrar or agent for notices without notice, other than notice to the Trustee.
The Company or any of its Subsidiaries or any of their Affiliates may act as
paying agent, registrar or agent of notices.
3. Denominations; Transfers; Exchange
The Securities are in registered form, without coupons, in
denominations of $1,000 in principal amount and integral multiples of $1,000.
Upon due presentation for registration of transfer of this Security at the
corporate trust office of the Trustee in the City of New York, State of New York
or any other such designated office or agency of the Company, a new Security or
Securities of authorized denominations for an equal aggregate principal amount
will be issued to the transferee in exchange herefor, subject to the limitations
imposed by the Indenture, without charges except for any tax or other
governmental charge imposed in connection therewith, and the Security may in a
like manner be exchanged for one or more new Securities for other authorized
denominations but of the same aggregate principal amount.
4. Persons Deemed Owners
The Company, the Trustee, any paying agent and any registrar may deem
and treat the registered Holder hereof as the absolute owner of this Security
(whether or not this Security shall be overdue and notwithstanding any notation
of ownership or other writing hereon) for purposes of receiving payment hereof,
or on account hereof, and for all other purposes, and neither the Company, the
Trustee, any paying agent not any registrar shall be affected by any notice to
the contrary. All payments made to or upon the order of such registered Holder
shall, to the extent of the sum or sums so paid, satisfy and discharge the
liability for moneys payable on this Security.
5. Defaults; Amendment; Waiver
In case an Event of Default shall have occurred and be continuing, the
principal hereof and the interest accrued thereon may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee with the consent of the Holders of not less than a majority in aggregate
principal amount of each series of Securities then Outstanding under the
Indenture and affected thereby, evidenced as provided in the Indenture, to
execute supplemental indentures adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture or of any
supplemental indenture or modifying in manner the rights of the Holders of the
Securities of such series; provided, however, that no such supplemental
indenture shall (i) extend the stated final maturity of any Security, or reduce
the principal amount hereof, or reduce the rate or extend the time of payment of
interest hereon, or reduce or alter the method of computation of any amount
payable on redemption, repayment or purchase by the Company, or change the coin
or currency in which payments are to be made, or impair or affect her right of
any Holder to institute suit for enforcement of any payment hereof or (ii)
reduce the aforesaid percentage of any series of such Securities, without the
consent of the Holders of each Security of any series so affected. It is also
provided in the Indenture that the Holders of a majority in aggregate principal
amount of the Securities of any series then Outstanding may on behalf of the
Holders of all of the Securities of such series waive any past default or Event
of Default under the Indenture and its consequences except a default in the
payment of the principal of or interest on any of the Securities of such Series.
Any such consent or waiver by the Holder of this Security (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder and
upon all future Holders and owners of this Security and any Securities which may
be issued in exchange or substitution hereof, irrespective of whether or not any
notation thereof is made upon this Security or such other Securities.
6. Subordination
The indebtedness evidenced by the Securities is subordinate and junior
in right payment , to the extent provided in the Indenture, to all Senior
Indebtedness, whether outstanding on the day e of execution of the Indenture or
thereafter created, incurred or assumed, and the subordination is for the
benefit of the holders of Senior Indebtedness, but the Securities shall in all
respects rank pari passu with all other Senior Subordinated Indebtedness of the
Company. The Securities rank senior to all existing and future indebtedness of
the Company that is neither Senior Indebtedness or Senior Subordinated
Indebtedness and only Indebtedness of the Company that is Senior Indebtedness
ranks senior to the Securities in accordance with the provisions set forth in
the Indenture.
7. Change of Control
If a Change of Control shall occur at any time, than each Holder shall
have the right to require that the Company repurchase such Holder's Securities
in whole or in part in integral multiples of $1,000, at a purchase price in cash
in an amount equal to 101% of the principal amount thereof, plus accrued and
unpaid interest, if any to the date of purchase. The Company shall be obligated
to give the holders of securities and the Trustee within 30 days following a
Change of Control notice specifying (i) the purchase date, (ii) the place at
which the Securities shall be presented and surrendered for purchase, (iii) that
interest accrued to the purchase date will be paid upon such presentation and
surrender and (iv) that interest shall cease to accrue on Securities surrendered
for purchase as of such purchase date.
8. Redemption
On or after August 1, 2000, the Senior Subordinated Notes shall be
redeemable at any time at the option of the Company, in whole or from time to
time in part, at the redemption prices set forth below (expressed as a
percentage of principal amount), plus accrued interest to the redemption date:
If redeemed during the 12-month Redemption
period beginning August 1, Price
---------------------------------------- ----------
2000.................................. 102.59%
2001.................................. 101.73%
2002.................................. 100.86%
2003 and thereafter................... 100.00%
Notice of redemption shall be mailed to each holder at least 30 days
but not more than 60 days prior to the redemption date. On and after the
redemption date, interest shall cease to accrue on Senior Subordinated Notes or
portions thereof called for redemption.
9. No Recourse Against Others
No recourse under or upon any obligation, covenant or agreement
contained in the Indenture, or in any Security, or because of any indebtedness
evidenced thereby or hereby, shall be had against any incorporator, as such or
against any past, present or future stockholder, officer or director, as such of
the Company, or any partner of the Company or of any successor, wither directly
or though the Company or any successor, under any rule of law, statute or
constitutional provision or by the enforcement of any assessment or by any legal
or equitable proceeding or otherwise, all such liability being expressly waived
and released by the acceptance of this Security by the Holder hereof and as part
of the consideration of the issue of the Securities.
10. GOVERNING LAW
THE INDENYURE AND THIS SECURITY SHALL BE DEEMED TO BE A CONTRACT UNDER
THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF SUCH STATE.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common TEN ENT - as tenants by the entireties JT TEN
- as joint tenants with rights
of survivorship and not as
tenants in common
UNIF GIFT MIN ACT ______________ Custodian ________________
(Cust) (Minor)
Under Uniform Gifts to Minors
Act _____________________
(State)
Additional abbreviations may also be used though not in the
above list.
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
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Please print or typewrite name and address including postal zip code of assignee
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the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
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attorney to transfer said Security on the books of the Company, with full power
of substitution in the premises.
Dated:_______________________ ____________________________________
Notice: The signature to this assignment must correspond with the
name as written upon the face of the within instrument in every
particular, without alteration or enlargement or any change
whatever.
SEAGULL ENERGY CORPORATION
RESOLUTIONS ADOPTED BY THE
CHAIRMAN OF THE BOARD OF DIRECTORS
EFFECTIVE JULY 22, 1993
WHEREAS, on June 23, 1993, the Board of Directors of the Company
approved the issuance by the Company, publicly or privately from time to time,
of up to $350,000,000 aggregate initial offering prices of bonds, debentures,
notes and/or other debt obligations (collectively, "Securities");
WHEREAS, the Board of Directors has authorized the Executive Committee
of the Company or the Chairman of the Board of the Company to determine the
terms and conditions of the Securities;
NOW, THEREFORE, in furtherance of the foregoing, the Chairman of the
Board of the Company hereby adopts the following resolutions:
RESOLVED, that Seagull Energy Corporation (the "Company") issue and
sell $100,000,000 aggregate principal amount of 7-7/8% Senior Notes Due 2003
(the "Senior Notes") on substantially the terms and conditions set forth in
Exhibit A hereto;
RESOLVED, that the Company issue and sell $150,000,000 aggregate
principal amount of 8-5/8% Senior Subordinated Notes Due 2005 ("Senior
Subordinated Notes") on substantially the terms and conditions set forth in
Exhibit B hereto;
RESOLVED, that the Senior Notes and Senior Subordinated Notes shall
have the terms set forth in the Company's Prospectus Supplement dated July 22,
1993 to its Prospectus dated July 22, 1993;
RESOLVED, that the form, terms and provisions of the Underwriting
Agreement dated July 22, 1993 (the "Underwriting Agreement") by and among the
Company and Dillon, Read & Co. Inc., Donaldson, Lufkin & Jenrette Securities
Corporation, J.P. Morgan Securities Inc. and Merrill Lynch, Pierce, Fenner &
Smith Incorporated (the "Underwriters"), as well as the execution and delivery
of the Underwriting Agreement by the President, and Vice President or the
Treasurer of the Company on behalf of the Company and the performance of the
transactions contemplated by the Underwriting Agreement on behalf of the Company
by the appropriate officers of the Company, be and they hereby are, adopted,
ratified and approved;
RESOLVED, that the public offering price for the Senior Notes and for
the Senior Subordinated Notes set forth in the Prospectus Supplement dated July
22, 1993 be, and it hereby is, adopted, ratified and approved;
RESOLVED, that the discounts and commissions for the sale of the Senior
Notes and the Senior Subordinated Notes, payable tot he Underwriters pursuant to
the Underwriting Agreement be, and they hereby are, ratified, adopted and
approved;
RESOLVED, that the Senior Notes and the Senior Subordinated Notes shall
be in the form approved by the Chairman of the Board, the President or any Vice
President of the Company, such officer's approval to be conclusively evidenced
by his delivery of the Senior Notes and the Senior Subordinated Notes for and on
behalf of the Company at the closing under Underwriting Agreement to be executed
among the Company, Dillon, Read & Co. Inc., Donaldson, Lufkin & Jenrette
Securities Corporation, J.P. Morgan Securities Inc.
and Merrill Lynch, Pierce, Fenner & Smith Incorporated; and
RESOLVED, that the Chairman of the Board, the President or any Vice
President of the Company be, and each of them hereby is, authorized and
empowered, for and on behalf of the Company and in its name, to execute and
deliver all agreements, powers of attorney, certificates and other instruments
and documents as he may deem necessary or appropriate to carry out the
transactions approved by the preceding resolutions.
EXECUTED to be effective as of July 22, 1993.
/s/ Barry J. Galt
Barry J. Galt
Chairman of the Board
EXHIBIT A
TERMS OF THE SENIOR NOTES
Title: 7-7/8% Senior Notes due 2003.
Principal Amount: $100,000,000.
Interest: 7-7/8% per annum, from July 29, 1993, payable semiannually on
each February 1 and August 1, commencing on February 1, 1994, to holders of
record on the preceding January 15 or July 15, as the case may be.
Interest on the Senior Notes shall be calculated on the basis of a
360-day year of twelve 30-day months.
Maturity: August 1, 2003.
Mandatory Redemption: If a "Change of Control" shall occur at any time,
than each holder shall have the right to require that the Company repurchase
such holder's Senior Notes in whole or in part in integral multiples of $1,000,
at a purchase price in cash in an amount equal to 101% of the principal amount
thereof, plus accrued and unpaid interest, if any to the date of purchase.
The Company shall be obligated to give holders of Senior Notes and the
Trustee within 30 days following a Change of Control notice specifying (i) the
purchase date (which date shall be no earlier than 30 days nor more than 60 days
from the date the Company notifies the holders of the occurrence of a Change of
Control), (ii) the place at which Notes shall be presented and surrendered for
purchase, (iii) that interest accrued to the purchase date shall be paid upon
such presentation and surrender and (iv) that interest shall cease to accrue on
Senior Notes surrendered for purchase as of such purchase date. Any tender by a
holder of Senior Notes shall be irrevocable.
A-1
For purposes of the Senior Notes, a "Change of Control: shall mean a
change resulting when any Unrelated Person or any Unrelated Persons acting
together which would constitute a Group together with any Affiliates or Related
Persons thereof (in each case also constituting Unrelated Persons) shall at any
time either (i) Beneficially Own more than 50% of the aggregate voting power of
all classes of Voting Stock of the Company or (ii) succeed in having sufficient
of its or their nominees elected to the Board of Directors of the Company such
that such nominees, when added to any existing director remaining on the Board
of Directors of the Company after such election who is an Affiliate or Related
Person of such person or Group, shall constitute a majority of the Board of
Directors of the Company.
As used herein (a) "Beneficially Own" means "beneficially own" as
defined in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the
"exchange Act"), or any successor provision thereto; provided, however, that,
for purposes of this definition, a person shall not be deemed to Beneficially
Own securities tendered pursuant to a tender or exchange offer made by or on
behalf of such person or any of such person's Affiliates until such tendered
securities are accepted for purchase or exchange; (b) "Group" means "group" for
purposes of Section 13(d) of the Exchange Act; (c) "Unrelated Person" means at
any time any person other than the Company or any subsidiary of the Company and
other than any trust for any employee benefit plan of the Company or any
subsidiary of the Company; (d) "related Person" of any person shall mean any
other person owning (1) 5% or more of the outstanding common stock of such
person or (2) 5% or more of the Voting Stock of such person; (e) "Voting Stock"
of any such person shall mean capital stock of such person that ordinarily has
voting power for the election of directors (or persons performing similar
functions) of such person, whether at all times or only so long as no senior
class of securities has such voting power by reason of any contingency; and (f)
"Affiliate" of any persons shall mean any other person that directly or
indirectly control, or in under common control with, or is controlled by, such
person.
Sinking Fund: None.
Offices for Notices and Payments, Etc.: Principal of and interest on
the Senior Notes shall be payable, and the Senior Notes shall be exchangeable
and transfers thereof shall be registrable, at the corporate trust office of the
Trustee in New York, New York; provided however, that at the option of the
Company, payment of interest may be made by check mailed to the address of the
person entitled thereto at such person's registered address.
A-2
Global Securities: The Senior Notes shall not be issuable as Global
Securities.
Trustee: The Bank of New York shall serve as the trustee, depositary,
authenticating or paying agent, transfer agent and registrar with respect to the
Senior Notes.
Names and Addresses of Underwriters:
Dillon, Read & Co. Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
c/o Dillon, Read & Co. Inc.
535 Madison Avenue
New York, New York 10022
A-3
EXHIBIT B
TERMS OF THE SENIOR SUBORDINATED NOTES
Title: 8-5/8% Senior Subordinated Notes due 2005.
Principal Amount: $150,000,000.
Interest: 8-5/8% per annum, from July 29, 1993, payable semiannually on
each February 1 and August 1, commencing on February 1, 1994, to holders of
record on the preceding January 15 or July 15, as the case may be.
Interest on the Senior Subordinated Notes shall be calculated on the
basis of a 360-day year of twelve 30-day months.
Maturity: August 1, 2005.
Optional Redemption: On or after August 1, 2000, the Senior
Subordinated Notes shall be redeemable at any time at the option of the Company,
in whole or from time to time in part, at the redemption prices set forth below
(expressed as a percentage of principal amount), plus accrued interest to the
redemption date:
If redeemed during the 12-month Redemption
period beginning August 1, Price
---------------------------------------- ---------------
2000.................................. 102.59%
2001.................................. 101.73%
2002.................................. 100.86%
2003 and thereafter................... 100.00%
Notice of redemption shall be mailed to each holder at least 30 days
but not more than 60 days prior to the redemption date. On and after the
redemption date, interest shall cease to accrue on Senior Subordinated Notes or
portions thereof called for redemption.
B-1
Mandatory Redemption: If a "Change of Control" shall occur at any time,
than each holder shall have the right to require that the Company repurchase
such holder's Senior Subordinated Notes in whole or in part in integral
multiples of $1,000, at a purchase price in cash in an amount equal to 101% of
the principal amount thereof, plus accrued and unpaid interest, if any to the
date of purchase.
The Company shall be obligated to give holders of Senior Subordinated
Notes and the Trustee within 30 days following a Change of Control notice
specifying (i) the purchase date (which date shall be no earlier than 30 days
nor more than 60 days from the date the Company notifies the holders of the
occurrence of a Change of Control), (ii) the place at which Notes shall be
presented and surrendered for purchase, (iii) that interest accrued to the
purchase date shall be paid upon such presentation and surrender and (iv) that
interest shall cease to accrue on Senior Subordinated Notes surrendered for
purchase as of such purchase date. Any tender by a holder of Senior Subordinated
Notes shall be irrevocable.
For purposes of the Senior Subordinated Notes, a "Change of Control:
shall mean a change resulting when any Unrelated Person or any Unrelated Persons
acting together which would constitute a Group together with any Affiliates or
Related Persons thereof (in each case also constituting Unrelated Persons) shall
at any time either (i) Beneficially Own more than 50% of the aggregate voting
power of all classes of Voting Stock of the Company or (ii) succeed in having
sufficient of its or their nominees elected to the Board of Directors of the
Company such that such nominees, when added to any existing director remaining
on the Board of Directors of the Company after such election who is an Affiliate
or Related Person of such person or Group, shall constitute a majority of the
Board of Directors of the Company.
As used herein (a) "Beneficially Own" means "beneficially own" as
defined in Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the
"exchange Act"), or any successor provision thereto; provided, however, that,
for purposes of this definition, a person shall not be deemed to Beneficially
Own securities tendered pursuant to a tender or exchange offer made by or on
behalf of such person or any of such person's Affiliates until such tendered
securities are accepted for purchase or exchange; (b) "Group" means "group" for
purposes of Section 13(d) of the Exchange Act; (c) "Unrelated Person" means at
any time any person other than the Company or any subsidiary of the Company and
other than any trust for any employee benefit plan of the Company or any
subsidiary of the Company; (d) "related Person" of any person shall mean any
other person owning (1) 5% or more of the outstanding common stock of such
person or (2) 5% or more of the Voting Stock of such person; (e) "Voting Stock"
of any such person shall mean capital stock of such person that ordinarily has
voting power for the election of directors (or persons
B-2
performing similar functions) of such person, whether at all times or only so
long as no senior class of securities has such voting power by reason of any
contingency; and (f) "Affiliate" of any persons shall mean any other person that
directly or indirectly control, or in under common control with, or is
controlled by, such person.
Sinking Fund: None.
Offices for Notices and Payments, Etc.: Principal of and interest on
the Senior Subordinated Notes shall be payable, and the Senior Subordinated
Notes shall be exchangeable and transfers thereof shall be registrable, at the
corporate trust office of the Trustee in New York, New York; provided however,
that at the option of the Company, payment of interest may be made by check
mailed to the address of the person entitled thereto at such person's registered
address.
Global Securities: The Senior Subordinated Notes shall not be issuable
as Global Securities.
Trustee: The Bank of New York shall serve as the trustee, depositary,
authenticating or paying agent, transfer agent and registrar with respect to the
Senior Notes.
Names and Addresses of Underwriters:
Dillon, Read & Co. Inc.
Donaldson, Lufkin & Jenrette Securities Corporation
J.P. Morgan Securities Inc.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
c/o Dillon, Read & Co. Inc.
535 Madison Avenue
New York, New York 10022
B-3