EXHIBIT 4.1
DENBURY RESOURCES INC.
Issuer
[ ] Notes Due [ ]
INDENTURE
Dated as of [ ]
[ ], Trustee
TABLE OF CONTENTS
ARTICLE I - Definitions....................................................................1
SECTION 1.01. Certain Terms Defined.......................................... 1
SECTION 1.02. Incorporation by Reference of Trust
Indenture Act........................................ 14
SECTION 1.03. Rules of Construction......................................... 14
ARTICLE II - Debt Securities............................................................. 15
SECTION 2.01. Forms Generally............................................... 15
SECTION 2.02. Form of Trustee's Certificate of Authentication................15
SECTION 2.03. Principal Amount; Issuable in Series...........................15
SECTION 2.04. Execution of Debt Securities...................................18
SECTION 2.05. Authentication and Delivery of Debt Securities.................19
SECTION 2.06. Denomination of Debt Securities................................20
SECTION 2.07. Registration of Transfer and Exchange..........................20
SECTION 2.08. Temporary Debt Securities......................................22
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities...........23
SECTION 2.10. Cancellation of Surrendered Debt Securities....................24
SECTION 2.11. Provisions of the Indenture and Debt Securities for the
Sole Benefit of the Parties and the Holders.................24
SECTION 2.12. Payment of Interest; Rights Preserved..........................24
SECTION 2.13. Securities Denominated in Foreign Currencies...................25
SECTION 2.14. Wire Transfers.................................................25
SECTION 2.15. Securities Issuable in the Form of a Global Security...........25
SECTION 2.16. Medium Term Securities.........................................28
SECTION 2.17. Defaulted Interest.............................................29
SECTION 2.18. Judgments......................................................30
ARTICLE III - Redemption of Debt Securities..............................................30
SECTION 3.01. Applicability of Article.......................................30
SECTION 3.02. Notice of Redemption; Selection of Debt Securiti...............30
SECTION 3.03. Payment of Debt Securities Called for Redemption...............32
SECTION 3.04. Mandatory and Optional Sinking Funds...........................33
SECTION 3.05. Redemption of Debt Securities for Sinking Fund.................33
ARTICLE IV - Particular Covenants of the Company..........................................35
SECTION 4.01. Payment of Principal of, and Premium, If Any, and Interest
on, Debt Securities.........................................35
SECTION 4.02. Maintenance of Offices or Agencies for Registration of Transfer,
Exchange and Payment of Debt Securities.....................36
SECTION 4.03 Appointment to fill a Vacancy in the Office of the Trustee.....36
SECTION 4.04. Duties of Paying Agents, etc...................................36
SECTION 4.05. Statement by Officers as to Default............................37
SECTION 4.06. Further Instruments and Acts...................................38
SECTION 4.07. Corporate Existence............................................38
SECTION 4.08. Maintenance of Properties......................................38
SECTION 4.09. Payment of Taxes and Other Claims..............................38
SECTION 4.10. Limitation on Liens............................................39
ARTICLE V - Holders' Lists and Reports by the Company And the Trustee.....................39
SECTION 5.01. Company to Furnish Trustee Information as to Names and
Addresses of Holders; Preservation of Information...........39
SECTION 5.02. Communications to Holders......................................40
SECTION 5.03. Reports by Company.............................................40
SECTION 5.04. Reports by Trustee.............................................41
SECTION 5.05. Record Dates for Action by Holders.............................41
ARTICLE VI - Remedies of the Trustee and Holders in Event of Default......................41
SECTION 6.01. Events of Default..............................................43
SECTION 6.02. Collection of Indebtedness by Trustee, etc. ...................45
SECTION 6.03. Application of Moneys Collected by Trustee.....................47
SECTION 6.04. Limitation on Suits by Holders.................................48
SECTION 6.05. Remedies Cumulative; Delay or Omission in Exercise of Rights
Not a Waiver of Default.....................................49
SECTION 6.06. Rights of Holders of Majority in Principal Amount of Debt
Securities to Direct Trustee and to Waive Default...........49
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but May
Withhold Such Notice in Certain Circumstances...............50
SECTION 6.08. Requirement of an Undertaking To Pay Costs in Certain Suits
under the Indenture or Against the Trustee..................50
ARTICLE VII - Concerning the Trustee......................................................50
SECTION 7.01. Certain Duties and Responsibilities............................50
SECTION 7.02. Certain Rights of Trustee......................................52
SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in Debt
Securities..................................................53
SECTION 7.04. Trustee, Paying Agent or Registrar May Own Debt Securities.....54
SECTION 7.05. Moneys Received by Trustee to Be Held in Trust.................54
SECTION 7.06. Compensation and Reimbursement.................................54
SECTION 7.07. Right of Trustee to Rely on an Officers' Certificate Where No
Other Evidence Specifically Prescribed......................55
SECTION 7.08. Separate Trustee; Replacement of Trustee.......................55
SECTION 7.09. Successor Trustee by Merger....................................56
SECTION 7.10. Eligibility; Disqualification..................................57
SECTION 7.11. Preferential Collection of Claims Against Company..............57
SECTION 7.12. Compliance with Tax Laws.......................................57
ARTICLE VIII - Concerning the Holders.....................................................57
SECTION 8.01. Evidence of Action by Holders..................................57
SECTION 8.02. Proof of Execution of Instruments and of Holding of Debt
Securities..................................................58
SECTION 8.03. Who May Be Deemed Owner of Debt Securities.....................58
SECTION 8.04. Instruments Executed by Holders Bind Future Holders............58
ARTICLE IX - Supplemental Indentures......................................................59
SECTION 9.01. Purposes for Which Supplemental Indenture May Be Entered
into Without Consent of Holders.............................59
SECTION 9.02. Modification of Indenture with Consent of Holders of Debt
Securities..................................................62
SECTION 9.03. Effect of Supplemental Indentures..............................63
SECTION 9.04. Debt Securities May Bear Notation of Changes by
Supplemental Indentures.....................................63
ARTICLE X - Consolidation, Merger, Sale or Conveyance.....................................63
SECTION 10.01. Consolidations and Mergers of the Company......................63
SECTION 10.02. Rights and Duties of Successor Corporation.....................64
ARTICLE XI - Satisfaction and Discharge of Indenture; Defeasance; Unclaimed Moneys........65
SECTION 11.01. Applicability of Article.......................................65
SECTION 11.02. Satisfaction and Discharge of Indenture: Defeasance............65
SECTION 11.03. Conditions of Defeasance.......................................66
SECTION 11.04. Application of Trust Money.....................................67
SECTION 11.05. Repayment to Company...........................................68
SECTION 11.06. Indemnity for U.S. Government Obligations......................68
SECTION 11.07. Reinstatement..................................................68
ARTICLE XII - Subordination of Debt Securities............................................68
SECTION 12.01. Applicability of Article; Agreement To Subordinate.............68
SECTION 12.02. Liquidation, Dissolution, Bankruptcy...........................68
SECTION 12.03. Default on Senior Indebtedness.................................69
SECTION 12.04. Acceleration of Payment of Debt Securities.....................70
SECTION 12.05. When Distribution Must Be Paid Over............................70
SECTION 12.06. Subrogation....................................................70
SECTION 12.07. Relative Rights................................................71
SECTION 12.08. Subordination May Not Be Impaired by Company...................71
SECTION 12.09. Rights of Trustee and Paying Agent.............................71
SECTION 12.10. Distribution or Notice to Representative.......................71
SECTION 12.11. Article XII Not to Prevent Defaults or Limit Right to
Accelerate..................................................71
SECTION 12.12. Trust Moneys Not Subordinated..................................72
SECTION 12.13. Trustee Entitled to Rely.......................................72
SECTION 12.14. Trustee to Effectuate Subordination............................72
SECTION 12.15. Trustee Not Fiduciary for Holders of Senior Indebtedness.......73
SECTION 12.16. Reliance by Holders of Senior Indebtedness on
Subordination Provisions....................................73
ARTICLE XIII - Miscellaneous Provisions...................................................73
SECTION 13.01. Successors and Assigns of Company Bound by Indenture...........73
SECTION 13.02. Acts of Board, Committee or Officer of Successor
Company Valid...............................................73
SECTION 13.03. Required Notices or Demands....................................73
SECTION 13.04. Indenture and Debt Securities to Be Construed in
Accordance with the Laws of the State of New York...........74
SECTION 13.05. Officers' Certificate and Opinion of Counsel to Be
Furnished upon Application or Demand by the Company.........74
SECTION 13.06. Payments Due on Legal Holidays.................................75
SECTION 13.07. Provisions Required by Trust Indenture Act to Control..........75
SECTION 13.08. Computation of Interest on Debt Securities.....................75
SECTION 13.09. Rules by Trustee, Paying Agent and Registrar...................75
SECTION 13.10. No Recourse Against Others.....................................75
SECTION 13.11. Severability...................................................76
SECTION 13.12. Effect of Headings.............................................76
SECTION 13.13. Indenture May Be Executed in Counterparts......................76
CROSS REFERENCE SHEET*
Between the provisions of Trust Indenture Act of 1939, as amended, and the
Indenture to be dated as of [ ], 200[ ], between Denbury Resources, Inc. and
[ ], as Trustee:
Section of the Act Section of Indenture
310(a)(1) 7.08 and 7.09
310(a)(2) and (5) 7.10
310(a)(3) and (4) Inapplicable
310(b) 7.10
310(c) Inapplicable
311(a) and (b) 7.11
311(c) Inapplicable
312(a) 5.01
312(b) and (c) 5.02
313 5.04
314(a) 4.05 and 5.03
314(b) Inapplicable
314(c) 13.05
314(d) Inapplicable
314(e) 13.05
314(f) Inapplicable
315(a), (c) and (d) 7.01
315(b) 6.07
315(e) 6.08
316(a)(1) 6.06
316(a)(2) Not required
316(b) 6.04
316(c) 5.05
317(a) 6.02
317(b) 4.04
318(a) 13.07
*This Cross Reference Sheet is not part of the Indenture
INDENTURE dated as of [ ], [ ], between Denbury Resources Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(hereinafter sometimes called the "Company"), and [ ], a [ ] banking association
(hereinafter sometimes called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes, bonds or other evidences of indebtedness to be issued in one or more
series unlimited as to principal amount (herein called the "Debt Securities"),
as in this Indenture provided.
All things necessary to make this Indenture a valid agreement to the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
That in order to declare the terms and conditions upon which the Debt
Securities are authenticated, issued and delivered, and in consideration of the
premises, and of the purchase and acceptance of the Debt Securities by the
holders thereof, the Company and the Trustee covenant and agree with each other,
for the benefit of the respective Holders from time to time of the Debt
Securities or any series thereof, as follows:
ARTICLE I
Definitions
SECTION 1.01. Certain Terms Defined. The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any Indenture supplemental
hereto shall have the respective meanings specified in this Section 1.01. All
other terms used in this Indenture which are defined in the Trust Indenture Act
or which are by reference therein defined in the Securities Act (except as
herein otherwise expressly provided or unless the context otherwise requires),
shall have the meanings assigned to such terms in the Trust Indenture Act and in
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the Securities Act as in force as of the date of original execution of this
Indenture.
"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 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.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in such city or cities specified pursuant to Section 2.03
with respect to the Debt Securities of any series. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any business day in such city.
"Bank Indebtedness" means any and all amounts payable under or in respect
of (i) the Credit Agreement, as supplemented, amended, modified, refinanced or
replaced at any time from time to time, and (ii) any lines of credit and letters
of credit of the Company, in each case, including principal, premium (if any),
interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not a claim
for post-filing interest is allowed in such proceedings), fees, charges,
expenses, reimbursement obligations, guarantees and all other amounts payable
thereunder or in respect thereof.
"Banks" has the meaning specified in the Credit Agreement.
"Board of Directors" means either the Board of Directors of the Company or
any duly authorized committee or subcommittee of such Board, except as the
context may otherwise require.
"business day" means, when used with respect to any Place of Payment
specified pursuant to Section 2.03, any day that is not a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies in
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such Place of Payment are authorized or obligated by law to close, except as
otherwise specified pursuant to Section 2.03.
"Capitalized Lease Obligation" means an obligation that is required to be
classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP; and the amount of Indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such lease prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" of any Person means any and all shares, interests, rights
to purchase, warrants, options, participations or other equivalents of or
interests (including partnership interests) in (however designated) equity of
such Person, including any Preferred Stock, but excluding any debt securities
convertible into such equity.
"Commodity Price Protection Agreement" means, in respect of any Person, any
forward contract, commodity swap agreement, commodity option agreement or other
similar agreement or arrangement designed to protect such Person against
fluctuations in commodity prices.
"Common Stock" means the common stock ($0.001 par value), of the Company,
which stock is currently listed on the New York Stock Exchange and The Toronto
Stock Exchange.
"Company" means Denbury Resources Inc., a Delaware corporation, and,
subject to the provisions of Article X, shall also include its successors and
assigns.
"Company Order" means a written order of the Company, signed by its
Chairman of the Board, President or any Vice President and by its Treasurer,
Secretary, any Assistant Treasurer or any Assistant Secretary.
"corporate trust office of the Trustee" or other similar term means the
office of the Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered in the United States
of America, except that with respect to the presentation of Debt Securities for
payment or for registration of transfer and exchange, such term shall also mean
the office of the Trustee or the Trustee's agent in the Borough of Manhattan,
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the City and State of New York, at which at any particular time its corporate
agency business shall be conducted.
"Credit Agreement" means the Second Amended Credit Agreement dated October
13, 2000 among the Company, the Banks party thereto, and Bank of America N.A.,
as administrative agent, as supplemented, amended, modified, refinanced or
replaced at any time from time to time.
"Currency" means Dollars or Foreign Currency.
"Currency Exchange Protection Agreement" means, in respect of any Person,
any foreign exchange contract, currency swap agreement, currency option or other
similar agreement or arrangement designed to protect such Person against
fluctuations in currency exchange rates.
"Debt Security" or "Debt Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any debt security or debt
securities, as the case may be, of any series authenticated and delivered under
this Indenture.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Depositary" means, unless otherwise specified by the Company pursuant to
either Section 2.03 or 2.15, with respect to registered Debt Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, The Depository Trust Company, New York, New York, or any successor
thereto registered as a clearing agency under the Exchange Act or other
applicable statute or regulations.
"Designated Senior Indebtedness" means (i) the Bank Indebtedness and (ii)
any other Senior Indebtedness of the Company.
"Disqualified Stock" of a Person means Redeemable Stock of such Person as
to which the maturity, mandatory redemption, conversion or exchange or
redemption at the option of the holder thereof occurs, or may occur, on or prior
to the Stated Maturity of the Debt Securities.
"Dollar" or "$" means such currency of the United States as at the time of
payment is legal tender for the payment of public and private debts.
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"Dollar Equivalent" means, with respect to any monetary amount in a Foreign
Currency, at any time for the determination thereof, the amount of Dollars
obtained by converting such Foreign Currency involved in such computation into
Dollars at the spot rate for the purchase of Dollars with the applicable Foreign
Currency as quoted by Citibank, N.A. (unless another comparable financial
institution is designated by the Company) in New York, New York at approximately
11:00 a.m. (New York time) on the date two business days prior to such
determination.
"Event of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Floating Rate Security" means a Debt Security that provides for the
payment of interest at a variable rate determined periodically by reference to
an interest rate index specified pursuant to Section 2.03.
"Foreign Currency" means a currency issued or adopted by the government of
any country other than the United States or a composite currency the value of
which is determined by reference to the values of the currencies of any group of
countries.
"GAAP" means generally accepted accounting principles in the United States
as in effect as of the date on which the Debt Securities of the applicable
series are issued, including those set forth in the opinions and pronouncements
of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as approved by
a significant segment of the accounting profession. All ratios and computations
based on GAAP contained in this Indenture shall be computed in conformity with
GAAP consistently applied.
"Global Security" means with respect to any series of Debt Securities
issued hereunder, a Debt Security which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction, all in accordance with this Indenture and any
Indentures supplemental hereto, or resolution of the Board of Directors and set
forth in an Officers' Certificate, which shall be registered in the name of the
Depositary or its nominee and which shall represent, and shall be denominated in
6
an amount equal to the aggregate principal amount of, all the Outstanding Debt
Securities of such series or any portion thereof, in either case having the same
terms, including, without limitation, the same original issue date, date or
dates on which principal is due and interest rate or method of determining
interest.
"Government Contract Lien" means any Lien required by any contract,
statute, regulation or order in order to permit the Company or any of its
Subsidiaries to perform any contract or subcontract made by it with or at the
request of the United States or any State thereof or any department, agency or
instrumentality of either or to secure partial, progress, advance or other
payments by the Company or any of its Subsidiaries to the United States or any
State thereof or any department agency or instrumentality of either pursuant to
the provisions of any contract, statute, regulation or order.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Indebtedness or other obligation of any
other Person and any obligation, direct or indirect, contingent or otherwise, of
such Person (i) to purchase or pay (or advance or supply funds for the purchase
or payment of) such Indebtedness or other obligation of such other Person or
(ii) entered into for purposes of assuring in any other manner the obligee of
such Indebtedness or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part); provided,
however, that the term "Guarantee" shall not include endorsements for collection
or deposit in the ordinary course of business. The term "Guarantee" used as a
verb has a corresponding meaning.
"Hedging Obligations" of any Person means the obligations of such Person
pursuant to any Interest Rate Protection Agreement, Currency Exchange Protection
Agreement or Commodity Price Protection Agreement or other similar agreement.
"Holder," "Holder of Debt Securities" or other similar terms mean, with
respect to a Registered Security, the Registered Holder.
"Incur" means issue, assume, Guarantee, incur or otherwise become liable
for; provided, however, that any Indebtedness or Capital Stock of a Person
existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be incurred by such
Subsidiary at the time it becomes a Subsidiary. The terms "Incurred",
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"Incurrence" and "Incurring" shall each have a correlative meaning.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication),
(i) the principal of Indebtedness of such Person for borrowed money;
(ii) the principal of obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(iii) all Capitalized Lease Obligations of such Person;
(iv) all obligations of such Person to pay the deferred and unpaid purchase
price of property or services (except Trade Payables);
(v) all obligations of such Person in respect of letters of credit,
banker's acceptances or other similar instruments or credit transactions
(including reimbursement obligations with respect thereto), other than
obligations with respect to letters of credit securing obligations (other than
obligations described in (i) through (iv) above) entered into in the ordinary
course of business of such Person to the extent such letters of credit are not
drawn upon or, if and to the extent drawn upon, such drawing is reimbursed no
later than the third business day following receipt by such Person of a demand
for reimbursement following payment on the letter of credit;
(vi) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock (but
excluding, in each case, any accrued dividends);
(vii) all Indebtedness of other Persons secured by a Lien on any asset of
such Person, whether or not such Indebtedness is assumed by such Person;
provided, however, that the amount of such Indebtedness shall be the lesser of
(A) the fair market value of such asset at such date of determination and (B)
the amount of such Indebtedness of such other Persons; and
(viii) all Indebtedness of other Persons to the extent Guaranteed by such
Person.
For purposes of this definition, the maximum fixed redemption, repayment or
repurchase price of any Disqualified Stock or Preferred Stock that does not have
8
a fixed redemption, repayment or repurchase price shall be calculated in
accordance with the terms of such Stock as if such Stock were redeemed, repaid
or repurchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture.
"Indenture" means this instrument as originally executed, or, if amended or
supplemented as herein provided, as so amended or supplemented and shall include
the form and terms of particular series of Debt Securities as contemplated
hereunder, whether or not a supplemental Indenture is entered into with respect
thereto.
"Interest Rate Protection Agreement" means, in respect of any Person, any
interest rate swap agreement, interest rate option agreement, interest rate cap
agreement, interest rate collar agreement, interest rate floor agreement or
other similar agreement or arrangement designed to protect such Person against
fluctuations in interest rates.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including any conditional sale or other title retention
agreement or lease in the nature thereof).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or any Vice President and by the Treasurer, chief
accounting officer, the Secretary or any Assistant Treasurer or Assistant
Secretary of the Company. Each such certificate shall include the statements
provided for in Section 13.05, if applicable.
"Opinion of Counsel" means an opinion in writing signed by legal counsel
for the Company (which counsel may be an employee of the Company), or outside
counsel for the Company. Each such opinion shall include the statements provided
for in Section 13.05, if applicable.
"Original Issue Discount Debt Security" means any Debt Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration or acceleration of the maturity thereof pursuant to
Section 6.01.
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"Outstanding" when used with respect to any series of Debt Securities,
means, as of the date of determination, all Debt Securities of that series
theretofore authenticated and delivered under this Indenture, except:
(i) Debt Securities of that series theretofore canceled by the Trustee or
delivered to the Trustee for cancelation;
(ii) Debt Securities of that series for whose payment or redemption money
in the necessary amount has been theretofore deposited with the Trustee or any
paying agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own paying agent) for the
holders of such Debt Securities; provided, that, if such Debt Securities are to
be redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made; and
(iii) Debt Securities of that series which have been paid pursuant to
Section 2.09 or in exchange for or in lieu of which other Debt Securities have
been authenticated and delivered pursuant to this Indenture, other than any such
Debt Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Debt Securities are held by a bona
fide purchaser in whose hands such Debt Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Debt Securities of any series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Debt Securities owned by the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Debt Securities which
the Trustee knows to be so owned shall be so disregarded. Debt 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 Debt Securities and that the pledgee is not the
Company or any other obligor upon the Debt Securities or an Affiliate of the
Company or of such other obligor. In determining whether the Holders of the
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requisite principal amount of outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of an original Issue Discount Debt Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
a declaration of acceleration of the maturity thereof pursuant to Section 6.01.
In determining whether the Holders of the requisite principal amount of the
Outstanding Debt Securities of any series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of a Debt Security denominated in one or more foreign currencies or
currency units that shall be deemed to be Outstanding for such purposes shall be
the Dollar Equivalent, determined in the manner provided as contemplated by
Section 2.03 on the date of original issuance of such Debt Security, of the
principal amount (or, in the case of any Original Issue Discount Security, the
Dollar Equivalent on the date of original issuance of such Security of the
amount determined as provided in the preceding sentence above) of such Debt
Security.
"pari passu", as applied to the ranking of any Indebtedness of a Person in
relation to other Indebtedness of such Person, means that each such Indebtedness
either (i) is not subordinate in right of payment to any Indebtedness or (ii) is
subordinate in right of payment to the same Indebtedness as is the other, and is
so subordinate to the same extent, and is not subordinate in right of payment to
each other or to any Indebtedness as to which the other is not so subordinate.
"Permitted Liens" means, with respect to any Person, (a) pledges or
deposits by such Person under worker's compensation laws, unemployment insurance
laws, social security laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the payment of
Indebtedness) or leases to which such Person is a party, or deposits to secure
public or statutory obligations of such Person or deposits of cash or bonds to
secure performance, surety or appeal bonds to which such Person is a party or
which are otherwise required of such Person, or deposits as security for
contested taxes or import duties or for the payment of rent or other obligations
of like nature, in each case Incurred in the ordinary course of business; (b)
Liens imposed by law, such as carriers', warehousemen's, laborers',
materialmen's, landlords', vendors', workmen's, operators', factors and
mechanics liens, in each case for sums not yet due or being contested in good
11
faith by appropriate proceedings; (c) Liens for taxes, assessments and other
governmental charges or levies not yet delinquent or which are being contested
in good faith by appropriate proceedings; (d) survey exceptions, encumbrances,
easements or reservations of or with respect to, or rights of others for or with
respect to, licenses, rights-of-way, sewers, electric and other utility lines
and usages, telegraph and telephone lines, pipelines, surface use, operation of
equipment, permits, servitudes and other similar matters, or zoning or other
restrictions as to the use of real property or Liens incidental to the conduct
of the business of such Person or to the ownership of its properties which were
not incurred in connection with Indebtedness and which do not in the aggregate
materially adversely affect the value of said properties or materially impair
their use in the operation of the business of such Person; (e) Liens existing on
or provided for under the terms of agreements existing on the Issue Date
(including, without limitation, under the Credit Agreement); (f) Liens on
property at the time the Company or any of its Subsidiaries acquired the
property or the entity owning such property, including any acquisition by means
of a merger or consolidation with or into the Company; provided, however, that
any such Lien may not extend to any other property owned by the Company or any
of its Subsidiaries, (g) Liens securing a Hedging Obligation so long as such
Hedging Obligation is of the type customarily entered into for the purpose of
limiting risk; (h) Purchase Money Liens; (i) Liens securing only Indebtedness of
a Subsidiary of the Company to the Company or one or more wholly owned
Subsidiaries of the Company; (j) Liens on any property to secure Indebtedness
incurred in connection with the construction, installation or financing of
pollution control or abatement facilities or other forms of industrial revenue
bond financing or Indebtedness issued or Guaranteed by the United States, any
state or any department, agency or instrumentality thereof; (k) Government
Contract Liens; (l) Liens securing Indebtedness of joint ventures in which the
Company or a Subsidiary has an interest to the extent such Liens are on property
or assets of, such joint ventures; (m) Liens resulting from the deposit of funds
or evidences of Indebtedness in trust for the purpose of defeasing Indebtedness
of the Company or any of its Subsidiaries; (n) legal or equitable encumbrances
deemed to exist by reason of negative pledges or the existence of any litigation
or other legal proceeding and any related lis pendens filing (excluding any
attachment prior to judgment lien or attachment lien in aid of execution on a
judgment); (o) any attachment Lien being contested in good faith and by
proceedings promptly initiated and diligently conducted, unless the attachment
giving rise thereto will not, within sixty days after the entry thereof, have
12
been discharged or fully bonded or will not have been discharged within sixty
days after the termination of any such bond; (p) any judgment Lien, unless the
judgment it secures will not, within sixty days after the entry thereof, have
been discharged or execution thereof stayed pending appeal, or will not have
been discharged within sixty days after the expiration of any such stay; (q)
Liens to banks arising from the issuance of letters of credit issued by such
banks ("issuing banks") on the following: (i) any and all shipping documents,
warehouse receipts, policies or certificates of insurance and other document
accompanying or relative to drafts drawn under any credit, and any draft drawn
thereunder (whether or not such documents, goods or other property be released
to or upon the order of the Company or any Subsidiary under a security agreement
or trust or bailee receipt or otherwise), and the proceeds of each and all of
the foregoing; (ii) the balance of every deposit account, now or at the time
hereafter existing, of the Company or any Subsidiary with the issuing banks, and
any other claims of the Company or any Subsidiary against the issuing banks; and
all property claims and demands and all rights and interests therein of the
Company or any Subsidiary and all evidences thereof and all proceeds thereof
which have been or at any time will be delivered to or otherwise come into the
issuing bank's possession, custody or control, or into the possession, custody
or control of any bailee for the issuing bank or of any of its agents or
correspondents for the account of the issuing bank, for any purpose, whether or
not the express purpose of being used by the issuing bank as collateral security
or for the safekeeping or for any other or different purpose, the issuing bank
being deemed to have possession or control of all of such property actually in
transit to or from or set apart for the issuing bank, any bailee for the issuing
bank or any of its correspondents for other acting in its behalf, it being
understood that the receipt at any time by the issuing bank, or any of its
bailees, agents or correspondents, or other security, of whatever nature,
including cash, will not be deemed a waiver of any of the issuing bank's rights
or power hereunder; (iii) all property shipped under or pursuant to or in
connection with any credit or drafts drawn thereunder or in any way related
thereto, and all proceeds thereof; (iv) all additions to and substitutions for
any of the property enumerated above in this subsection; (r) rights of a common
owner of any interest in property held by such Person; (s) any defects,
irregularities or deficiencies in title to easements, rights-of-way or other
properties which do not in the aggregate materially adversely affect the value
of such properties or materially impair their use in the operation of the
business of such Person; and (t) Liens to secure any refinancing, refunding,
13
extension, renewal or replacement (or successive refinancings, refundings,
extensions, renewals or replacements), as a whole, or in part, of any
indebtedness secured by any Lien referred to in the foregoing clauses (e)
through (l); provided, however, that (i) such new Lien shall be limited to all
or part of the same property that secured the original Lien (plus improvements
on such property) and (ii) the Indebtedness secured by such Lien at such time is
not increased to any amount greater than the sum of (A) the outstanding
principal amount or, if greater, committed amount of the indebtedness described
under clauses (e) through (l) at the time the original Lien became a Permitted
Lien under this Indenture and (B) an amount necessary to pay any fees and
expenses, including premiums, related to such refinancing, refunding, extension,
renewal or replacement.
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" means, when used with respect to the Debt Securities of
any series, the place or places where the principal of, and premium, if any, and
interest on, the Debt Securities of that series are payable as specified
pursuant to Section 2.03.
"Preferred Stock" as applied to the Capital Stock of any corporation, means
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such corporation, over
shares of Capital Stock of any other class of such corporation.
"Purchase Money Lien" means a Lien on property securing Indebtedness
Incurred by the Company or any of its Subsidiaries to provide funds for all or
any portion of the cost of acquiring, constructing, altering, expanding,
improving or repairing such property or assets used in connection with such
property.
14
"Redeemable Stock" means, with respect to any Person, any Capital Stock
which by its terms (or by the terms of any security into which it is convertible
or for which it is exchangeable) or upon the happening of any event (i) matures
or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise,
(ii) is convertible or exchangeable for Indebtedness (other than Preferred
Stock) or Disqualified Stock or (iii) is redeemable at the option of the holder
thereof, in whole or in part.
"Registered Holder" means the Person in whose name a Registered Security is
registered in the Debt Security Register (as defined in Section 2.07(a)).
"Registered Security" means any Debt Security registered as to principal
and interest in the Debt Security Register (as defined in Section 2.07(a)).
"Registrar" has the meaning set forth in Section 2.07(a).
"Representative" means the trustee, agent or representative (if any) for an
issue of Indebtedness.
"responsible officer" when used with respect to the Trustee, means any
officer within the Trustee, including any Vice President, any Second Vice
President, any trust officer or any other officer of the Trustee performing
functions similar to those performed by the persons who at the time shall be
such officers, and any other officer of the Trustee to whom corporate trust
matters are referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means a Subsidiary of the Company which shall at
the time, directly or indirectly, through one or more Subsidiaries or in
combination with one or more Subsidiaries or the Company, owns or leases a
Principal Property.
"Secured Indebtedness" means any Indebtedness of the Company secured by a
Lien.
"Securities Act" means the Securities Act of 1933, as amended.
"Senior Indebtedness" means, as to any series of Debt Securities
subordinated pursuant to the provisions of Article XII, the Indebtedness of the
Company identified as Senior Indebtedness in the resolution of the Board of
Directors and accompanying Officers' Certificate or supplemental Indenture
setting forth the terms, including as to subordination, of such series.
15
"Stated Maturity" means, with respect to any security, the date specified
in such security as the fixed date on which the payment of principal of such
security is due and payable, including pursuant to any mandatory redemption
provision (but excluding any provision providing for the repurchase of such
security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has
occurred).
"Subsidiary" of any Person means any corporation, association, partnership
or other business entity of which more than 50% of the total voting power of
shares of Capital Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by (i) such Person,
(ii) such Person and one or more Subsidiaries of such Person or (iii) one or
more Subsidiaries of such Person.
"Temporary Cash Investments" means any of the following: (i) investments in
U.S. Government Obligations maturing within 90 days of the date of acquisition
thereof, (ii) investments in time deposit accounts, certificates of deposit and
money market deposits maturing within 90 days of the date of acquisition thereof
issued by a bank or trust company which is organized under the laws of the
United States, any State thereof or any foreign country recognized by the United
States having capital, surplus and undivided profits aggregating in excess of
$500,000,000 (or the Dollar Equivalent thereof) and whose long-term debt is
rated "A" or higher according to Moody's Investors Service, Inc. (or such
similar equivalent rating by at least one "nationally recognized statistical
rating organization" (as defined in Rule 436 under the Securities Act)), (iii)
repurchase obligations with a term of not more than 7 days for underlying
securities of the types described in clause (i) above entered into with a bank
meeting the qualifications described in clause (ii) above and (iv) investments
in commercial paper, maturing not more than 90 days after the date of
acquisition, issued by a corporation (other than an Affiliate of the Company)
organized and in existence under the laws of the United States or any foreign
country recognized by the United States with a rating at the time as of which
any investment therein is made of "P-1" (or higher) according to Moody's
Investors Service, Inc. or "A-1" (or higher) according to Standard and Poor's
Corporation.
"Trade Payables" means, with respect to any Person, any accounts payable or
any Indebtedness or monetary obligation to trade creditors created, assumed or
16
Guaranteed by such Person arising in the ordinary course of business of such
Person in connection with the acquisition of goods or services.
"Trustee" initially means [ ] and any other Person or Persons appointed as
such from time to time pursuant to Section 7.08, and, subject to the provisions
of Article VII, includes its or their successors and assigns. If at any time
there is more than one such Person, "Trustee" as used with respect to the Debt
Securities of any series shall mean the Trustee with respect to the Debt
Securities of that series.
"Trust Indenture Act" (except as herein otherwise expressly provided) means
the Trust Indenture Act of 1939 as in force at the date of this indenture as
originally executed and, to the extent required by law, as amended.
"United States" means the United States of America (including the States
and the District of Columbia), its territories, its possessions and other areas
subject to its jurisdiction.
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (y) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case, are not callable or redeemable at the
option of the issuer thereof.
"Yield to Maturity" means the yield to maturity calculated at the time of
issuance of a series of Debt Securities, or, if applicable, at the most recent
redetermination of interest on such series and calculated in accordance with
accepted financial practice.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the Trust Indenture Act
which are incorporated by reference in and made a part of this indenture. The
following Trust Indenture Act terms have the following meanings:
"indenture securities" means the Debt Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
17
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the Debt Securities.
All other Trust Indenture Act terms used in this Indenture that are defined
by the Trust indenture Act, reference to another statute or defined by rules of
the Securities and Exchange Commission have the meanings assigned to them by
such definitions.
SECTION 1.03. Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) if the applicable series of Debt Securities are
subordinated pursuant to Article XII, unsecured indebtedness shall not
be deemed to be subordinate or junior to Secured Indebtedness merely by
virtue of its nature as unsecured indebtedness;
(7) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP; and
(8) the principal amount of any Preferred Stock shall be the
greater of (i) the maximum liquidation value of such Preferred Stock or
(ii) the maximum mandatory redemption or mandatory repurchase price
with respect to such Preferred Stock.
18
ARTICLE II
Debt Securities
SECTION 2.01. Forms Generally. The Debt Securities of each series shall be
in substantially the form established without the approval of any Holder by or
pursuant to a resolution of the Board of Directors or in one or more Indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as the Company may deem
appropriate (and, if not contained in a supplemental Indenture entered into in
accordance with Article IX, as are not prohibited by the provisions of this
Indenture) or as may be required or appropriate to comply with any law or with
any rules made pursuant thereto or with any rules of any securities exchange on
which such series of Debt Securities may be listed, or to conform to general
usage, or as may, consistently herewith, be determined by the officers executing
such Debt Securities as evidenced by their execution of the Debt Securities.
The definitive Debt Securities of each series shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Debt Securities,
as evidenced by their execution of such Debt Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication. The
Trustee's Certificate of Authentication on all Debt Securities authenticated by
the Trustee shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
---------------------------
As Trustee
By
-------------------------
Authorized Signature
SECTION 2.03. Principal Amount; Issuable in Series. The aggregate principal
amount of Debt Securities which may be issued, executed, authenticated,
delivered and outstanding under this Indenture is unlimited.
19
The Debt Securities may be issued in one or more series. There shall be
established, without the approval of any Holders, in or pursuant to a resolution
of the Board of Directors and set forth in an Officers' Certificate, or
established in one or more Indentures supplemental hereto, prior to the issuance
of Debt Securities of any series any or all of the following:
(1) the title of the Debt Securities of the series (which
shall distinguish the Debt Securities of the series from all other Debt
Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu of,
other Debt Securities of the series pursuant to this Article II);
(3) the date or dates on which the principal and premium, if
any, of the Debt Securities of the series are payable;
(4) the rate or rates (which may be fixed or variable) at
which the Debt Securities of the series shall bear interest, if any, or
the method of determining such rate or rates, the date or dates from
which such interest shall accrue, the interest payment dates on which
such interest shall be payable, or the method by which such date will
be determined, in the case of Registered Securities, the record dates
for the determination of Holders thereof to whom such interest is
payable; and the basis upon which interest will be calculated if other
than that of a 360-day year of twelve thirty-day months;
(5) the Place or Places of Payment, if any, in addition to or
instead of the corporate trust office of the Trustee where the
principal of, and interest on, Debt Securities of the series shall be
payable;
(6) the price or prices at which, the period or periods within
which and the terms and conditions upon which Debt Securities of the
series may be redeemed, in whole or in part, at the option of the
Company or otherwise;
20
(7) the obligation, if any, of the Company to redeem, purchase
or repay Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the
price or prices to which and the period or periods within which and the
terms and conditions upon which Debt Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligations;
(8) the terms, if any, upon which the Debt Securities of the
series may be convertible into or exchanged for Common Stock, Preferred
Stock (which may be represented by depositary shares), other Debt
Securities or warrants for Common Stock, Preferred Stock or
Indebtedness or other securities of any kind of the Company or any
other obligor or issuer and the terms and conditions upon which such
conversion or exchange shall be effected, including the initial
conversion or exchange price or rate, the conversion or exchange period
and any other provision in addition to or in lieu of those described
herein;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Debt Securities of the
series shall be issuable;
(10) if the amount of principal of or any premium or interest
on Debt Securities of the series may be determined with reference to an
index or pursuant to a formula, the manner in which such amounts will
be determined;
(11) if the principal amount payable at the Stated Maturity of
Debt Securities of the series will not be determinable as of any one or
more dates prior to such Stated Maturity, the amount which will be
deemed to be such principal amount as of any such date for any purpose,
including the principal amount thereof which will be due and payable
upon any maturity other than the Stated Maturity or which will be
deemed to be Outstanding as of any such date (or, in any such case, the
manner in which such deemed principal amount is to be determined); and
the manner of determining the equivalent thereof in the currency of the
United States of America for purposes of the definition of Dollar
Equivalent;
(12) any changes or additions to Article XI, including the
addition of additional covenants that may be subject to the covenant
defeasance option pursuant to Section 11.02(b)(ii);
21
(13) if other than such coin or Currency of the United States
as at the time of payment is legal tender for payment of public and
private debts, the coin or Currency or Currencies or units of two or
more Currencies in which payment of the principal of and premium, if
any, and interest on, Debt Securities of the series shall be payable;
(14) if other than the principal amount thereof, the portion
of the principal amount of Debt Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.01 or provable in bankruptcy pursuant to Section
6.02;
(15) the terms, if any, of the transfer, mortgage, pledge or
assignment as security for the Debt Securities of the series of any
properties, assets, moneys, proceeds, securities or other collateral,
including whether certain provisions of the Trust Indenture Act are
applicable and any corresponding changes to provisions of this
Indenture as currently in effect;
(16) any addition to or change in the Events of Default with
respect to the Debt Securities of the series and any change in the
right of the Trustee or the Holders to declare the principal of and
interest on, such Debt Securities due and payable;
(17) if the Debt Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities, the
terms and conditions, if any, upon which such Global Security or
Securities may be exchanged in whole or in part for other individual
Debt Securities in definitive registered form; and the Depositary for
such Global Security or Securities and the form of any legend or
legends to be borne by any such Global Security or Securities in
addition to or in lieu of the legend referred to in Section 2.15;
(18) any trustees, authenticating or paying agents, transfer
agents or registrars;
(19) the applicability of, and any addition to or change in
the covenants and definitions currently set forth in this Indenture or
in the terms currently set forth in Article X, including conditioning
any merger, conveyance, transfer or lease permitted by Article X upon
the satisfaction of an Indebtedness coverage standard by the Company
(as defined in Article X);
22
(20) the terms, if any, of any Guarantee of the payment of
principal of, and premium, if any, and interest on, Debt Securities of
the series and any corresponding changes to the provisions of this
Indenture as currently in effect;
(21) the subordination, if any, of the Debt Securities of the
series pursuant to Article XII and any changes or additions to Article
XII;
(22) with regard to Debt Securities of the series that do not
bear interest, the dates for certain required reports to the Trustee;
and
(23) any other terms of the Debt Securities of the series
(which terms shall not be prohibited by the provisions of this
Indenture).
All Debt Securities of any one series appertaining thereto shall be
substantially identical except as to denomination and except as may
otherwise be provided in or pursuant to such resolution of the Board of
Directors and as set forth in such Officers' Certificate or in any such
Indenture supplemental hereto.
SECTION 2.04. Execution of Debt Securities. The Debt Securities shall
be signed on behalf of the Company by its Chairman of the Board, its Vice
Chairman, its President or a Vice President and by its Secretary, an
Assistant Secretary, a Treasurer or an Assistant Treasurer. Such signatures
upon the Debt Securities may be the manual or facsimile signatures of the
present or any future such authorized officers and may be imprinted or
otherwise reproduced on the Debt Securities. The seal of the Company, if
any, may be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Debt Securities.
Only such Debt Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, signed
manually by the Trustee, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by
the Trustee upon any Debt Security executed by the Company shall be
conclusive evidence that the Debt Security so authenticated has been duly
authenticated and delivered hereunder.
23
In case any officer of the Company who shall have signed any of the
Debt Securities shall cease to be such officer before the Debt Securities
so signed shall have been authenticated and delivered by the Trustee, or
disposed of by the Company, such Debt Securities nevertheless may be
authenticated and delivered or disposed of as though the Person who signed
such Debt Securities had not ceased to be such officer of the Company; and
any Debt Security may be signed on behalf of the Company by such Persons
as, at the actual date of the execution of such Debt Security, shall be the
proper officers of the Company, although at the date of such Debt Security
or of the execution of this Indenture any such Person was not such officer.
SECTION 2.05. Authentication and Delivery of Debt Securities. At any
time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Debt Securities of any series executed
by the Company to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Debt Securities to or upon a
Company Order. In authenticating such Debt Securities and accepting the
additional responsibilities under this Indenture in relation to such Debt
Securities, the Trustee shall be entitled to receive, and (subject to
Section 7.01.) shall be fully protected in relying upon:
(1) a copy of any resolution or resolutions of the Board of
Directors, certified by the Secretary or Assistant Secretary of the
Company, authorizing the terms of issuance of any series of Debt
Securities;
(2) an executed supplemental Indenture, if any;
(3) an Officers' Certificate; and
(4) an Opinion of Counsel prepared in accordance with Section
13.05 substantially to the effect that:
(a) the form of such Debt Securities has been
established by or pursuant to a resolution of the Board of
Directors or by a supplemental Indenture as permitted by
Section 2.01 in conformity with the provisions of this
Indenture;
(b) the terms of such Debt Securities have been
established by or pursuant to a resolution of the Board of
Directors or by a supplemental Indenture as permitted by
Section 2.03 in conformity with the provisions of this
Indenture;
24
(c) such Debt Securities, when authenticated and
delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with
their terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may
be limited by equitable principles of general applicability;
Such Opinion of Counsel need express no opinion as to whether a court
in the United States would render a money judgment in a currency other than
that of the United States.
The Trustee shall have the right to decline to authenticate and
deliver any Debt Securities under this Section 2.05 if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken
or if the Trustee in good faith by its board of directors or trustees,
executive committee or a trust committee of directors, trustees or vice
presidents shall determine that such action would expose the Trustee to
personal liability to existing Holders.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Debt Securities of any series. Unless
limited by the terms of such appointment, an authenticating agent may
authenticate Debt Securities whenever the Trustee may do so. Each reference
in this Indenture to authentication by the Trustee includes authentication
by such agent. An authenticating agent has the same rights as any
Registrar, paying agent or agent for service of notices and demands.
Unless otherwise provided in the form of Debt Security for any series,
each Debt Security shall be dated the date of its authentication.
SECTION 2.06. Denomination of Debt Securities. Unless otherwise
provided in the form of Debt Security for any series, the Debt Securities
of each series shall be issuable only as Registered Securities in such
denominations as shall be specified or contemplated by Section 2.03. In the
absence of any such specification with respect to the Debt Securities of
any series, the Debt Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
25
SECTION 2.07. Registration of Transfer and Exchange. (a) The Company
shall keep or cause to be kept a register for each series of Registered
Securities issued hereunder (hereinafter collectively referred to as the "Debt
Security Register"), in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and the transfer of Registered Securities as in this Article II
provided. At all reasonable times the Debt Security Register shall be open for
inspection by the Trustee. Subject to Section 2.15, upon due presentment for
registration of transfer of any Registered Security at any office or agency to
be maintained by the Company in accordance with the provisions of Section 4.02,
the Company shall execute and the Trustee shall authenticate and deliver in the
name of the transferee or transferees a new Registered Security or Registered
Securities of authorized denominations for a like aggregate principal amount.
Unless and until otherwise determined by the Company by resolution of the
Board of Directors, the register of the Company for the purpose of registration,
exchange or registration of transfer of the Registered Securities shall be kept
at the corporate trust office of the Trustee and, for this purpose, the Trustee
shall be designated "Registrar".
Registered Securities of any series (other than a Global Security) may be
exchanged for a like aggregate principal amount of Registered Securities of the
same series of other authorized denominations. Subject to Section 2.15,
Registered Securities to be exchanged shall be surrendered at the office or
agency to be maintained by the Company as provided in Section 4.02, and the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor the Registered Security or Registered Securities which the Holder
making the exchange shall be entitled to receive.
(b) All Registered Securities presented or surrendered for registration of
transfer, exchange or payment shall (if so required by the Company, the Trustee
or the Registrar) be duly endorsed or be accompanied by a written instrument or
instruments of transfer, in form satisfactory to the Company, the Trustee and
the Registrar, duly executed by the Registered Holder or his attorney duly
authorized in writing.
All Debt Securities issued in exchange for or upon transfer of Debt
Securities shall be the valid obligations of the Company, evidencing the same
26
debt, and entitled to the same benefits under this Indenture as the Debt
Securities surrendered for such exchange or transfer.
No service charge shall be made for any exchange or registration of
transfer of Debt Securities (except as provided by Section 2.09), but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto, other than those
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to the Holders.
The Company shall not be required (a) to issue, register the transfer of or
exchange any Debt Securities for a period of 15 days next preceding any mailing
of notice of redemption of Debt Securities of such series or (b) to register the
transfer of or exchange any Debt Securities selected, called or being called for
redemption.
Prior to the due presentation for registration of transfer of any Debt
Security, the Company, the Trustee, any paying agent or any Registrar may deem
and treat the Person in whose name a Debt Security is registered as the absolute
owner of such Debt Security for the purpose of receiving payment of principal
of, and premium, if any, and interest on, such Debt Security and for all other
purposes whatsoever, whether or not such Debt Security is overdue, and none of
the Company, the Trustee, any paying agent or Registrar shall be affected by
notice to the contrary.
None of the Company, the Trustee, any agent of the Trustee, any paying
agent or any Registrar will have any responsibility or liability for any aspect
of the records relating to, or payments made on account of, beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 2.08. Temporary Debt Securities. Pending the preparation of
definitive Debt Securities of any series, the Company may execute and the
Trustee shall authenticate and deliver temporary Debt Securities (printed,
lithographed, photocopied, typewritten or otherwise produced) of any authorized
denomination, and substantially in the form of the definitive Debt Securities in
lieu of which they are issued, in registered form and with such omissions,
insertions and variations as may be appropriate for temporary Debt Securities,
all as may be determined by the Company with the concurrence of the Trustee.
Temporary Debt Securities may contain such reference to any provisions of this
27
Indenture as may be appropriate. Every temporary Debt Security shall be executed
by the Company and be authenticated by the Trustee upon the same conditions and
in substantially the same manner, and with like effect, as the definitive Debt
Securities.
If temporary Debt Securities of any series are issued, the Company will
cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of such
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series upon surrender of the temporary Debt
Securities of such series at the office or agency of the Company at a Place of
Payment for such series, without charge to the Holder thereof, except as
provided in Section 2.07 in connection with a transfer, and upon surrender for
cancelation of any one or more temporary Debt Securities of any series, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Debt Securities of the same
series of authorized denominations and of like tenor. Until so exchanged,
temporary Debt Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Debt Securities of such series,
except as otherwise specified as contemplated by Section 2.03(17) with respect
to the payment of interest on Global Securities in temporary form.
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Debt Securities represented
thereby pursuant to Section 2.07 or this Section 2.08, the temporary Global
Security shall be endorsed by the Trustee to reflect the reduction of the
principal amount evidenced thereby, whereupon the principal amount of such
temporary Global Security shall be reduced for all purposes by the amount so
exchanged and endorsed.
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities. If (i)
any mutilated Debt Security is surrendered to the Trustee at its corporate trust
office (in the case of Registered Securities) or (ii) the Company and the
Trustee receive evidence to their satisfaction of the destruction, loss or theft
of any Debt Security, and there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each of them and any
paying agent harmless, and neither the Company nor the Trustee receives notice
that such Debt Security has been acquired by a bona fide purchaser, then the
Company shall execute and, upon a Company Order, the Trustee shall authenticate
28
and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost
or stolen Debt Security, a new Debt Security of the same series of like tenor,
form, terms and principal amount, bearing a number not contemporaneously
Outstanding. Upon the issuance of any substituted Debt Security, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses connected
therewith. In case any Debt Security which has matured or is about to mature or
which has been called for redemption shall become mutilated or be destroyed,
lost or stolen, the Company may, instead of issuing a substituted Debt Security,
pay or authorize the payment of the same (without surrender thereof except in
the case of a mutilated Debt Security) if the applicant for such payment shall
furnish the Company and the Trustee with such security or indemnity as either
may require to save it harmless from all risk, however remote, and, in case of
destruction, loss or theft, evidence to the satisfaction of the Company and the
Trustee of the destruction, loss or theft of such Debt Security and of the
ownership thereof.
Every substituted Debt Security of any series issued pursuant to the
provisions of this Section 2.09 by virtue of the fact that any Debt Security is
destroyed, lost or stolen shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security shall be found at any time, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Debt
Securities of that series duly issued hereunder. All Debt Securities shall be
held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Debt 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. Cancelation of Surrendered Debt Securities. All Debt
Securities surrendered for payment, redemption, registration of transfer or
exchange shall, if surrendered to the Company or any paying agent or a
Registrar, be delivered to the Trustee for cancelation by it, or if surrendered
to the Trustee, shall be canceled by it, and no Debt Securities shall be issued
in lieu thereof except as expressly permitted by any of the provisions of this
Indenture. All canceled Debt Securities held by the Trustee shall be destroyed
(subject to the record retention requirements of the Exchange Act) and
29
certification of their destruction delivered to the Company, unless otherwise
directed. On request of the Company, the Trustee shall deliver to the Company
canceled Debt Securities held by the Trustee. If the Company shall acquire any
of the Debt Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented thereby unless and
until the same are delivered or surrendered to the Trustee for cancelation. The
Company may not issue new Debt Securities to replace Debt Securities it has
redeemed, paid or delivered to the Trustee for cancelation.
SECTION 2.11. Provisions of the Indenture and Debt Securities for the Sole
Benefit of the Parties and the Holders. Nothing in this Indenture or in the Debt
Securities, expressed or implied, shall give or be construed to give to any
Person, other than the parties hereto, the Holders or any Registrar or paying
agent, any legal or equitable right, remedy or claim under or in respect of this
Indenture, or under any covenant, condition or provision herein contained; all
its covenants, conditions and provisions being for the sole benefit of the
parties hereto, the Holders and any Registrar and paying agents.
SECTION 2.12. Payment of Interest; Rights Preserved. (a) Interest on any
Registered Security that is payable and is punctually paid or duly provided for
on any interest payment date shall be paid to the Person in whose name such
Registered Security is registered at the close of business on the regular record
date for such interest notwithstanding the cancellation of such Registered
Security upon any transfer or exchange subsequent to the regular record date.
Payment of interest on Registered Securities shall be made at the corporate
trust office of the Trustee (except as otherwise specified pursuant to Section
2.03), or at the option of the Company, by check mailed to the address of the
Person entitled thereto as such address shall appear in the Debt Security
Register or, if provided pursuant to Section 2.03 and in accordance with
arrangements satisfactory to the Trustee, at the option of the Registered Holder
by wire transfer to an account designated by the Registered Holder.
(b) Subject to the foregoing provisions of this Section 2.12 and Section
2.17, each Debt Security of a particular series delivered under this Indenture
upon registration of transfer of or in exchange for or in lieu of any other Debt
Security of the same series shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Debt Security.
30
SECTION 2.13. Securities Denominated in Foreign Currencies. (a) Except as
otherwise specified pursuant to Section 2.03 for Registered Securities of any
series, payment of the principal of, and premium, if any, and interest on,
Registered Securities of such series will be made in Dollars.
(b) For the purposes of calculating the principal amount of Debt Securities
of any series denominated in a Foreign Currency or in units of two or more
Foreign Currencies for any purpose under this Indenture, the principal amount of
such Debt Securities at any time Outstanding shall be deemed to be the Dollar
Equivalent of such principal amount as of the date of any such calculation.
In the event any Foreign Currency or currencies or units of two or more
Currencies in which any payment with respect to any series of Debt Securities
may be made ceases to be a freely convertible Currency on United States Currency
markets, for any date thereafter on which payment of principal of, or premium,
if any, or interest on, the Debt Securities of a series is due, the Company
shall select the Currency of payment for use on such date, all as provided in
the Debt Securities of such series. In such event, the Company shall, as
provided in the Debt Securities of such series, notify the Trustee of the
Currency which it has selected to constitute the funds necessary to meet the
Company's obligations or such payment date and of the amount of such Currency to
be paid. Such amount shall be determined as provided in the Debt Securities of
such series. The payment to the Trustee with respect to such payment date shall
be made by the Company solely in the Currency so selected.
SECTION 2.14. Wire Transfers. Notwithstanding any other provision to the
contrary in this Indenture, the Company may make any payment of monies required
to be deposited with the Trustee on account of principal of, or premium, if any,
or interest on, the Debt Securities (whether pursuant to optional or mandatory
redemption payments, interest payments or otherwise) by wire transfer of
immediately available funds to an account designated by the Trustee on or before
the date such moneys are to be paid to the Holders of the Debt Securities in
accordance with the terms hereof.
SECTION 2.15. Securities Issuable in the Form of a Global Security. (a) If
the Company shall establish pursuant to Sections 2.01 and 2.03 that the Debt
31
Securities of a particular series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the
Trustee or its agent shall, in accordance with Section 2.05, authenticate and
deliver, such Global Security or Securities, which (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
the Outstanding Debt Securities of such series to be represented by such Global
Security or Securities, or such portion thereof as the Company shall specify in
an Officers' Certificate, (ii) shall be registered in the name of the Depositary
for such Global Security or securities or its nominee, (iii) shall be delivered
by the Trustee or its agent to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for the individual Debt
Securities represented hereby, this Global Security may not be transferred
except as a whole by the Depositary to a 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", or such other legend as may then be required by
the Depositary for such Global Security or Securities.
(b) Notwithstanding any other provision of this Section 2.15 or of
Section 2.07 to the contrary, and subject to the provisions of paragraph
(c) below, unless the terms of a Global Security expressly permit such
Global Security to be exchanged in whole or in part for definitive Debt
Securities in registered form, a Global Security may be transferred, in
whole but not in part and in the manner provided in Section 2.07, only by
the Depositary to a nominee of the Depositary for such Global Security, or
by a nominee of the Depositary to the Depositary or another nominee of the
Depositary, or by the Depositary or a nominee of the Depositary to a
successor Depositary for such Global Security selected or approved by the
Company, or to a nominee of such successor Depositary.
(c) (i) If at any time the Depositary for a Global Security or
Securities notifies the Company that it is unwilling or unable to continue
as Depositary for such Global Security or Securities or if at any time the
Depositary for the Debt Securities for such series shall no longer be
eligible or in good standing under the Exchange Act or other applicable
statute, rule or regulation, the Company shall appoint a successor
Depositary with respect to such Global Security or Securities. If a
successor Depositary for such Global Security or Securities is not
32
appointed by the Company within 90 days after the Company receives such notice
or becomes aware of such ineligibility, the Company shall execute, and the
Trustee or its agent, upon receipt of a Company order for the authentication and
delivery of such individual Debt Securities of such series in exchange for such
Global Security, will authenticate and deliver, individual Debt Securities of
such series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of the Global Security in exchange for such
Global Security or securities.
(ii) The Company may at any time and in its sole discretion
determine that the Debt Securities of any series or portion thereof issued or
issuable in the form of one or more Global Securities shall no longer be
represented by such Global security or securities. In such event the Company
will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Debt Securities of such series in
exchange in whole or in part for such Global Security, will authenticate and
deliver individual Debt Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of such series or portion thereof in exchange for such Global Security or
Securities.
(iii) If specified by the Company pursuant to Sections 2.01
and 2.03 with respect to Debt Securities issued or issuable in the form of a
Global Security, the Depositary for such Global Security may surrender such
Global Security in exchange in whole or in part for individual Debt Securities
of such series of like tenor and terms in definitive form on such terms as are
acceptable to the Company, the Trustee and such Depositary. Thereupon the
Company shall execute, and the Trustee or its agent upon receipt of a Company
Order for the authentication and delivery of definitive Debt Securities of such
series shall authenticate and deliver, without service charge, (1) to each
Person specified by such Depositary a new Debt Security or Securities of the
same series of like tenor and terms and of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in exchange
for such Persons beneficial interest in the Global Security; and (2) to such
Depositary a new Global Security of like tenor and terms and in an authorized
denomination equal to the difference, if any, between the principal amount of
the surrendered Global Security and the aggregate principal amount of Debt
Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding
three paragraphs, the Company will execute and the Trustee or its agent will
authenticate and deliver individual Debt Securities. Upon the exchange of the
33
entire principal amount of a Global Security for individual Debt Securities,
such Global Security shall be canceled by the Trustee or its agent. Except as
provided in the preceding paragraph, Registered Securities issued in exchange
for a Global Security pursuant to this Section 2.15 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 the Registrar. The Trustee or the
Registrar shall deliver such Registered Securities to the Persons in whose names
such Registered Securities are so registered.
(v) Payments in respect of the principal of and interest on
any Debt Securities registered in the name of the Depositary or its nominee will
be payable to the Depositary or such nominee in its capacity as the registered
owner of such Global Security. The Company and the Trustee may treat the Person
in whose name the Debt Securities, including the Global Security, are registered
as the owner thereof for the purpose of receiving such payments and for any and
all other purposes whatsoever. None of the Company, the Trustee, any Registrar,
the paying agent or any agent of the Company or the Trustee will have any
responsibility or liability for (a) any aspect of the records relating to or
payments made on account of the beneficial ownership interests of the Global
Security by the Depositary or its nominee or any of the Depositary's direct or
indirect participants, or for maintaining, supervising or reviewing any records
of the Depositary, its nominee or any of its direct or indirect participants
relating to the beneficial ownership interests of the Global Security, (b) the
payments to the beneficial owners of the Global Security of amounts paid to the
Depositary or its nominee, or (c) any other matter relating to the actions and
practices of the Depositary, its nominee or any of its direct or indirect
participants. None of the Company, the Trustee or any such agent will be liable
for any delay by the Depositary, its nominee, or any of its direct or indirect
participants in identifying the beneficial owners of the Debt Securities, and
the Company and the Trustee may conclusively rely on, and will be protected in
relying on, instructions from the Depositary or its nominee for all purposes
(including with respect to the registration and delivery, and the respective
principal amounts, of the Debt Securities to be issued).
SECTION 2.16. Medium Term Securities. Notwithstanding any contrary
provision herein, if all Debt Securities of a series are not to be originally
34
issued at one time, it shall not be necessary for the Company to deliver to the
Trustee an Officers' Certificate, resolutions of the Board of Directors,
supplemental Indenture, Opinion of Counsel or written order or any other
document otherwise required pursuant to Section 2.01, 2.03, 2.05 or 13.05 at or
prior to the time of authentication of each Debt Security of such series if such
documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first such Debt Security of such
series to be issued; provided, that any subsequent request by the Company to the
Trustee to authenticate Debt Securities of such series upon original issuance
shall constitute a representation and warranty by the Company that, as of the
date of such request, the statements made in the Officers' Certificate delivered
pursuant to Section 2.05 or 13.05 shall be true and correct as if made on such
date and that the Opinion of Counsel delivered at or prior to such time of
authentication of an original issuance of Debt Securities shall specifically
state that it shall relate to all subsequent issuances of Debt Securities of
such series that are identical to the Debt Securities issued in the first
issuance of Debt Securities of such series.
A Company Order delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph, may provide that Debt
Securities which are the subject thereof will be authenticated and delivered by
the Trustee or its agent on original issue from time to time upon the telephonic
or written order of Persons designated in such written order (any such
telephonic instructions to be promptly confirmed in writing by such Person) and
that such Persons are authorized to determine, consistent with the Officers'
Certificate, supplemental Indenture or resolution of the Board of Directors
relating to such written order, such terms and conditions of such Debt
Securities as are specified in such Officers' Certificate, supplemental
Indenture or such resolution.
SECTION 2.17. Defaulted Interest. Any interest on any Debt Security of a
particular series which is payable, but is not punctually paid or duly provided
for, on the dates and in the manner provided in the Debt Securities of such
series and in this Indenture (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Registered Holder thereof on the relevant
record date by virtue of having been such Registered Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (i) or (ii) below:
35
(i) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series are registered at the close of business on a special
record date for the payment of such Defaulted Interest, which shall be
fixed in the following manner: The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on
each such Registered Security of such series and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed
to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the
date of the proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
special record date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such special record date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the special
record date therefor to be mailed, first class postage prepaid, to
each Holder thereof at its address as it appears in the Security
Register, not less than 10 days prior to such special record date.
Notice of the proposed payment of such Defaulted Interest and the
special record date therefor having been so mailed, such Defaulted
interest shall be paid to the Persons in whose names the Registered
Securities of such series are registered at the close of business on
such special record date.
(ii) The Company may make payment of any Defaulted Interest on
the Registered Securities of such series in any other lawful manner
not inconsistent with the requirements of any securities exchange on
which the Registered Securities of such series may be listed, and upon
such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by
the Trustee.
SECTION 2.18. Judgments. The Company may provide pursuant to Section 2.03
for Debt Securities of any series that (a) the obligation, if any, of the
Company to pay the principal of, and premium, if any, and interest on, the Debt
36
Securities of any series in a Foreign Currency or Dollars (the "Designated
Currency") as may be specified pursuant to Section 2.03 is of the essence and
agrees that, to the fullest extent possible under applicable law, judgments in
respect of Debt Securities of such series shall be given in the Designated
Currency; (b) the obligation of the Company to make payments in the Designated
Currency of the principal of, and premium, if any, and interest on, such Debt
Securities shall, notwithstanding any payment in any other Currency (whether
pursuant to a judgment or otherwise), be discharged only to the extent of the
amount in the Designated Currency that the Holder receiving such payment may, in
accordance with normal banking procedures, purchase with the sum paid in such
other Currency (after any premium and cost exchange) on the business day in the
country of issue of the Designated Currency or in the international banking
community (in the case of a composite currency) immediately following the day on
which such Holder receives such payment; (c) if the amount in the Designated
Currency that may be so purchased for any reason falls short of the amount
originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
ARTICLE III
Redemption of Debt Securities
SECTION 3.01. Applicability of Article. The provisions of this Article
shall be applicable to the Debt Securities of any series which are redeemable
before their Stated Maturity except as otherwise specified as contemplated by
Section 2.03 for Debt Securities of such series.
SECTION 3.02. Notice of Redemption; Selection of Debt Securities. In case
the Company shall desire to exercise the right to redeem all or, as the case may
be, any part of the Debt Securities of any series in accordance with their
terms, a resolution of the Board of Directors of the Company or a supplemental
Indenture, the Company shall fix a date for redemption and shall give notice of
such redemption at least 30 and not more than 60 days prior to the date fixed
for redemption to the Holders of Debt Securities of such series so to be
redeemed as a whole or in part, in the manner provided in Section 13.03. The
notice if given in the manner herein provided shall be conclusively presumed to
37
have been duly given, whether or not the Holder receives such notice. In any
case, failure to give such notice or any defect in the notice to the Holder of
any Debt 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
Debt Security of such series.
Each such notice of redemption shall specify the date fixed for redemption,
the redemption price at which Debt Securities of such series are to be redeemed,
the Place or Places of Payment that payment will be made upon presentation and
surrender of such Debt Securities, that any interest accrued to the date fixed
for redemption will be paid as specified in said notice, that the redemption is
for a sinking fund payment (if applicable), that, if the Company defaults on
making such redemption payment or if the Debt Securities of that series are
subordinated pursuant to the terms of Article XII the paying agent is prohibited
from making such payment pursuant to the terms of this Indenture, that on and
after said date any interest thereon or on the portions thereof to be redeemed
will cease to accrue, that in the case of Original Issue Discount Securities
original issue discount accrued after the date fixed for redemption will cease
to accrue, the terms of the Debt Securities of that series pursuant to which the
Debt Securities of that series are being redeemed and that no representation is
made as to the correctness or accuracy of the CUSIP number, if any, listed in
such notice or printed on the Debt Securities of that series. If less than all
the Debt Securities of a series are to be redeemed the notice of redemption
shall specify the CUSIP numbers of the Debt Securities of that series to be
redeemed. In case any Debt 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 Debt Security, a new Debt Security or Debt Securities of
that series will be issued in principal amount equal to the unredeemed portion
thereof.
At least 60 days before the redemption date unless the Trustee consents to
a shorter period, the Company shall give notice to the Trustee of the redemption
date, the principal amount of Debt Securities to be redeemed and the series and
terms of the Debt Securities pursuant to which such redemption will occur. Such
notice shall be accompanied by an Officers' Certificate and an Opinion of
Counsel from the Company to the effect that such redemption will comply with the
conditions herein. If fewer than all the Debt Securities of a series are to be
redeemed, the record date relating to such redemption shall be selected by the
38
Company and given to the Trustee, which record date shall be not less than 15
days after the date of notice to the Trustee.
On or prior to the redemption date for any Registered Securities, the
Company shall deposit with the Trustee or with a paying agent (or, if the
Company is acting as its own paying agent, segregate and hold in trust) an
amount of money in the Currency in which such Debt Securities are denominated
(except as provided pursuant to Section 2.03) sufficient to pay the redemption
price of such Registered Securities or any portions thereof that are to be
redeemed on that date.
If less than all the Debt Securities of like tenor and terms of a series
are to be redeemed (other than pursuant to mandatory sinking fund redemptions)
the Trustee shall select, in such manner as in its sole discretion it shall deem
appropriate and fair, the Debt Securities of that series or portions thereof (in
multiples of $1,000) to be redeemed. In any case where more than one Registered
Security of such series is registered in the same name, the Trustee in its
discretion may treat the aggregate principal amount so registered as if it were
represented by one Registered Security of such series. The Trustee shall
promptly notify the Company in writing of the Debt Securities selected for
redemption and, in the case of any Debt Securities selected for partial
redemption, the principal amount thereof to be redeemed. If any Debt Security
called for redemption shall not be so paid upon surrender thereof on such
redemption date, the principal, premium, if any, and interest shall bear
interest until paid from the redemption date at the rate borne by the Debt
Securities of that series. If less than all the Debt Securities of unlike tenor
and terms of a series are to be redeemed, the particular Debt Securities to be
redeemed shall be selected by the Company. Provisions of this Indenture that
apply to Debt Securities called for redemption also apply to portions of Debt
Securities called for redemption.
SECTION 3.03. Payment of Debt Securities Called for Redemption. If notice
of redemption has been given as provided in Section 3.02, the Debt Securities or
portions of Debt Securities of the series with respect to which such notice has
been given shall become due and payable on the date and at the Place or Places
of Payment stated in such notice at the applicable redemption price, together
with any interest accrued to the date fixed for redemption, and on and after
said date (unless the Company shall default in the payment of such Debt
Securities at the applicable redemption price, together with any interest
39
accrued to said date) any interest on the Debt Securities or portions of Debt
Securities of any series so called for redemption shall cease to accrue and any
original issue discount in the case of Original Issue Discount Securities shall
cease to accrue. On presentation and surrender of such Debt Securities at the
Place or Places of Payment in said notice specified, the said Debt Securities or
the specified portions thereof shall be paid and redeemed by the Company at the
applicable redemption price, together with any interest accrued thereon to the
date fixed for redemption.
Any Debt Security that is to be redeemed only in part shall be surrendered
at the corporate trust office or such other office or agency of the Company as
is specified pursuant to Section 2.03, if the Company, the Registrar or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company, the Registrar and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing, and the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Debt Security without service charge, a new Debt Security or Debt
Securities of the same series, of like tenor and form, of any authorized
denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Debt Security
so surrendered; except that if a Global Security is so surrendered, the Company
shall execute, and the Trustee shall authenticate and deliver to the Depositary
for such Global Security, without service charge, a new Global Security in a
denomination equal to and in exchange for the unredeemed portion of the
principal of the Global Security so surrendered. In the case of a Debt Security
providing appropriate space for such notation, at the option of the Holder
thereof, the Trustee, in lieu of delivering a new Debt Security or Debt
Securities as aforesaid, may make a notation on such Debt Security of the
payment of the redeemed portion thereof.
SECTION 3.04. Mandatory and Optional Sinking Funds. The minimum amount of
any sinking fund payment provided for by the terms of Debt Securities of any
series, resolution of the Board of Directors or a supplemental Indenture 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 Debt Securities of
any series, resolution of the Board of Directors or a supplemental Indenture is
herein referred to as an "optional sinking fund payment".
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In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Debt Securities of a series in cash, the Company may at its
option (a) deliver to the Trustee Debt Securities of that series theretofore
purchased or otherwise acquired by the Company or (b) receive credit for the
principal amount of Debt Securities of that series which have been redeemed
either at the election of the Company pursuant to the terms of such Debt
Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Debt Securities, resolution or
supplemental Indenture; provided, that such Debt Securities have not been
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee at the redemption price specified in such Debt
Securities, resolution or supplemental Indenture for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 3.05. Redemption of Debt Securities for Sinking Fund. Not less than
60 days prior to each sinking fund payment date for any series of Debt
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, any resolution or supplemental Indenture,
the portion thereof, if any, which is to be satisfied by payment of cash in the
Currency in which the Debt Securities of such series are denominated (except as
provided pursuant to Section 2.03) and the portion thereof, if any, which is to
be satisfied by delivering and crediting Debt Securities of that series pursuant
to this Section 3.05 (which Debt Securities, if not previously redeemed, will
accompany such certificate) and whether the Company intends to exercise its
right to make any permitted optional sinking fund payment with respect to such
series. Such certificate shall also state that no Event of Default has occurred
and is continuing with respect to such series. Such certificate shall be
irrevocable and upon its delivery the Company shall be obligated to make the
cash payment or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Company to deliver such
certificate (or to deliver the Debt Securities specified in this paragraph)
shall not constitute a Default, but such failure shall require that the sinking
fund payment due on the next succeeding sinking fund payment date for that
series shall be paid entirely in cash and shall be sufficient to redeem the
principal amount of such Debt Securities subject to a mandatory sinking fund
payment without the option to deliver or credit Debt Securities as provided in
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this Section 3.05 and without the right to make any optional sinking fund
payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in cash
plus any unused balance of any preceding sinking fund payments made in cash
which shall equal or exceed $100,000 (or a lesser sum if the Company shall so
request) with respect to the Debt Securities of any particular series shall be
applied by the Trustee on the sinking fund payment date on which such payment is
made (or, if such payment is made before a sinking fund payment date, on the
sinking fund payment date following the date of such payment) to the redemption
of such Debt Securities at the Redemption Price specified in such Debt
Securities, resolution or supplemental Indenture for operation of the sinking
fund together with any accrued interest to the date fixed for redemption. Any
sinking fund moneys not so applied or allocated by the Trustee to the redemption
of Debt Securities shall be added to the next cash sinking fund payment received
by the Trustee for such series and, together with such payment, shall be applied
in accordance with the provisions of this Section 3.05. Any and all sinking fund
moneys with respect to the Debt Securities of any particular series held by the
Trustee on the last sinking fund payment date with respect to Debt Securities of
such series and not held for the payment or redemption of particular Debt
Securities shall be applied by the Trustee, together with other moneys, if
necessary, to be deposited sufficient for the purpose, to the payment of the
principal of the Debt Securities of that series at its Stated Maturity.
The Trustee shall select the Debt Securities to be redeemed upon such
sinking fund payment date in the manner specified in the last paragraph of
Section 3.02 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 3.02 except that the notice of
redemption shall also state that the Debt Securities are being redeemed by
operation of the sinking fund. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Section 3.03.
At least one business day before each sinking fund payment date, the
Company shall pay to the Trustee (or, if the Company is acting as its own paying
agent, the Company shall segregate and hold in trust) in cash a sum in the
Currency in which the Debt Securities of such series are denominated (except as
provided pursuant to Section 2.03) equal to any interest accrued to the date
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fixed for redemption of Debt Securities or portions thereof to be redeemed on
such sinking fund payment date pursuant to this Section 3.05.
The Trustee shall not redeem any Debt Securities of a series with sinking
fund moneys or mail any notice of redemption of such Debt Securities by
operation of the sinking fund for such series during the continuance of a
Default in payment of interest on such Debt Securities or of any Event of
Default (other than an Event of Default occurring as a consequence of this
paragraph) with respect to such Debt Securities, except that if the notice of
redemption of any such Debt Securities shall theretofore have been mailed in
accordance with the provisions hereof, the Trustee shall redeem such Debt
Securities if cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this Article III.
Except as aforesaid, 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 such sinking fund shall, during the continuance of such Default or
Event of Default, be held as security for the payment of such Debt Securities;
provided, however, that in case such Event of Default or Default shall have been
cured or waived as provided herein, such moneys shall thereafter be applied on
the next sinking fund payment date for such Debt Securities on which such moneys
may be applied pursuant to the provisions of this Section 3.05.
ARTICLE IV
Particular Covenants of the Company
SECTION 4.01. Payment of Principal of, and Premium, If Any, and Interest
on, Debt Securities. The Company, for the benefit of each series of Debt
Securities, will duly and punctually pay or cause to be paid the principal of,
and premium, if any, and interest on, each of the Debt Securities at the place,
at the respective times and in the manner provided herein and in the Debt
Securities. Each installment of interest on the Debt Securities may at the
Company's option be paid by mailing checks for such interest payable to the
Person entitled thereto to the address of such Person as it appears on the Debt
Security Register maintained pursuant to Section 2.07(a).
Principal, premium and interest of Debt Securities of any series shall be
considered paid on the date due if on such date the Trustee or any paying agent
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holds in accordance with this Indenture money sufficient to pay in the Currency
in which the Debt Securities of such series are denominated (except as provided
pursuant to Section 2.03) all principal, premium and interest then due and, in
the case of Debt Securities subordinated pursuant to the terms of Article XII,
the Trustee or such paying agent, as the case may be, is not prohibited from
paying such money to the Holders on that date pursuant to the terms of the
Indenture.
The Company shall pay interest on overdue principal at the rate specified
therefor in the Debt Securities and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. Maintenance of Offices or Agencies for Registration of
Transfer, Exchange and Payment of Debt Securities. The Company will maintain in
each Place of Payment for any series of Debt Securities, an office or agency
where Debt Securities of such series may be presented or surrendered for
payment, where Debt Securities of such series may be surrendered for transfer or
exchange and where notices and demands to or upon the Company in respect of the
Debt Securities of such series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the corporate trust office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all
presentations, surrenders, notices and demands.
The Company may also from time to time designate different or additional
offices or agencies to be maintained for such purposes (in or outside of such
Place of Payment), and may from time to time rescind any such designation;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligations described in the preceding paragraph. The
Company will give prompt written notice to the Trustee of any such additional
designation or rescission of designation and any change in the location of any
such different or additional office or agency.
SECTION 4.03. Appointment to Fill a Vacancy in the Office of Trustee. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 7.08, a Trustee, so that there
shall at all times be a Trustee hereunder with respect to each series of Debt
Securities.
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SECTION 4.04. Duties of Paying Agents, etc. (a) The Company shall cause
each paying agent, if any, other than the Trustee, 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 4.04,
(i) that it will hold all sums held by it as such agent for
the payment of the principal of, and premium, if any, or interest on,
the Debt Securities of any series (whether such sums have been paid to
it by the Company or by any other obligor on the Debt Securities of
such series) in trust for the benefit of the Holders of the Debt
Securities of such series;
(ii) that it will give the Trustee notice of any failure by
the Company (or by any other obligor on the Debt Securities of such
series) to make any payment of the principal of and premium, if any, or
interest on, the Debt Securities of such series when the same shall be
due and payable; and
(iii) that it will at any time during the continuance of an
Event of Default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held by it as such agent.
(b) If the Company shall act as its own paying agent, it will,
on or before each due date of the principal of, and premium, if any, or interest
on, the Debt Securities if any, of any series, set aside, segregate and hold in
trust for the benefit of the Holders of the Debt Securities of such series a sum
sufficient to pay such principal, premium, if any, or interest so becoming due.
The Company will promptly notify the Trustee of any failure by the Company to
take such action or the failure by any other obligor on such Debt Securities to
make any payment of the principal of, and premium, if any, or interest on, such
Debt Securities when the same shall be due and payable.
(c) Anything in this Section 4.04 to the contrary
notwithstanding, the Company 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, as required by this Section 4.04, such sums to be held by the Trustee
upon the same terms as those upon which such sums were held by the Company or
such paying agent.
(d) Whenever the Company shall have one or more paying agents
with respect to any series of Debt Securities, it will, prior to each due date
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of the principal of, and premium, if any, or interest on, any Debt Securities of
such series, deposit with any such paying agent a sum sufficient to pay the
principal, premium or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled thereto, and (unless any such paying agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
(e) Anything in this Section 4.04 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in this Section
4.04 is subject to the provisions of Section 11.05.
SECTION 4.05. Statement by Officers as to Default. The Company will deliver
to the Trustee, on or before a date not more than four months after the end of
each fiscal year of the Company (currently ending on June 30 of each year)
ending after the date hereof, an Officers' Certificate stating, as to each
officer signing such certificate, that (i) in the course of his performance of
his duties as an officer of the Company he would normally have knowledge of any
Default, (ii) whether or not to the best of his knowledge any Default occurred
during such year and (iii) if to the best of his knowledge the Company is in
Default, specifying all such Defaults and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with
Section 314(a)(4) of the Trust Indenture Act.
SECTION 4.06. Further Instruments and Acts. The Company will, upon request
of the Trustee, execute and deliver such further instruments and do such further
acts as may reasonably be necessary or proper to carry out more effectually the
purposes of this Indenture.
SECTION 4.07. Corporate Existence. Subject to Article X, the Company shall
do or cause to be done all things necessary to preserve and keep in full force
and effect the corporate existence and related rights and franchises (charges
and statutory) of the Company and each of its Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right or franchise
for the corporate existence of any such Subsidiary if the Board of Directors of
the Company shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries as a whole
and that the loss thereof would not reasonably be expected to have a material
adverse effect on the ability of the Company to perform its obligations
hereunder; and provided, further, however, that the foregoing shall not prohibit
46
a sale, transfer or conveyance of a Subsidiary of the Company or any of its
assets in compliance with the terms of this Indenture.
SECTION 4.08. Maintenance of Properties. The Company shall cause all
material properties owned by the Company or any of its Subsidiaries or used or
held for use in the conduct of its business or the business of any of its
Subsidiaries to be maintained and kept in good condition, repair and working
order (ordinary wear and tear excepted) and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the reasonable
judgment of the Company may be consistent with sound business practice and
necessary so that the business carried on in connection therewith may be
properly conducted at all times; provided, however, that nothing in this Section
shall prevent the Company from discontinuing the maintenance of any of such
properties if such discontinuance is, in the reasonable judgment of the Company,
desirable in the conduct of its business or the business of any of its
Subsidiaries and not reasonably expected to have a material adverse effect on
the ability of the Company to perform its obligations hereunder.
SECTION 4.09. Payment of Taxes and Other Claims. The Company shall pay or
discharge or cause to be paid or discharged, on or before the date the same
shall become due and payable, (a) all taxes, assessments and governmental
charges levied or imposed upon the Company or any of its Subsidiaries or
otherwise assessed or upon the income, profits or property of the Company or any
of its Subsidiaries if failure to pay or discharge the same could reasonably be
expected to have a material adverse effect on the ability of the Company to
perform its obligations hereunder and (b) all lawful claims for labor, materials
and supplies, which, if unpaid, would by law become a Lien upon the property of
the Company or any of its Subsidiaries, except for any Lien permitted to be
incurred under Section 4.10, if failure to pay or discharge the same could
reasonably be expected to have a material adverse effect on the ability of the
Company to perform its obligations hereunder; provided, however, that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings properly
instituted and diligently conducted and in respect of which appropriate reserves
(in the good faith judgment of management of the Company) are being maintained
in accordance with GAAP.
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SECTION 4.10. Limitation on Liens. Unless the Company contemporaneously
secures the Debt Securities equally and ratably with (or prior to) such
obligation, the Company shall not, and shall not permit any of its Subsidiaries
to, directly or indirectly, create or permit to exist any Lien on any Principal
Property, or any shares of stock or any Indebtedness of any Restricted
Subsidiary whether owned on the Issue Date or thereafter acquired, securing any
obligation except for:
(i) Permitted Liens; or
(ii) Liens other than those referred to in Section 4.10(i)
above securing Indebtedness if, after giving pro forma effect to the
Incurrence of such Indebtedness (and the receipt and application of the
proceeds thereof) or the securing of outstanding Indebtedness, all
Indebtedness of the Company and its Subsidiaries secured by Liens on
Principal Property (other then Permitted Liens) at the time of
determination does not exceed [10% of the total consolidated
stockholders, equity of the Company as shown on the audited
consolidated balance sheet contained in the latest annual report to
stockholders of the Company].
ARTICLE V
Holders' Lists and Reports
by the Company And the Trustee
SECTION 5.01. Company to Furnish Trustee Information as to Names and
Addresses of Holders; Preservation of Information. The Company covenants and
agrees that it will furnish or cause to be furnished to the Trustee with respect
to the Registered Securities of each series:
(a) not more than 15 days after each record date with respect
to the payment of interest, if any, a list, in such form as the Trustee
may reasonably require, of the names and addresses of the Registered
Holders as of such record date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list as of a date not more than 15 days prior to the time such list is
furnished;
48
provided, however, that so long as the Trustee shall be the Registrar, such
lists shall not be required to be furnished.
The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders (1)
contained in the most recent list furnished to it as provided in this Section
5.01 or (2) received by it in the capacity of paying agent or Registrar (if so
acting) hereunder.
The Trustee may destroy any List furnished to it as provided in this
Section 5.01 upon receipt of a new List so furnished.
SECTION 5.02. Communications to Holders. Holders may communicate pursuant
to Section 312(b) of the Trust Indenture Act with other Holders with respect to
their rights under this Indenture or the Debt Securities. The Company, the
Trustee, the Registrar and anyone else shall have the protection of Section
312(c) of the Trust Indenture Act.
SECTION 5.03. Reports by Company. (a) The Company covenants and agrees, and
any obligor hereunder shall covenant and agree, to file with the Trustee, within
15 days after the Company or such obligor, as the case may be, is required to
file the same with the Securities and Exchange 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 said Commission may from time to time by
rules and regulations prescribe) which the Company or such obligor, as the case
may be, may be required to file with said Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company or such obligor, as the
case may be, is not required to file information, documents or reports pursuant
to either of such Sections, then to file with the Trustee and said Commission,
in accordance with rules and regulations prescribed from time to time by said
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations.
(b) The Company covenants and agrees, and any obligor
hereunder shall covenant and agree, to file with the Trustee and the Securities
and Exchange Commission, in accordance with the rules and regulations prescribed
from time to time by said Commission, such additional information, documents,
49
and reports with respect to compliance by the Company or such obligor, as the
case may be, with the conditions and covenants provided for in this Indenture as
may be required from time to time by such rules and regulations.
SECTION 5.04. Reports by Trustee. The Trustee shall transmit to Holders
such reports concerning the Trustee and its actions under this Indenture as may
be required pursuant to the Trust Indenture Act at the time and in the manner
provided pursuant thereto.
Reports pursuant to this Section 5.04 shall be transmitted by mail:
(1) to all Registered Holders, as the names and addresses of
such Holders appear in the Debt Security Register;
(2) except in the cases of reports under Section 313(b)(2) of
the Trust Indenture Act, to each holder of a Debt Security of any
series whose name and address appear in the information preserved at
the time by the Trustee in accordance with Section 5.02.
A copy of each report at the time of its mailing to Holders shall be filed
with the Securities and Exchange Commission and each stock exchange (if any) on
which the Debt Securities of any series are listed. The Company agrees to notify
promptly the Trustee whenever the Debt Securities of any series become listed on
any stock exchange and of any delisting thereof.
SECTION 5.05. Record Dates for Action by Holders. If the Company shall
solicit from the Holders of Debt Securities of any series any action (including
the making of any demand or request, the giving of any direction, notice,
consent or waiver or the taking of any other action), the Company may, at its
option, by resolution of the Board of Directors, fix in advance a record date
for the determination of Holders of Debt Securities entitled to take such
action, but the Company shall have no obligation to do so. Any such record date
shall be fixed at the Company's discretion. If such a record date is fixed, such
action may be sought or given before or after the record date, but only the
Holders of Debt Securities of record at the close of business on such record
date shall be deemed to be Holders of Debt Securities for the purpose of
determining whether Holders of the requisite proportion of Debt Securities of
such series Outstanding have authorized or agreed or consented to such action,
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and for that purpose the Debt Securities of such series Outstanding shall be
computed as of such record date.
ARTICLE VI
Remedies of the Trustee and Holders in Event of Default
SECTION 6.01. Events of Default. If any one or more of the following shall
have occurred and be continuing with respect to Debt Securities of any series
(each of the following, an "Event of Default"):
(a) Default in the payment of any installment of interest upon
any Debt Securities of that series as and when the same shall become
due and payable, whether or not such payment shall be prohibited by
Article XII, if applicable, 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, on any Debt Securities of that series as and when the same shall
become due and payable, whether at maturity, upon redemption, by
declaration, upon required repurchase or otherwise, whether or not such
payment shall be prohibited by Article XII, if applicable; or
(c) default in the payment of any sinking fund payment with
respect to any Debt Securities of that series as and when the same
shall become due and payable; or
(d) failure on the part of the Company to comply with Article
X; or
(e) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company in the Debt Securities of that series, in any resolution of the
Board of Directors authorizing the issuance of that series of Debt
Securities, in this Indenture with respect to such series or in any
supplemental Indenture with respect to such series (other than a
covenant a default in the performance of which is elsewhere in this
Section specifically dealt with), continuing for a period of 60 days
after the date on which written notice specifying such failure and
requiring the Company to remedy the same shall have been given, by
registered or certified mail, to the Company by the Trustee or to the
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Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Debt Securities of that series at the time
Outstanding; or
(f) Indebtedness of the Company or any Subsidiary of the
Company is not paid within any applicable grace period after final
maturity or is accelerated by the holders thereof because of a default,
the total amount of such Indebtedness unpaid or accelerated exceeds
$30,000,000 or its Dollar Equivalent at the time and such default
remains uncured or such acceleration is not rescinded for 10 days after
the date on which written notice specifying such failure and requiring
the Company to remedy the same shall have been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of
the Debt Securities of that series at the time Outstanding; or
(g) the Company or any of its Restricted Subsidiaries shall
(i) voluntarily commence any proceeding or file any petition seeking
relief under Title 11 of the United States Code or any other Federal or
State bankruptcy, insolvency or similar law, (ii) consent to the
institution of, or fail to controvert within the time and in the manner
prescribed by law, any such proceeding or the filing of any such
petition, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator or similar official for the Company or
any such Restricted Subsidiary or for a substantial part of its
property, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors, (vi) admit in writing its
inability or fail generally to pay its debts as they become due, (vii)
take corporate action for the purpose of effecting any of the
foregoing, or (viii) take any comparable action under any foreign laws
relating to insolvency; or
(h) the entry of an order or decree by a court having
competent jurisdiction in the premises for (i) relief in respect of the
Company or any of its Restricted Subsidiaries or a substantial part of
any of their property under Title 11 or the United States Code or any
other Federal or State bankruptcy, insolvency or similar law, (ii) the
appointment of a receiver, trustee, custodian, sequestrator or similar
52
official for the Company or any such Restricted Subsidiary or for a
substantial part of any of their property (except any decree or order
appointing such official of any Restricted Subsidiary pursuant to a
plan under which the assets and operations of such Restricted
Subsidiary are transferred to or combined with another Subsidiary or
Subsidiaries of the Company or to the Company) or (iii) the winding-up
or liquidation of the Company or any such Restricted Subsidiary
(except any decree or order approving or ordering the winding up or
liquidation of the affairs of a Restricted Subsidiary pursuant to a
plan under which the assets and operations of such Restricted
Subsidiary are transferred to or combined with another Subsidiary or
Subsidiaries of the Company or to the Company); and such order or
decree shall continue unstayed and in effect for 60 consecutive days;
or any similar relief is granted under any foreign laws and the order
or decree stays in effect for 60 consecutive days; or
(i) any other Event of Default provided under the terms of the
Debt Securities of that series;
then and in each and every case that an Event of Default with respect to Debt
Securities of that series at the time outstanding occurs and is continuing,
unless the principal of and interest on all the Debt Securities of that 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 Debt Securities of that
series then Outstanding hereunder, by notice in writing to the Company (and to
the Trustee if given by Holders), may declare the principal of (or, if the Debt
Securities of that series are Original Issue Discount Debt Securities, such
portion of the principal amount as may be specified in the terms of that series)
and interest on all the Debt Securities of that series to be due and payable
immediately, and upon any such declaration the same shall become and shall be
immediately due and payable, anything in this Indenture or in the Debt
Securities of that series contained to the contrary notwithstanding.
The Holders of a majority in principal amount of the Debt Securities of a
particular series by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
already rendered and if all existing Events of Default have been cured or waived
except nonpayment of principal or interest that has become due solely because of
acceleration. Upon any such rescission, the parties hereto shall be restored
respectively to their several positions and rights hereunder, and all rights,
53
remedies and powers of the parties hereto shall continue as though no proceeding
had been taken.
In case the Trustee or any Holder 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 or such Holder, then and in
every such case the parties hereto shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of
the parties hereto shall continue as though no such proceeding had been taken.
The foregoing Events of Default shall constitute Events of Default whatever
the reason for any such Event of Default and whether it is voluntary or
involuntary or is effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which with the giving of notice and the lapse of time would become an
Event of Default under clause (c), (d), (e), (f), (g), (h) or (i), its status
and what action the Company is taking or proposes to take with respect thereto.
SECTION 6.02. Collection of Indebtedness by Trustee, etc. If an Event of
Default occurs and is continuing, the Trustee, in its own name and as trustee of
an express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and unpaid
or enforce the performance of any provision of the Debt Securities of the
affected series or this Indenture, and may prosecute any such action or
proceedings to judgment or final decree, and may enforce any such judgment or
final decree against the Company or any other obligor upon the Debt Securities
of such series (and collect in the manner provided by law out of the property of
the Company or any other obligor upon the Debt Securities of such series
wherever situated the moneys adjudged or decreed to be payable).
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor upon the Debt Securities of
any series under Title 11 of the United States Code or any other Federal or
State bankruptcy, insolvency or similar law, or in case a receiver, trustee or
54
other similar official shall have been appointed for its property, or in case of
any other similar judicial proceedings relative to the Company or any other
obligor upon the Debt Securities of any series, its creditors or its property,
the Trustee, irrespective of whether the principal of Debt Securities of any
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 6.02, 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, premium, if any, and interest
(or, if the Debt Securities of such series are Original Issue Discount Debt
Securities, such portion of the principal amount as may be specified in the
terms of such series) owing and unpaid in respect of the Debt Securities of such
series, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities Incurred, and all advances
made, by the Trustee except as a result of its negligence or bad faith) and of
the Holders thereof allowed in any such judicial proceedings relative to the
Company, or any other obligor upon the Debt Securities of such series, its
creditors or its property, and to collect and receive any moneys or other
property payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of such Holders and of the Trustee
on their behalf, and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of such Holders to make payments to
the Trustee, and, in the event that the Trustee shall consent to the making of
payments directly to such Holders, to pay to the Trustee such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other reasonable expenses and liabilities
Incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith.
All rights of action and of asserting claims under this Indenture, or under
any of the Debt Securities, of any series, may be enforced by the Trustee
without the possession of any such Debt Securities or the production thereof in
any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment (except for any
amounts payable to the Trustee pursuant to Section 7.06) shall be for the
ratable benefit of the Holders of all the Debt Securities in respect of which
such action was taken.
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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 at law or in equity or 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 6.03. Application of Moneys Collected by Trustee. Any moneys or
other property collected by the Trustee pursuant to Section 6.02 with respect to
Debt Securities of any series shall be applied, after giving effect to the
provisions of Article XII, if applicable, in the order following, at the date or
dates fixed by the Trustee for the distribution of such moneys or other
property, upon presentation of the several Debt Securities of such series in
respect of which moneys or other property have been collected, and the notation
thereon of the payment, if only partially paid, and upon surrender thereof if
fully paid:
First: To the payment of all money due the
Trustee pursuant to Section 7.06;
Second: In case the principal of the Outstanding Debt
Securities in respect of which such moneys have been collected shall
not have become due, to the payment of interest on the Debt Securities
of such series in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at
the rate or Yield to Maturity (in the case of Original Issue Discount
Debt Securities) borne by the Debt Securities of such series, such
payments to be made ratably to the Persons entitled thereto, without
discrimination or preference;
Third: In case the principal of the Outstanding Debt
Securities in respect of which such moneys have been collected shall
have become due, by declaration or otherwise, to the payment of the
whole amount then owing and unpaid upon the Debt Securities of such
series for principal and premium, if any, and interest, with interest
on the overdue principal and premium, if any, and (to the extent that
such interest has been collected by the Trustee) upon overdue
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installments of interest at the rate or Yield to Maturity (in the case
of Original Issue Discount Debt Securities) borne by the Debt
Securities of such series; and, in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon
the Debt Securities of such series, then to the payment of such
principal and premium, if any, and interest, without preference or
priority of principal and premium, if any, over interest, or of
interest over principal and premium, if any, or of any installment of
interest over any other installment of interest, or of any Debt
Security of such series over any Debt Security of such series, ratably
to the aggregate of such principal and premium, if any, and interest;
and
Fourth: The remainder, if any, shall be paid to the Company,
its successors or assigns, or to whomsoever may be lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.03. At least 15 days before such record date,
the Company shall mail to each Holder and the Trustee a notice that states the
record date, the payment date and amount to be paid.
SECTION 6.04. Limitation on Suits by Holders. No Holder of any Debt
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise, upon or under or with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of an Event of Default with respect to Debt Securities of that
same series and of the continuance thereof and unless the Holders of not less
than 25% in aggregate principal amount of the Outstanding Debt Securities of
that series shall have made written request upon the Trustee to institute such
action or proceedings in respect of such Event of Default 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 failed to institute any
such action or proceedings and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 6.06; it being
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understood and intended, and being expressly covenanted by the Holder of every
Debt Security with every other Holder and the Trustee, that no one or more
Holders shall have any right in any manner whatever by virtue or by availing of
any provision of this Indenture to affect, disturb or prejudice the rights of
any Holders, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all such
Holders. For the protection and enforcement of the provisions of this Section
6.04, each and every Holder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Notwithstanding any other provision in this Indenture, however, the right
of any Holder of any Debt Security to receive payment of the principal of, and
premium, if any, and (subject to Section 2.12) interest on, such Debt Security
on or after the respective due dates expressed in such Debt Security, and to
institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or effected without the consent of such
Holder.
SECTION 6.05. Remedies Cumulative; Delay or Omission in Exercise of Rights
Not a Waiver of Default. All powers and remedies given by this Article VI to the
Trustee or to the Holders 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 Holders, 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
Holder 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 6.04, every power and remedy given by this
Article VI or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as shall be deemed expedient, by the Trustee or by the
Holders.
SECTION 6.06. Rights of Holders of Majority in Principal Amount of Debt
Securities to Direct Trustee and to Waive Default. The Holders of a majority in
aggregate principal amount of the Debt Securities of any series at the time
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 the Debt Securities
58
of such series; provided, however, that such direction shall not be otherwise
than in accordance with law and the provisions of this Indenture, and that
subject to the provisions of Section 7.01, the Trustee shall have the right to
decline to follow any such direction if the Trustee being advised by counsel
shall determine that the action so directed may not lawfully be taken, or if the
Trustee shall by a responsible officer or officers determine that the action so
directed would involve it in personal liability or would be unjustly prejudicial
to Holders of Debt Securities of such series not taking part in such direction;
and provided further, however, that nothing in this Indenture contained shall
impair the right of the Trustee to take any action deemed proper by the Trustee
and which is not inconsistent with such direction by such Holders. Prior to the
acceleration of the maturity of the Debt Securities of any series, as provided
in Section 6.01, the Holders of a majority in aggregate principal amount of the
Debt Securities of that series at the time Outstanding may on behalf of the
Holders of all the Debt Securities of that series waive any past Default or
Event of Default and its consequences for that series specified in the terms
thereof as contemplated by Section 2.03, except (i) a Default in the payment of
the principal of, and premium, if any, or interest on, any of the Debt
Securities and (ii) a Default in respect of a provision that under Section 9.02
cannot be amended without the consent of each Holder affected thereby. In case
of any such waiver, such Default shall cease to exist, any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture, and the Company, the Trustee and the Holders of the Debt Securities
of that 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 impair any right consequent thereon.
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but May
Withhold Such Notice in Certain Circumstances. The Trustee shall, within 90 days
after the occurrence of a Default known to it with respect to a series of Debt
Securities give to the Holders thereof, in the manner provided in Section 13.03,
notice of all Defaults with respect to such series known to the Trustee, unless
such Defaults shall have been cured or waived before the giving of such notice;
provided that, except in the case of Default in the payment of the principal of,
or premium, if any, or interest on, any of the Debt Securities of such series or
in the making of any sinking fund payment with respect to the Debt Securities of
such series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a committee of
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directors or responsible officers of the Trustee in good faith determine that
the withholding of such notice is in the interests of the Holders thereof.
SECTION 6.08. Requirement of an Undertaking To Pay Costs in Certain Suits
under the Indenture or Against the Trustee. All parties to this Indenture agree,
and each Holder of any Debt Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit in the manner and to the extent provided in the Trust Indenture Act, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 6.08 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than ten percent in principal amount of
the Outstanding Debt Securities of that series or to any suit instituted by any
Holder for the enforcement of the payment of the principal of, or premium, if
any, or interest on, any Debt Security on or after the due date for such payment
expressed in such Debt Security.
ARTICLE VII
Concerning the Trustee
SECTION 7.01. Certain Duties and Responsibilities. The Trustee, prior to
the occurrence of an Event of Default and after the curing or waiving of all
Events of Default which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture. In case an
Event of Default has occurred (which has not been cured or waived), the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
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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) this subsection shall not be construed to limit the effect
of the first paragraph of this Section 7.01;
(b) prior to the occurrence of an Event of Default with
respect to the Debt Securities of a series and after the curing or
waiving of all Events of Default with respect to such series which may
have occurred:
(1) the duties and obligations of the Trustee with
respect to Debt 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 with respect to such series as are
specifically set forth in this Indenture, and no implied
covenants or obligations with respect to such series shall be
read into this Indenture against the Trustee; and
(2) 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 certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions 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; but the Trustee shall examine
the evidence furnished to it pursuant to Section 5.03 to
determine whether or not such evidence conforms to the
requirement of this Indenture;
(c) the Trustee shall not be liable for an error of judgment
made in good faith by a responsible officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts; and
(d) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it with respect to Debt Securities of
any series in good faith in accordance with the direction of the
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Holders of not less than a majority in aggregate principal amount of the
Outstanding Debt Securities of that series relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture
with respect to Debt Securities of such series.
None of the provisions of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any personal financial liability
in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 7.02. Certain Rights of Trustee. Except as otherwise provided in
Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note 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 Company
mentioned herein shall be sufficiently evidenced by a Company 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 Company;
(c) the Trustee may consult with counsel, and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken or suffered
or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request,
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order or direction of any of the Holders of Debt Securities of any
series pursuant to the provisions of this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be
Incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture;
(f) prior to the occurrence of an Event of Default and after
the curing of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, approval
or other paper or document, unless requested in writing to do so by the
Holders of a majority in aggregate principal amount of the then
outstanding Debt Securities of a series affected by such matter;
provided, however, 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 not, in the opinion of the
Trustee, 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 costs, expenses or liabilities as a condition to
so proceeding. The reasonable expense of every such investigation shall
be paid by the Company or, if paid by the Trustee, shall be repaid by
the Company upon demand;
(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 and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed by it with due care hereunder; and
(h) if any property other then cash shall at any time be
subject to a Lien in favor of the Holders, the Trustee, if and to the
extent authorized by a receivership or bankruptcy court of competent
jurisdiction or by the supplemental instrument subjecting such property
to such lien, shall be entitled to make advances for the purpose of
preserving such property or of discharging tax Liens or other prior
Liens or encumbrances thereon.
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SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in Debt
Securities. The recitals contained herein and in the Debt Securities (except the
Trustee's certificate of authentication) shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Debt Securities of any series, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture,
authenticate the Debt Securities and perform its obligations hereunder, and that
the statements made by it or to be made by it in a Statement of Eligibility and
Qualification on Form T-1 supplied to the Company are true and accurate. The
Trustee shall not be accountable for the use or application by the Company of
any of the Debt Securities or of the proceeds thereof.
SECTION 7.04. Trustee, Paying Agent or Registrar May Own Debt Securities.
The Trustee or any paying agent or Registrar, in its individual or any other
capacity, may become the owner or pledgee of Debt Securities and subject to the
provisions of the Trust Indenture Act relating to conflicts of interest and
preferential claims may otherwise deal with the Company with the same rights it
would have if it were not Trustee, paying agent or Registrar.
SECTION 7.05. Moneys Received by Trustee to Be Held in Trust. Subject to
the provisions of Section 11.05, 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 law. The Trustee shall be under no liability for interest on
any moneys received by it hereunder. So long as no Event of Default shall have
occurred and be continuing, all interest allowed on any such moneys shall be
paid from time to time to the Company upon a Company Order.
SECTION 7.06. Compensation and Reimbursement. The Company covenants and
agrees to pay in Dollars to the Trustee from time to time, and the Trustee shall
be entitled to, reasonable compensation for all services rendered by it
hereunder (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and, except as otherwise
expressly provided herein, the Company will pay or reimburse in Dollars the
64
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents, attorneys and counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advances as
may arise from its negligence or bad faith. The Company also covenants to
indemnify in Dollars the Trustee for, and to hold it harmless against, any loss,
liability or expense Incurred without negligence, wilful misconduct or bad faith
on the part of the Trustee, arising out of or in connection with the acceptance
or administration of this trust or trusts hereunder, including the reasonable
costs and expenses of defending itself against any claim of liability in
connection with the exercise or performance of any of its powers or duties
hereunder. The obligations of the Company under this Section 7.06 to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. The Company
and the Holders agree that such additional indebtedness shall be secured by a
Lien prior to that of the Debt Securities upon all property and funds held or
collected by the Trustee, as such, except funds held in trust for the payment of
principal of, and premium, if any, or interest on, particular Debt Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(g) or (h) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency, reorganization or other similar
law.
SECTION 7.07. Right of Trustee to Rely on an Officers' Certificate Where No
Other Evidence Specifically Prescribed. Except as otherwise provided in Section
7.01, whenever in the administration of the provisions 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.
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SECTION 7.08. Separate Trustee; Replacement of Trustee. The Company may,
but need not, appoint a separate Trustee for any one or more series of Debt
Securities. The Trustee may resign with respect to one or more or all series of
Debt Securities at any time by giving notice to the Company. The Holders of a
majority in principal amount of the Debt Securities of a particular series may
remove the Trustee for such series and only such series by so notifying the
Trustee and may appoint a successor Trustee. The Company shall remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders of a
majority in principal amount of the Debt Securities of a particular series and
such Holders do not reasonably promptly appoint a successor Trustee, or if a
vacancy exists in the office of Trustee for any reason (the Trustee in such
event being referred to herein as the retiring Trustee), the Company shall
promptly appoint a successor Trustee. No resignation or removal of the Trustee
and no appointment of a successor Trustee shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of this Section 7.08.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders of Debt
Securities of each applicable series. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee, subject to
the Lien provided for in Section 7.06.
If a successor Trustee does not take office within 60 days after the
retiring Trustee gives notice of resignation or is removed, the retiring Trustee
or the Holders of 25% in principal amount of the Debt Securities of any
66
applicable series may petition any court of competent jurisdiction for the
appointment of a successor Trustee for the Debt Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of Debt
Securities of any applicable series may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for the Debt Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.06 shall continue for the
benefit of the retiring Trustee.
In the case of the appointment hereunder of a separate or successor trustee
with respect to the Debt Securities of one or more series, the Company, any
retiring Trustee and each successor or separate Trustee with respect to the Debt
Securities of any applicable series shall execute and deliver an Indenture
supplemental hereto (1) which shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and duties
of any retiring Trustee with respect to the Debt Securities of any series as to
which any such retiring Trustee is not retiring shall continue to be vested in
such retiring Trustee and (2) that 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
separate, retiring or successor Trustee shall be Trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any other such Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Debt Securities 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 Debt Securities so
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authenticated; and in case at that time any of the Debt Securities shall not
have been authenticated, any successor to the Trustee may authenticate such Debt
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Debt Securities or in this Indenture
provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at all times
satisfy the requirements of Section 310(a) of the Trust Indenture Act. The
Trustee shall have a combined capital and surplus of at least $50,000,000, as
set forth in its most recent published annual report of condition. No obligor
upon the Debt Securities of a particular series or Person directly or indirectly
controlling, controlled by or under common control with such obligor shall serve
as Trustee upon the Debt Securities of such series. The Trustee shall comply
with Section 310(b) of the Trust Indenture Act; provided, however, that there
shall be excluded from the operation of Section 310(b)(1) of the Trust Indenture
Act this Indenture or any indenture or indentures under which other securities
or certificates of interest or participation in other securities of the Company
are outstanding if the requirements for such exclusion set forth in Section
310(b)(1) of the Trust Indenture Act are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A
Trustee who had resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
SECTION 7.12. Compliance with Tax Laws. The Trustee hereby agrees to comply
with all U.S. Federal income tax information reporting and withholding
requirements applicable to it with respect to payments of premium (if any) and
interest on the Debt Securities, whether acting as Trustee, Security Registrar,
paying agent or otherwise with respect to the Debt Securities.
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ARTICLE VIII
Concerning the Holders
SECTION 8.01. Evidence of Action by Holders. Whenever in this Indenture it
is provided that the Holders of a specified percentage in aggregate principal
amount of the Debt Securities of any or all series may take action (including
the making of any demand or request, the giving of any direction, notice,
consent or waiver or the taking of any other action) the fact that at the time
of taking any such action the Holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by Holders in person or by agent or proxy appointed in
writing, (b) by the record of the Holders voting in favor thereof at any meeting
of Holders duly called and held in accordance with the provisions of Section
5.02 or (c) by a combination of such instrument or instruments and any such
record of such a meeting of Holders.
SECTION 8.02. Proof of Execution of Instruments and of Holding of Debt
Securities. Subject to the provisions of Sections 7.01, 7.02 and 13.09, proof of
the execution of any instrument by a Holder or his agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as
may be prescribed by the Trustee or in such manner as shall be satisfactory to
the Trustee.
The ownership of Registered Securities of any series shall be proved by the
Debt Security Register or by a certificate of the Registrar for such series.
The Trustee may require such additional proof of any matter referred to in
this Section 8.02 as it shall deem necessary.
SECTION 8.03. Who May Be Deemed Owner of Debt Securities. Prior to due
presentment for registration of transfer of any Registered Security, the
Company, the Trustee, any paying agent and any Registrar may deem and treat the
Person in whose name any Registered Security shall be registered upon the books
of the Company as the absolute owner of such Registered Security (whether or not
such Registered 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 premium, if any, and (subject to Section
2.03) interest on such Registered Security and for all other purposes, and
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neither the Company nor the Trustee nor any paying agent nor any Registrar shall
be affected by any notice to the contrary; and all such payments so made to any
such Holder for the time being, or upon his order, shall be valid and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Registered Security.
None of the Company, the Trustee, any paying agent or the Registrar will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 8.04. Instruments Executed by Holders Bind Future Holders. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Debt Securities of any series specified in
this Indenture in connection with such action and subject to the following
paragraph, any Holder of a Debt Security which is shown by the evidence to be
included in the Debt Securities the Holders of which have consented to such
action may, by filing written notice with the Trustee at its corporate trust
office and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Debt Security. Except as aforesaid any such action taken
by the Holder of any Debt Security shall be conclusive and binding upon such
Holder and upon all future Holders and owners of such Debt Security and of any
Debt Security issued upon transfer thereof or in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon such Debt Security or such other Debt Securities. Any action taken by the
Holders of the percentage in aggregate principal amount of the Debt Securities
of any series specified in this Indenture in connection with such action shall
be conclusively binding upon the Company, the Trustee and the Holders of all the
Debt Securities of such series.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders of Registered Securities entitled to give
their consent or take any other action required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders of Registered
Securities at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
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continue to be Holders of Registered Securities after such record date. No such
consent shall be valid or effective for more than 120 days after such record
date unless the consent of the Holders of the percentage in aggregate principal
amount of the Debt Securities of such series specified in this Indenture shall
have been received within such 120-day period.
ARTICLE IX
Supplemental Indentures
SECTION 9.01. Purposes for Which Supplemental Indenture May Be Entered into
Without Consent of Holders. The Company, when authorized by a resolution of the
Board of Directors, and the Trustee may from time to time and at any time,
without the consent of Holders, enter into an Indenture or Indentures
supplemental hereto (which shall conform to the provisions of the Trust
Indenture Act as in force at the date of the execution thereof) for one or more
of the following purposes:
(a) to evidence the succession pursuant to Article X of
another Person to the Company, or successive successions, and the
assumption by the Successor Company (as defined in Section 10.01) of
the covenants, agreements and obligations of the Company in this
Indenture and in the Debt Securities;
(b) to surrender any right or power herein conferred upon the
Company, to add to the covenants of the Company such further
covenants, restrictions, conditions or provisions for the protection
of the Holders of all or any series of Debt Securities (and if such
covenants are to be for the benefit of less than all series of Debt
Securities, stating that such covenants are expressly being included
solely for the benefit of such series) as the Board of Directors shall
consider to be for the protection of the Holders of such Debt
Securities, and to make the occurrence, or the occurrence and
continuance, of a Default in any of such additional covenants,
restrictions, conditions or provisions a Default or an Event of
Default permitting the enforcement of all or any of the several
remedies provided in this Indenture; provided, 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 Default or may limit the remedies available to
the Trustee upon such Default or may limit the right of the Holders of
a majority in aggregate principal amount of any or all series of Debt
Securities to waive such default;
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(c) to cure any ambiguity or to correct or supplement any
provision contained herein, in any supplemental Indenture or in any
Debt Securities of any series that may be defective or inconsistent
with any other provision contained herein, in any supplemental
Indenture or in the Debt Securities of such series; to convey,
transfer, assign, mortgage or pledge any property to or with the
Trustee, or to make such other provisions in regard to matters or
questions arising under this Indenture as shall not adversely affect
the interests of any Holders of Debt Securities of any series;
(d) to modify or amend this Indenture in such a manner as to
permit the qualification of this Indenture or any Indenture
supplemental hereto under the Trust Indenture Act as then in effect,
except that nothing herein contained shall permit or authorize the
inclusion in any Indenture supplemental hereto of the provisions
referred to in Section 316(a)(2) of the Trust Indenture Act;
(e) to add to or change any of the provisions of this
Indenture to change or eliminate any restrictions on the payment of
principal of, or premium, if any, or interest on, Registered
Securities; provided, that any such action shall not adversely affect
the interests of the Holders of Debt Securities of any series in any
material respect or permit or facilitate the issuance of Debt
Securities of any series in uncertificated form;
(f) to comply with Article X;
(g) in the case of any Debt Securities, if any, subordinated
pursuant to Article XII, to make any change in Article XII that would
limit or terminate the benefits applicable to any holder of Senior
Indebtedness (or Representatives therefor) under
Article XII;
(h) to add Guarantees with respect to the Debt Securities or
to secure the Debt Securities;
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(i) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Debt Securities;
provided, however, that any such addition, change or elimination not
otherwise permitted under this Section 9.01 shall (i) neither (A)
apply to any Debt Security of any series created prior to the
execution of such supplemental Indenture and entitled to the benefit
of such provision nor (B) modify the rights of the Holder of any such
Debt Security with respect to such provision or (ii) shall become
effective only when there is no such Debt Security outstanding;
(j) to evidence and provide for the acceptance of appointment
hereunder by a successor or separate Trustee with respect to the Debt
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; and
(k) to establish the form or terms of Debt Securities of any
series as permitted by Sections 2.01 and 2.03.
The Trustee is hereby authorized to join with the Company 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
9.01 may be executed by the Company and the Trustee without the consent of the
Holders of any of the Debt Securities at the time outstanding, notwithstanding
any of the provisions of Section 9.02.
In the case of any Debt Securities subordinated pursuant to Article XII, an
amendment under this Section 9.01 may not make any change that adversely affects
the rights under Article XII of any holder of such Senior Indebtedness then
Outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent to such change.
After an amendment under this Section 9.01 becomes effective, the Company
shall mail to Holders of Debt Securities of each series affected thereby a
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notice briefly describing such amendment. The failure to give such notice to all
such Holders, or any defect therein, shall not impair or affect the validity of
an amendment under this Section 9.01.
SECTION 9.02. Modification of Indenture with Consent of Holders of Debt
Securities. Without notice to any Holder but with the consent (evidenced as
provided in Section 8.01) of the Holders of not less than a majority in
aggregate principal amount of the outstanding Debt Securities of each series
affected by such supplemental Indenture, the Company, when authorized by a
resolution of the Board of Directors, 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 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 Debt Securities of such series; provided, that no such
supplemental Indenture, without the consent of the Holders of each Debt Security
so affected, shall (i) reduce the percentage in principal amount of Debt
Securities of any series whose Holders must consent to an amendment; (ii) reduce
the rate of or extend the time for payment of interest on any Debt Security;
(iii) reduce the principal of or extend the Stated Maturity of any Debt
Security; (iv) reduce the premium payable upon the redemption of any Debt
Security or change the time at which any Debt Security may or shall be redeemed
in accordance with Article III; (v) make any Debt Security payable in Currency
other than that stated in the Debt Security; (vi) in the case of any Debt
Security subordinated pursuant to Article XII, make any change in Article XII
that adversely affects the rights of any Holder under Article XII; (vii) release
any security that may have been granted in respect of the Debt Securities; or
(viii) make any change in Section 6.06 or this Section 9.02.
A supplemental Indenture which changes or eliminates any covenant or other
provision of this Indenture which has been expressly included solely for the
benefit of one or more particular series of Debt Securities or which modifies
the rights of the Holders of Debt Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Debt Securities of any other series.
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Upon the request of the Company, accompanied by a copy of a resolution of
the Board of Directors authorizing the execution of any such supplemental
Indenture, and upon the filing with the Trustee of evidence of the consent of
Holders as aforesaid, the Trustee shall join with the Company 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 Holders under this Section
9.02 to approve the particular form of any proposed supplemental Indenture, but
it shall be sufficient if such consent shall approve the substance thereof.
In the case of any Debt Securities subordinated pursuant to Article XII, an
amendment under this Section 9.02 may not make any change that adversely affects
the rights under Article XII of any holder of such Senior Indebtedness then
Outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent to such change.
After an amendment under this Section 9.02 becomes effective, the Company
shall mail to Holders of Debt Securities of each series affected thereby a
notice briefly describing such amendment. The failure to give such notice to all
such Holders, or any defect therein, shall not impair or affect the validity of
an amendment under this Section 9.02.
SECTION 9.03. Effect of Supplemental Indentures. Upon the execution of any
supplemental Indenture pursuant to the provisions of this Article IX, this
Indenture shall be and 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 Company and the Holders
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 be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental Indenture complies with the provisions of
this Article IX.
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SECTION 9.04. Debt Securities May Bear Notation of Changes by Supplemental
Indentures. Debt Securities of any series authenticated and delivered after the
execution of any supplemental Indenture pursuant to the provisions of this
Article IX may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
Indenture. New Debt Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board of Directors, to any modification of this
Indenture contained in any such supplemental Indenture may be prepared and
executed by the Company, authenticated by the Trustee and delivered in exchange
for the Debt Securities of such series then outstanding. Failure to make the
appropriate notation or to issue a new Debt Security of such series shall not
affect the validity of such amendment.
ARTICLE X
Consolidation, Merger, Sale or Conveyance
SECTION 10.01. Consolidations and Mergers of the Company. The Company shall
not consolidate with or merge with or into any Person, or convey, transfer or
lease all or substantially all its assets, unless: (i) either (a) the Company
shall be the continuing Person in the case of a merger or (b) the resulting,
surviving or transferee Person if other than the Company (the "Successor
Company") shall be a corporation organized and existing under the laws of the
United States, any State thereof or the District of Columbia and the Successor
Company shall expressly assume, by an Indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Debt Securities according to their tenor,
and this Indenture; (ii) immediately after giving effect to such transaction
(and treating any Indebtedness which becomes an obligation of the Successor
Company or any Subsidiary of the Company as a result of such transaction as
having been Incurred by the Successor Company or such Subsidiary at the time of
such transaction), no Default or Event of Default would occur or be continuing;
and (iii) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and such supplemental Indenture (if any) comply with this
Indenture.
SECTION 10.02. Rights and Duties of Successor Corporation. In case of any
consolidation or merger, or conveyance or transfer of the assets of the Company
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as an entirety or virtually as an entirety in accordance with Section 10.01, the
Successor Company shall succeed to and be substituted for the Company, with the
same effect as if it had been named herein as the party of the first part, and
the predecessor corporation shall be relieved of any further obligation under
the Indenture and the Debt Securities. The Successor Company thereupon may cause
to be signed, and may issue either in its own name or in the name of the
Company, any or all the Debt Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of the Successor Company, instead of the Company, and subject to
all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Debt Securities which
previously shall have been signed and delivered by the officers of the Company
to the Trustee for authentication, and any Debt Securities which the Successor
Company thereafter shall cause to be signed and delivered to the Trustee for
that purpose. All the Debt Securities so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Debt Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all such Debt Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale or conveyance such changes
in phraseology and form (but not in substance) may be made in the Debt
Securities appertaining thereto thereafter to be issued as may be appropriate.
ARTICLE XI
Satisfaction and Discharge of Indenture;
Defeasance; Unclaimed Moneys
SECTION 11.01. Applicability of Article. If, pursuant to Section 2.03,
provision is made for the defeasance of Debt Securities of a series, then the
provisions of this Article XI relating to defeasance of Debt Securities shall be
applicable except as otherwise specified pursuant to Section 2.03 for Debt
Securities of such series.
SECTION 11.02. Satisfaction and Discharge of Indenture: Defeasance. (a) If
at any time (i) the Company shall have delivered to the Trustee for cancelation
all Debt Securities of any series theretofore authenticated and delivered (other
than (1) any Debt Securities of such series which shall have been destroyed,
lost or stolen and which shall have been replaced or paid as provided in Section
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2.09 and (2) Debt Securities for whose payment money has theretofore been
deposited in trust and thereafter repaid to the Company as provided in Section
11.05) or (ii) all Debt Securities of such series not theretofore delivered to
the Trustee for cancelation 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 the Company shall deposit with the
Trustee as trust funds the entire amount in the Currency in which such Debt
Securities are denominated (except as otherwise provided pursuant to Section
2.03) sufficient to pay at maturity or upon redemption all Debt Securities of
such series not theretofore delivered to the Trustee for cancelation, including
principal and premium, if any, and interest due or to become due on such date of
maturity or redemption date, as the case may be, and if in either case the
Company shall also pay or cause to be paid all other sums payable hereunder by
the Company, then this Indenture shall cease to be of further effect (except as
to any surviving rights of registration of transfer or exchange of such Debt
Securities herein expressly provided for and rights to receive payments of
principal of, and premium, if any, and interest on, such Debt Securities) with
respect to the Debt Securities of such series, and the Trustee, on demand of the
Company accompanied by an Officers' Certificate and an opinion of counsel and at
the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture.
(b) Subject to Sections 11.02(c), 11.03 and 11.07, the Company at any time
may terminate, with respect to Debt Securities of a particular series, (i) all
its obligations under the Debt Securities of such series and this Indenture with
respect to the Debt Securities of such series ("legal defeasance option") or
(ii) its obligations with respect to the Debt Securities of such series under
clause (ii) of Section 10.01 and the related operation of Section 6.01(d) and
the operation of Sections 6.01(e), (f) and (i) ("covenant defeasance option").
The Company may exercise its legal defeasance option notwithstanding its prior
exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the Debt
Securities of the defeased series may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option, payment of the
Debt Securities of the defeased series may not be accelerated because of an
78
Event of Default specified in Sections 6.01(d), (e), (f) and (i) (except to the
extent covenants or agreements referenced in such Sections remain applicable).
Upon satisfaction of the conditions set forth herein and upon request of
the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's obligations in
Sections 2.07, 2.09, 4.02, 4.04, 5.01, 7.06, 7.10, 11.05, 11.06 and 11.07 shall
survive until the Debt Securities of the defeased series have been paid in full.
Thereafter, the Company's obligations in Sections 7.06, 11.05 and 11.06 shall
survive.
SECTION 11.03. Conditions of Defeasance. The Company may exercise its legal
defeasance option or its covenant defeasance option with respect to Debt
Securities of a particular series only if:
(1) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations for the payment of principal of,
and premium, if any, and interest on, the Debt Securities of such
series to maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay the principal, premium
and interest when due on all the Debt Securities of such series to
maturity or redemption, as the case may be;
(3) 91 days pass after the deposit is made and during the
91-day period no Default specified in Section 6.01(g) or (h) with
respect to the Company occurs which is continuing at the end of the
period;
(4) no Default has occurred and is continuing on the date of
such deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other
agreement binding on the Company and, if the Debt Securities of such
series are subordinated pursuant to Article XII, is not prohibited by
Article XII;
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(6) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not
constitute, or is qualified as, a regulated investment company under
the Investment Company Act of 1940;
(7) in the event of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from the Internal Revenue Service a
ruling, or (ii) since the date of this Indenture there has been a
change in the applicable Federal income tax law, in either case of the
effect that, and based thereon such Opinion of Counsel shall confirm
that, the Holders of Debt Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred;
(8) in the event of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of Debt Securities of such series will not
recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not
occurred; and
(9) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Debt Securities of
such series as contemplated by this Article XI have been complied with.
Before or after a deposit, the Company may make arrangements satisfactory
to the Trustee for the redemption of Debt Securities of such series at a future
date in accordance with Article III.
SECTION 11.04. Application of Trust Money. The Trustee shall hold in trust
money or U.S. Government Obligations deposited with it pursuant to this Article
XI. It shall apply the deposited money and the money from U.S. Government
Obligations through any paying agent and in accordance with this Indenture to
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the payment of principal of, and premium, if any, and interest on, the Debt
Securities of the defeased series. In the event the Debt Securities of the
defeased series are subordinated pursuant to Article XII, money and securities
so held in trust are not subject to Article XII.
SECTION 11.05. Repayment to Company. The Trustee and any paying agent shall
promptly turn over to the Company upon request any excess money or securities
held by them at any time.
Subject to any applicable abandoned property law, the Trustee and any
paying agent shall pay to the Company upon request any money held by them for
the payment of principal, premium or interest that remains unclaimed for two
years, and, thereafter, Holders entitled to such money must look to the Company
for payment as general creditors.
SECTION 11.06. Indemnity for U.S. Government Obligations. The Company shall
pay and shall indemnify the Trustee and the Holders against any tax, fee or
other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
SECTION 11.07. Reinstatement. If the Trustee or any paying agent is unable
to apply any money or U.S. Government Obligations in accordance with this
Article XI by reason of any legal proceeding or by reason of any order or
judgment of any court or government authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Debt Securities of the defeased series shall be revived and
reinstated as though no deposit had occurred pursuant to this Article XI until
such time as the Trustee or any paying agent is permitted to apply all such
money or U.S. Government Obligations in accordance with this Article XI.
ARTICLE XII
Subordination of Debt Securities
SECTION 12.01. Applicability of Article; Agreement To Subordinate. The
provisions of this Article XII shall be applicable to the Debt Securities of any
series (Debt Securities of such series referred to in this Article XII as
"Subordinated Debt Securities") designated, pursuant to Section 2.03, as
subordinated to Senior Indebtedness. Each Holder by accepting a Subordinated
Debt Security agrees that the Indebtedness evidenced by such Subordinated Debt
81
Security is subordinated in right of payment, to the extent and in the manner
provided in this Article XII, to the prior payment of all Senior Indebtedness
and that the subordination is for the benefit of and enforceable by the holders
of Senior Indebtedness. All provisions of this Article XII shall be subject to
Section 12.12.
SECTION 12.02. Liquidation, Dissolution, Bankruptcy. Upon any payment or
distribution of the assets of the Company to creditors upon a total or partial
liquidation or a total or partial dissolution of the Company or in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property:
(1) holders of Senior Indebtedness shall be entitled to
receive payment in full in cash of the Senior Indebtedness (including
interest (if any), accruing on or after the commencement of a
proceeding in bankruptcy, whether or not allowed as a claim against the
Company in such bankruptcy proceeding) before Holders of Subordinated
Debt Securities shall be entitled to receive any payment of principal
of, or premium, if any, or interest on, the Subordinated Debt
Securities; and
(2) until the Senior Indebtedness is paid in full, any
distribution to which Holders of Subordinated Debt Securities would be
entitled but for this Article XII shall be made to holders of Senior
Indebtedness as their interests may appear, except that such Holders
may receive shares of stock and any debt securities that are
subordinated to Senior Indebtedness to at least the same extent as the
Subordinated Debt Securities.
SECTION 12.03. Default on Senior Indebtedness. The Company may not pay the
principal of, or premium, if any, or interest on, the Subordinated Debt
Securities or make any deposit pursuant to Article XI and may not repurchase,
redeem or otherwise retire (except, in the case of Subordinated Debt Securities
that provide for a mandatory sinking fund pursuant to Section 3.04, by the
delivery of Subordinated Debt Securities by the Company to the Trustee pursuant
to the first paragraph of Section 3.05) any Debt Securities (collectively, "pay
the Subordinated Debt Securities") if (i) any principal, premium or interest in
respect of Senior Indebtedness is not paid within any applicable grace period
(including at maturity) or (ii) any other default on Senior Indebtedness occurs
82
and the maturity of such Senior Indebtedness is accelerated in accordance with
its terms unless, in either case, (x) the default has been cured or waived and
any such acceleration has been rescinded or (y) such Senior Indebtedness has
been paid in full in cash; provided, however, that the Company may pay the
Subordinated Debt Securities without regard to the foregoing if the Company and
the Trustee receive written notice approving such payment from the
Representative of each issue of Designated Senior Indebtedness. During the
continuance of any default (other than a default described in clause (i) or (ii)
of the preceding sentence) with respect to any 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, the Company may not pay the
Subordinated Debt Securities for a period (a "Payment Blockage Period")
commencing upon the receipt by the Company and the Trustee of written notice of
such default from the Representative of any Designated Senior Indebtedness
specifying an election to effect a Payment Blockage Period (a "Blockage Notice")
and ending 179 days thereafter (or earlier if such Payment Blockage Period is
terminated (i) by written notice to the Trustee and the Company from the Person
or Persons who gave such Blockage Notice, (ii) by repayment in full in cash of
such Designated Senior Indebtedness or (iii) because the default giving rise to
such Blockage Notice is no longer continuing). Notwithstanding the provisions
described in the immediately preceding sentence (but subject to the provisions
contained in the first sentence of this Section 12.03), unless the holders of
such Designated Senior Indebtedness or the Representative of such holders shall
have accelerated the maturity of such Designated Senior Indebtedness, the
Company may resume payments on the Subordinated Debt Securities after such
Payment Blockage Period. Not more than one Blockage Notice may be given in any
consecutive 360-day period, irrespective of the number of defaults with respect
to any number of issues of Senior Indebtedness during such period; provided,
however, that if any Blockage Notice within such 360-day period is given by or
on behalf of any holders of Designated Senior Indebtedness (other than the Bank
Indebtedness), the Representative of the Bank Indebtedness may give another
Blockage Notice within such period; provided further, however, that in no event
may the total number of days during which any Payment Blockage Period or Periods
is in effect exceed 179 days in the aggregate during any 360 consecutive day
period. For purposes of this Section 12.03, no default or event of default which
existed or was continuing on the date of the commencement of any Payment
Blockage Period with respect to the Senior Indebtedness initiating such Payment
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Blockage Period shall be, or be made, the basis of the commencement of a
subsequent Payment Blockage Period by the Representative of such Senior
Indebtedness, whether or not within a period of 360 consecutive days, unless
such default or event of default shall have been cured or waived for a period of
not less than 90 consecutive days.
SECTION 12.04. Acceleration of Payment of Debt Securities. If payment of
the Subordinated Debt Securities is accelerated because of an Event of Default,
the Company or the Trustee shall promptly notify the holders of the Designated
Senior Indebtedness (or their Representatives) of the acceleration.
SECTION 12.05. When Distribution Must Be Paid Over. If a distribution is
made to Holders of Subordinated Debt Securities that because of this Article XII
should not have been made to them, the Holders who receive such distribution
shall hold it in trust for holders of Senior Indebtedness and pay it over to
them as their interests may appear.
SECTION 12.06. Subrogation. After all Senior Indebtedness is paid in full
and until the Subordinated Debt Securities are paid in full, Holders thereof
shall be subrogated to the rights of holders of Senior Indebtedness to receive
distributions applicable to Senior Indebtedness. A distribution made under this
Article XII to holders of Senior Indebtedness which otherwise would have been
made to Holders of Subordinated Debt Securities is not, as between the Company
and such Holders, a payment by the Company on Senior Indebtedness.
SECTION 12.07. Relative Rights. This Article XII defines the relative
rights of Holders of Subordinated Debt Securities and holders of Senior
Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders of either
Subordinated Debt Securities or Debt Securities, the obligation of the
Company, which is absolute and unconditional, to pay principal of, and
premium, if any, and interest on, the Subordinated Debt Securities and
the Debt Securities in accordance with their terms; or
(2) prevent the Trustee or any Holder of either Subordinated
Debt Securities or Debt Securities from exercising its available
remedies upon a Default, subject to the rights of holders of Senior
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Indebtedness to receive distributions otherwise payable to Holders of
Subordinated Debt Securities.
SECTION 12.08. Subordination May Not Be Impaired by Company. No right of
any holder of Senior Indebtedness to enforce the subordination of the
Indebtedness evidenced by the Subordinated Debt Securities shall be impaired by
any act or failure to act by the Company or by its failure to comply with this
Indenture.
SECTION 12.09. Rights of Trustee and Paying Agent. Notwithstanding Section
12.03, the Trustee or any paying agent may continue to make payments on
Subordinated Debt Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two business days prior to the date of such payment, a responsible
officer of the Trustee receives notice satisfactory to it that payments may not
be made under this Article XII. The Company, the Registrar, any paying agent, a
Representative or a holder of Senior Indebtedness may give the notice; provided,
however, that, if an issue of Senior Indebtedness has a Representative, only the
Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. The
Registrar and any paying agent may do the same with like rights. The Trustee
shall be entitled to all the rights set forth in this Article XII with respect
to any Senior Indebtedness which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness; and nothing in Article VII
shall deprive the Trustee of any of its rights as such holder. Nothing in this
Article XII shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.06.
SECTION 12.10. Distribution or Notice to Representative. Whenever a
distribution is to be made or a notice given to holders of Senior Indebtedness,
the distribution may be made and the notice given to their Representative (if
any).
SECTION 12.11. Article XII Not to Prevent Defaults or Limit Right to
Accelerate. The failure to make a payment pursuant to the Debt Securities by
reason of any provision in this Article XII shall not be construed as preventing
the occurrence of a Default. Nothing in this Article XII shall have any effect
on the right of the Holders or the Trustee to accelerate the maturity of either
the Subordinated Debt Securities or the Debt Securities, as the case may be.
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SECTION 12.12. Trust Moneys Not Subordinated. Notwithstanding anything
contained herein to the contrary, payments from money or the proceeds of U.S.
Government Obligations held in trust under Article XI by the Trustee for the
payment of principal of, and premium, if any, and interest on, the Subordinated
Debt Securities or the Debt Securities shall not be subordinated to the prior
payment of any Senior Indebtedness or subject to the restrictions set forth in
this Article XII, and none of the Holders thereof shall be obligated to pay over
any such amount to the Company or any holder of Senior Indebtedness of the
Company or any other creditor of the Company.
SECTION 12.13. Trustee Entitled to Rely. Upon any payment or distribution
pursuant to this Article XII, the Trustee and the Holders shall be entitled to
rely (i) upon any order or decree of a court of competent jurisdiction in which
any proceedings of the nature referred to in Section 12.02 are pending, (ii)
upon a certificate of the liquidating trustee or agent or other Person making
such payment or distribution to the Trustee or to such Holders or (iii) upon the
Representatives for the holders of Senior Indebtedness for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of the Senior Indebtedness and other Indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
XII. In the event that the Trustee determines, in good faith, that evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article XII, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and other facts pertinent to the rights of such
Person under this Article XII, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment. The provisions of Sections
7.01 and 7.02 shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article XII.
SECTION 12.14. Trustee to Effectuate Subordination. Each Holder by
accepting a Subordinated Debt Security authorizes and directs the Trustee on his
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behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Holders of Subordinated Debt Securities
and the holders of Senior Indebtedness as provided in this Article XII and
appoints the Trustee as attorney-in-fact for any and all such purposes.
SECTION 12.15. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Indebtedness and shall not be liable to any such holders if it shall
mistakenly pay over or distribute to Holders of Subordinated Debt Securities or
the Company or any other Person, money or assets to which any holders of Senior
Indebtedness shall be entitled by virtue of this Article XII or otherwise.
SECTION 12.16. Reliance by Holders of Senior Indebtedness on Subordination
Provisions. Each Holder by accepting a Subordinated Debt Security acknowledges
and agrees that the foregoing subordination provisions are, and are intended to
be, an inducement and a consideration to each holder of any Senior Indebtedness,
whether such Senior Indebtedness was created or acquired before or after the
issuance of the Subordinated Debt Securities, to acquire and continue to hold,
or to continue to hold, such Senior Indebtedness and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Senior Indebtedness.
ARTICLE XIII
Miscellaneous Provisions
SECTION 13.01. Successors and Assigns of Company Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Company or the Trustee shall bind its successors and
assigns, whether so expressed or not.
SECTION 13.02. Acts of Board, Committee or Officer of Successor Company
Valid. Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any Successor Company.
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SECTION 13.03. Required Notices or Demands. Except as otherwise expressly
provided in this Indenture, 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 to or on the Company may be given or served by being deposited
postage prepaid in a post office letter box in the United States addressed
(until another address is filed by the Company with the Trustee) as follows:
Denbury Resources Inc., Suite 3000, 5100 Tennyson Pkwy., Plano, Texas 75025,
Attn: Phil Rykhoek. Except as otherwise expressly provided in this Indenture,
any notice, direction, request or demand by the Company or by any Holder to or
upon the Trustee may be given or made, for all purposes, by being deposited,
postage prepaid, in a post office letter box in the United States addressed to
the corporate trust office of the Trustee initially at [ ], [ ]. The Company or
the Trustee by notice to the other may designate additional or different
addresses for subsequent notices or communications.
Any notice required or permitted to a Registered Holder by the Company or
the Trustee pursuant to the provisions of this Indenture shall be deemed to be
properly mailed by being deposited postage prepaid in a post office letter box
in the United States addressed to such Holder at the address of such Holder as
shown on the Debt Security Register. Any report pursuant to Section 313 of the
Trust Indenture Act shall be transmitted in compliance with subsection (c)
therein.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, then such
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose thereunder.
In the event of suspension of publication of any Authorized Newspaper or by
reason of any other cause it shall be impracticable to give notice by
publication, then such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
Failure to mail a notice or communication to a Holder or any defect in it
or any defect in any notice by publication as to a Holder shall not affect the
sufficiency of such notice with respect to other Holders. If a notice or
communication is mailed or published in the manner provided above, it is
conclusively presumed duly given.
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SECTION 13.04. Indenture and Debt Securities to Be Construed in Accordance
with the Laws of the State of New York. This Indenture and each Debt Security
shall be deemed to be New York contracts, and for all purposes shall be
construed in accordance with the laws of said State (without reference to
principles of conflicts of law).
SECTION 13.05. Officers' Certificate and Opinion of Counsel to Be Furnished
upon Application or Demand by the Company. Upon any application or demand by the
Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company 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 document 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 and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include (1) a statement that the Person making such
certificate or opinion has read such covenant or condition, (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based, (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 13.06. Payments Due on Legal Holidays. In any case where the date
of maturity of interest on or principal of and premium, if any, on the Debt
Securities of a series or the date fixed for redemption or repayment of any Debt
Security or the making of any sinking fund payment shall not be a business day
at any Place of Payment for the Debt Securities of such series, then payment of
interest or principal and premium, if any, or the making of such sinking fund
payment need not be made on such date at such Place of Payment, but may be made
on the next succeeding business day at such Place of Payment with the same force
and effect as if made on the date of maturity or the date fixed for redemption,
89
and no interest shall accrue for the period after such date. If a record date is
not a business day, the record date shall not be affected.
SECTION 13.07. Provisions Required by Trust Indenture Act to Control. 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 in this Indenture by any of Sections 310 to 318, inclusive, of the
Trust Indenture Act, such required provision shall control.
SECTION 13.08. Computation of Interest on Debt Securities. Interest, if
any, on the Debt Securities shall be computed on the basis of a 360-day year of
twelve 30-day months, except as may otherwise be provided pursuant to Section
2.03.
SECTION 13.09. Rules by Trustee, Paying Agent and Registrar. The Trustee
may make reasonable rules for action by or a meeting of Holders. The Registrar
and any paying agent may make reasonable rules for their functions.
SECTION 13.10. No Recourse Against Others. An incorporator or any past,
present or future director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Debt Securities or this Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Debt
Security, each Holder shall waive and release all such liability. The waiver and
release shall be part of the consideration for the issue of the Debt Securities.
SECTION 13.11. Severability. In case any provision in this Indenture, the
Debt Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 13.12. Effect of Headings. The article and section headings herein
and in the Table of Contents are for convenience only and shall not affect the
construction hereof.
SECTION 13.13. Indenture May Be Executed in 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.
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The Trustee hereby accepts the trusts in this Indenture upon the terms and
conditions herein set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly signed as of the date first written above.
Denbury Resources Inc.
By:
------------------------------
Name:
------------------------------
Title: ------------------------------
Trustee
By:
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Name:
------------------------------
Title: ------------------------------
Cusip No.
--------
DENBURY RESOURCES INC.
[ ]% NOTE
DUE [ ]
DENBURY RESOURCES INC.
Denbury Resources Inc., a Delaware corporation (the "Company") promises to
pay to [ ] or registered assigns, the principal sum [sum indicated on Schedule A
hereof] [ of Dollars] on [ ], [ ].
Interest Payment Dates: [ ] and [ ], commencing [ ], [ ]
Record Date: [ ] and [ ]
Reference is hereby made to the further provisions of this [ ] Note set
forth on the reverse hereof which further provisions shall for all purposes have
the same effect as if set forth at this place.
IN WITNESS WHEREOF, Denbury Resources Inc. has caused this [ ] Note to be
signed manually or by facsimile by its duly authorized officer and a facsimile
of its corporate seal to be affixed hereto or imprinted thereon.
Dated:
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DENBURY RESOURCES INC.
By:
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Name:
-----------------------------------
Title:
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TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the [ ] Notes due [ ] described in the within-mentioned
Indenture
[ ], as Trustee:
By:
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Name:
-----------------------------------
Title:
-----------------------------------