EXHIBIT 4.3
FORM OF INDENTURE FOR SUBORDINATED DEBT SECURITIES
TEEKAY LNG PARTNERS, L.P.
AND
TEEKAY LNG FINANCE CORP.,
AS ISSUERS,
AND
TEEKAY LNG OPERATING L.L.C.,
AFRICAN SPIRIT L.L.C.,
ASIAN SPIRIT L.L.C.,
EUROPEAN SPIRIT L.L.C.,
TEEKAY LUXEMBOURG S.A.R.L.,
TEEKAY SPAIN, S.L.,
TEEKAY II IBERIA S.L.,
TEEKAY SHIPPING SPAIN, S.L.,
NAVIERA TEEKAY GAS, S.L.,
NAVIERA TEEKAY GAS II, S.L.,
NAVIERA TEEKAY GAS III, S.L.
AND
NAVIERA TEEKAY GAS IV, S.L.
AS POTENTIAL SUBSIDIARY GUARANTORS,
AND
THE BANK OF NEW YORK,
AS TRUSTEE
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SUBORDINATED INDENTURE
DATED AS OF _______, 20__
DEBT SECURITIES
(UNLIMITED)
TABLE OF CONTENTS
ARTICLE I. Definitions................................................... 2
SECTION 1.01. Certain Terms Defined................................... 2
SECTION 1.02. Other Definitions....................................... 12
SECTION 1.03. Incorporation by Reference of Trust Indenture Act....... 12
SECTION 1.04. Rules of Construction................................... 13
ARTICLE II. Debt Securities.............................................. 13
SECTION 2.01. Forms Generally......................................... 13
SECTION 2.02. Form of Trustee's Certificate of Authentication......... 14
SECTION 2.03. Principal Amount; Issuable in Series.................... 14
SECTION 2.04. Execution of Debt Securities............................ 17
SECTION 2.05. Authentication and Delivery of Debt Securities.......... 18
SECTION 2.06. Denomination of Debt Securities......................... 19
SECTION 2.07. General Provisions for Registration of
Transfer and Exchange................................... 19
SECTION 2.08. Temporary Debt Securities............................... 21
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities.... 22
SECTION 2.10. Cancellation of Surrendered Debt Securities............. 23
SECTION 2.11. Provisions of the Indenture and Debt Securities
for the Sole Benefit of the Parties and the Holders..... 23
SECTION 2.12. Payment of Interest; Rights Preserved................... 23
SECTION 2.13. Securities Denominated in Foreign Currencies............ 24
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SECTION 2.14. Wire Transfers.......................................... 24
SECTION 2.15. Securities Issuable in the Form of a Global Security.... 25
SECTION 2.16. Medium Term Securities.................................. 27
SECTION 2.17. Defaulted Interest...................................... 28
SECTION 2.18. Judgments............................................... 29
SECTION 2.19. CUSIP Numbers........................................... 30
ARTICLE III. Redemption of Debt Securities............................... 30
SECTION 3.01. Applicability of Article................................ 30
SECTION 3.02. Notice of Redemption; Selection of Debt Securities...... 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......................................... 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 Trustee.. 36
SECTION 4.04. Duties of Paying Agents, etc............................ 37
SECTION 4.05. Statement by Officers as to Default..................... 38
SECTION 4.06. Corporate, Partnership or Limited Liability
Company Existence....................................... 38
SECTION 4.07. Calculation of Original Issue Discount.................. 39
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SECTION 4.08. Stay, Extension and Usury Laws.......................... 39
ARTICLE V. Holders' Lists and Reports by the Issuers and the Trustee..... 39
SECTION 5.01. Issuers to Furnish Trustee Information as to Names and
Addresses of Holders; Preservation of Information....... 39
SECTION 5.02. Communications to Holders; Meetings of Holders.......... 40
SECTION 5.03. Reports by Issuers...................................... 41
SECTION 5.04. Reports by Trustee...................................... 41
SECTION 5.05. Record Dates for Action by Holders...................... 42
ARTICLE VI. Remedies of the Trustee And Holders in Event of Default...... 42
SECTION 6.01. Events of Default....................................... 42
SECTION 6.02. Collection of Indebtedness by Trustee, etc.............. 44
SECTION 6.03. Application of Moneys Collected by Trustee.............. 46
SECTION 6.04. Limitation on Suits by Holders.......................... 47
SECTION 6.05. Remedies Cumulative; Delay or Omission in Exercise of
Rights Not a Waiver of Default.......................... 48
SECTION 6.06. Rights of Holders of Majority in Principal Amount of
Debt Securities to Direct Trustee and to Waive Default.. 48
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but May
Withhold Such Notice in Certain Circumstances........... 49
SECTION 6.08. Requirement of an Undertaking to Pay Costs in Certain
Suits Under the Indenture or Against the Trustee........ 49
ARTICLE VII. Concerning the Trustee...................................... 50
SECTION 7.01. Certain Duties and Responsibilities..................... 50
SECTION 7.02. Certain Rights of Trustee............................... 51
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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......................................... 53
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............................. 57
SECTION 7.10. Eligibility; Disqualification........................... 57
SECTION 7.11. Preferential Collection of Claims Against Issuers....... 57
SECTION 7.12. Compliance with Tax Laws................................ 58
ARTICLE VIII. Concerning the Holders..................................... 58
SECTION 8.01. Evidence of Action by Holders........................... 58
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..... 59
ARTICLE IX. Amendment, Supplement and Waiver............................. 60
SECTION 9.01. Without Consent of Holders of Debt Securities........... 60
SECTION 9.02. With Consent of Holders of Debt Securities.............. 61
SECTION 9.03. Effect of Supplemental Indentures....................... 63
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SECTION 9.04. Debt Securities May Bear Notation of Changes by
Supplemental Indentures................................. 63
ARTICLE X. Consolidation, Merger, Sale or Conveyance..................... 64
SECTION 10.01. Consolidations and Mergers of the Issuers............... 64
SECTION 10.02. Rights and Duties of Successor Company.................. 65
ARTICLE XI. Discharge of Indenture....................................... 65
SECTION 11.01. Termination of the Issuers' and the Subsidiary
Guarantors' Obligations................................. 65
SECTION 11.02. Application of Trust Money.............................. 70
SECTION 11.03. Repayment to Issuers or Subsidiary Guarantors........... 70
SECTION 11.04. Indemnity for U.S. Government Obligations............... 70
SECTION 11.05. Reinstatement........................................... 70
ARTICLE XII. Guarantee................................................... 71
SECTION 12.01. Unconditional Guarantee................................. 71
SECTION 12.02. Execution and Delivery of Guarantee..................... 73
SECTION 12.03. Limitation on Liability of the Subsidiary Guarantors.... 74
SECTION 12.04. Release of Subsidiary Guarantors from Guarantee......... 74
SECTION 12.05. Contribution............................................ 75
ARTICLE XIII. Miscellaneous Provisions................................... 75
SECTION 13.01. Successors and Assigns of Issuers Bound by Indenture.... 75
SECTION 13.02. Acts of Board, Committee or Officer of Successor
Company Valid........................................... 75
SECTION 13.03. Required Notices or Demands............................. 76
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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....... 77
SECTION 13.05. Officers' Certificate and Opinion of Counsel to Be
Furnished Upon Application or Demand by the Issuers..... 77
SECTION 13.06. Payments Due on Legal Holidays.......................... 78
SECTION 13.07. Provisions Required by Trust Indenture Act to Control... 78
SECTION 13.08. Computation of Interest on Debt Securities.............. 78
SECTION 13.09. Rules by Trustee, Paying Agent and Registrar............ 78
SECTION 13.10. No Recourse Against Others.............................. 79
SECTION 13.11. Severability............................................ 79
SECTION 13.12. Effect of Headings...................................... 79
SECTION 13.13. Indenture May Be Executed in Counterparts............... 79
SECTION 13.14. Consent to Service; Jurisdiction........................ 79
SECTION 13.15. Waiver of Trial by Jury................................. 80
ARTICLE XIV. Subordination of Debt Securities and Guarantees............. 80
SECTION 14.01. Applicability of Article; Agreement to Subordinate...... 80
SECTION 14.02. Liquidation, Dissolution, Bankruptcy.................... 81
SECTION 14.03. Default on Senior Indebtedness.......................... 81
SECTION 14.04. Acceleration of Payment of Debt Securities.............. 83
SECTION 14.05. When Distribution Must Be Paid Over..................... 83
SECTION 14.06. Subrogation............................................. 83
SECTION 14.07. Relative Rights......................................... 83
SECTION 14.08. Subordination May Not Be Impaired by Issuers or
Subsidiary Guarantors................................... 84
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SECTION 14.09. Rights of Trustee and Paying Agent...................... 84
SECTION 14.10. Distribution or Notice to Representative................ 84
SECTION 14.11. Article XIV Not to Prevent Defaults or Limit Right to
Accelerate.............................................. 84
SECTION 14.12. Trust Moneys Not Subordinated........................... 85
SECTION 14.13. Trustee Entitled to Rely................................ 85
SECTION 14.14. Trustee to Effectuate Subordination..................... 85
SECTION 14.15. Trustee Not Fiduciary for Holders of Senior Indebtedness 86
SECTION 14.16. Reliance by Holders of Senior Indebtedness on
Subordination Provisions................................ 86
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THIS SUBORDINATED INDENTURE, dated as of ______, 20__, is among TEEKAY LNG
PARTNERS, L.P., a Marshall Islands limited partnership (the "Partnership"),
TEEKAY LNG FINANCE CORP., a Marshall Islands corporation ("Finance Corp."),
TEEKAY LNG OPERATING L.L.C., a Marshall Islands limited liability company (the
"Operating Company"), AFRICAN SPIRIT L.L.C., a Marshall Islands limited
liability company ("African Spirit"), ASIAN SPIRIT L.L.C., a Marshall Islands
limited liability company ("Asian Spirit"), EUROPEAN SPIRIT L.L.C., a Marshall
Islands limited liability company ("European Spirit"), TEEKAY LUXEMBOURG
S.A.R.L. ("Luxco"), a Luxembourg company, TEEKAY SPAIN, S.L., a Spanish company
("Teekay Spain"), TEEKAY II IBERIA S.L., a Spanish company ("Iberia"), TEEKAY
SHIPPING SPAIN, S.L., a Spanish company ("Teekay Shipping Spain"), NAVIERA
TEEKAY GAS, S.L., a Spanish company ("Naviera I"), NAVIERA TEEKAY GAS II, S.L.,
a Spanish company ("Naviera II"), NAVIERA TEEKAY GAS III, S.L., a Spanish
company ("Naviera III"), and NAVIERA TEEKAY GAS IV, S.L., a Spanish company
("Naviera IV" and, together with Operating Company, African Spirit, Asian
Spirit, European Spirit, Luxco, Teekay Spain, Iberia, Teekay Shipping Spain,
Naviera I, Naviera II and Naviera III, collectively the "Potential Subsidiary
Guarantors"), and THE BANK OF NEW YORK, a New York banking corporation (the
"Trustee").
RECITALS
WHEREAS, Teekay GP L.L.C., a Marshall Islands limited liability company
(the "General Partner"), as general partner of the Partnership, Finance Corp.
and the Potential Subsidiary Guarantors have duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of the
debentures, notes, bonds or other evidences of indebtedness to be issued in one
or more series in an unlimited aggregate principal amount (herein collectively
called the "Debt Securities"), and related Guarantees, if any, of Debt
Securities, as provided in this Indenture.
WHEREAS, The Partnership, Finance Corp. and the Potential Subsidiary
Guarantors are members of the same consolidated group of companies. The
Potential Subsidiary Guarantors will derive direct and indirect economic benefit
from the issuance of the Debt Securities. Accordingly, each Potential Subsidiary
Guarantor has duly authorized the execution and delivery of this Indenture in
light of the possibility that such Potential Subsidiary Guarantor will provide
its full, unconditional and joint and several guarantee of a series of Debt
Securities to the extent provided in or pursuant to this Indenture.
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Issuers, in accordance with its terms, have been done.
AGREEMENT
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for good and valuable consideration, the sufficiency of which
is hereby acknowledged, the Issuers and the Trustee hereby agree with each
other, for the equal and proportionate 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
the Indenture and of any Indenture supplemental hereto shall have the respective
meanings specified in this Section 1.01. All other terms used in the 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 the Securities Act as in force as of the
date of original execution of the 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 specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing. The Trustee may request and may conclusively rely upon an Officers'
Certificate to determine whether any Person is an Affiliate of any specified
Person.
"Agent" means any Registrar or paying agent.
"Bankruptcy Law" means Title 11, U.S. Code, as amended from time to time,
or any similar foreign, federal or state law for the relief of debtors.
"Blockage Notice" has the meaning set forth in Section 14.03.
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"Board of Directors" means (a) with respect to the Partnership, the board
of directors of the General Partner, and (b) with respect to Finance Corp., its
board of directors, or, in each case, with respect to any determination or
resolution required or permitted to be made hereunder, any duly authorized
committee or subcommittee of such board. All references in the Indenture to
"Board of Directors" shall be deemed to refer to the Board of Directors of the
Partnership, unless otherwise expressly indicated or the context otherwise
requires.
"Board Resolution" means a copy of a resolution certified by the
appropriate person to have been duly adopted by the Board of Directors or any
applicable committee thereof and to be in full force and effect on the date of
such certification.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in the Borough of Manhattan,
the City of New York, New York, or the city in which the Corporate Trust Office
of the Trustee is located, are authorized or obligated by law or executive order
to close.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, and any successor statute.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of the Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Corporate Trust Office of the Trustee" means the principal corporate trust
office of the Trustee, at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of the
Indenture is located at 101 Barclay Street, Fl. 21W, New York, New York 10286,
Phone: 212-815-5915, Fax: 212-815-58003, Attention: Corporate Trust
Administration, and as may be located at such other address as the Trustee may
give notice to the Issuers and the Subsidiary Guarantors.
"Currency" means Dollars or Foreign Currency.
"Custodian" means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
"Debt" of any Person at any date means any obligation created or assumed by
such Person for the repayment of borrowed money and any guarantee thereof.
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"Debt Security" or "Debt Securities" has the meaning stated in the first
recital of the Indenture and more particularly means any debt security or debt
securities, as the case may be, of any series authenticated and delivered under
the Indenture.
"Default" means any event, act or condition that is, or with the passage of
time or the giving of notice or both would be, an Event of Default.
"Depositary" means, unless otherwise specified by the Issuers 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, as to any series of Debt
Securities, any Senior Indebtedness identified as Designated Senior Indebtedness
in the Board Resolution or supplemental Indenture setting forth the terms of
such series.
"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.
"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 Issuers) in New York, New York at approximately
11:00 A.M. (New York time) on the date two Business Days prior to such
determination.
"Equity Interests" means:
(1) in the case of a corporation, capital stock;
(2) in the case of an association or a business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
capital stock;
(3) in the case of a partnership or limited liability company, partnership
or membership interests (whether general or limited);
(4) any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of assets of,
the issuing Person; and
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(5) all warrants, options or other rights to acquire any of the interests
described in clauses (1) through (4) above (but excluding any debt security that
is convertible into, or exchangeable for, any of the interests described in
clauses (1) through (4) above).
"Event of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as amended,
or any successor statute.
"Finance Corp." means Finance Corp., a Marshall Islands corporation, and,
subject to the provisions of Article X, shall also include its successors and
assigns.
"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 accounting principles generally accepted in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other Person as have been approved by a significant segment
of the accounting profession, which are in effect from time to time.
"General Partner" means Teekay GP L.L.C., and its successors and permitted
assigns as general partner of the Partnership.
"Global Security" means, with respect to any series of Debt Securities
issued hereunder, a Debt Security that is executed by the Issuers and
authenticated and delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction, all in accordance with the Indenture, or the
applicable Board Resolution 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 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.
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"guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any Debt or other obligation of any other
Person and any obligation, direct or indirect, contingent or otherwise, of such
Person (a) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Debt or other obligation of such other Person (whether arising
by virtue of partnership arrangements, or by agreement to keep-well, to purchase
assets, goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (b) entered into for purposes of assuring
in any other manner the obligee of such Debt 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.
"Guarantee" has the meaning assigned thereto in Section 12.01.
"Holder," "Holder of Debt Securities" or other similar terms mean, with
respect to a Registered Security, the Registered Holder.
"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; provided, however, that, if at any time more than one
Person is acting as Trustee under this instrument, "Indenture" shall mean, with
respect to any one or more series of Debt Securities for which such Person is
Trustee, this instrument as originally executed or, if amended or supplemented
as herein provided, as so amended or supplemented, and shall include the forms
and terms of the particular series of Debt Securities for which such Person is
Trustee established as contemplated by Section 2.03, exclusive, however, of any
provisions or terms which relate solely to other series of Debt Securities for
which such Person is not Trustee, regardless of when such provisions or terms
were adopted, and exclusive of any provisions or terms adopted by means of one
or more supplemental indentures hereto executed and delivered after such Person
had become such Trustee but to which such Person, as such Trustee, was not a
party.
"Issuer Order" means a written order signed in the name of the applicable
Issuer or Issuers and any applicable Subsidiary Guarantors by two Officers of
the General Partner and delivered to the Trustee.
"Issuers" means the Partnership and Finance Corp., and, subject to the
provisions of Article X, shall also include their successors and permitted
assigns.
"Lien" means, with respect to any asset, any mortgage, lien (statutory or
otherwise), pledge, charge, security interest, hypothecation, assignment for
security,
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claim, preference, priority or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement or any lease
in the nature thereof, any option or other agreement to grant a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statute) of any jurisdiction, other
than a precautionary financing statement respecting a lease not intended as a
security agreement.
"Officer" means the Chairman of the Board, the Chief Executive Officer, any
Vice President, the Chief Financial Officer, Treasurer, Secretary, any Assistant
Treasurer or any Assistant Secretary of a Person.
"Officers' Certificate" means a certificate signed by two Officers of a
Person. 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 Issuers or the Subsidiary Guarantors, as applicable (which counsel may
be an employee of the Issuers or the Subsidiary Guarantors or outside counsel
for the Issuers or the Subsidiary Guarantors). 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.
"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 the Indenture, except:
(1) Debt Securities of that series theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(2) 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 Partnership or Finance Corp.) in trust or set aside
and segregated in trust by the Issuers (if either of the Issuers shall act as
its own paying agent) for the holders of such Debt Securities; provided,
however, that, if such Debt Securities are to be redeemed, notice of such
redemption has been duly given pursuant to the Indenture or provision therefore
satisfactory to the Trustee has been made; and
(3) 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
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authenticated and delivered pursuant to the 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
Issuers; 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 Issuers or any other obligor upon the
Debt Securities or any Subsidiary of the Issuers 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
a Responsible Officer of the Trustee actually 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 one of the Issuers or any other obligor upon the Debt
Securities or a Subsidiary of the Issuers or of such other obligor. In
determining whether the Holders of the 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.
"Partnership" means Teekay LNG Partners, L.P., a Marshall Islands limited
partnership, and, subject to the provisions of Article X, shall also include its
successors and assigns.
"Payment Blockage Period" has the meaning set forth in Section 14.03.
"Person" means any individual, corporation, partnership, joint venture,
association, limited liability company, joint stock company, trust,
unincorporated
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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.
"Redemption Date" means, when used with respect to any Debt Security to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"Representative" means the trustee, agent or any representative for an
issue of Senior Indebtedness and, in the absence of any trustee, agent or
representative, it means the holder or holders of such issue.
"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).
"Responsible Officer" means, when used with respect to the Trustee, any
officer within the Corporate Trust Office of the Trustee 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.
"Securities Act" means the U.S. Securities Act of 1933, as amended, or any
successor statute.
"Senior Indebtedness" means, as to any series of Debt Securities, the
indebtedness of the Partnership identified as Senior Indebtedness in the Board
Resolution or supplemental Indenture setting forth the terms of such series and,
with respect to a Guarantee related to such series of Debt Securities, the
indebtedness of the applicable Subsidiary Guarantor identified as Senior
Indebtedness in such Board Resolution or supplemental Indenture.
"Significant Subsidiary" means a Subsidiary of the Partnership that is a
"significant subsidiary" of the Partnership, as such term is defined in Rule
1-02(w) of Regulation S-X under the Securities Act as of the date hereof.
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"Stated Maturity" means, at any time, with respect to any installment of
interest or principal on any series of Debt Securities, the date on which such
payment of interest or principal was scheduled to be paid in the original
documentation governing such indebtedness or such later date as such
documentation shall provide at that time, and shall not include any contingent
obligations to repay, redeem or repurchase any such interest or principal prior
to the date originally scheduled for the payment thereof.
"Subordinated Debt Securities" has the meaning set forth in Section 14.03.
"Subsidiary" means, with respect to any Person:
(1) any corporation, association or other business entity of which more
than 50% of the Voting Stock is at the time owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that
Person (or a combination thereof); and
(2) any partnership (whether general or limited) or limited liability
company (a) the sole general partner or the managing general partner or managing
member of which is such Person or a Subsidiary of such Person, or (b) if there
are more than a single general partner or member, either (i) the only general
partners or managers of which are such Person and/or one or more Subsidiaries of
such Person (or any combination thereof) or (ii) such Person owns or controls,
directly or indirectly, a majority of the outstanding general partner interests,
member interests or other Voting Stock of such partnership or limited liability
company, respectively.
"Subsidiary Guarantors" means, with respect to any series of Debt
Securities, the Person or Persons, if any, named in accordance with Section
2.03(7) as the "Subsidiary Guarantors" in or pursuant to a Board Resolution of
the applicable Issuer or Issuers and set forth in an Officers' Certificate of
each applicable Issuer, or established in one or more Indentures supplemental
hereto, prior to the issuance of Debt Securities of such series, until a
successor Person or Persons shall have become such pursuant to the applicable
provisions of the Indenture, and thereafter "Subsidiary Guarantors" with respect
to such series of Debt Securities shall mean such successor Person or Persons,
and any other Subsidiary of the Partnership who may execute the Indenture, or a
supplement thereto, for the purpose of providing a guarantee for such series of
Debt Securities pursuant to the Indenture. If a series of Debt Securities does
not have any Subsidiary Guarantors, all references in the Indenture to
Subsidiary Guarantors shall be ignored with respect to such series of Debt
Securities.
"Trust Indenture Act" means (except as otherwise expressly provided herein)
the U.S. Trust Indenture Act of 1939, as amended, or any successor statute.
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"Trustee" initially means The Bank of New York 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 Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"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 (a) direct
obligations of the United States for the payment of which its full faith and
credit is pledged; (b) 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, under clause (a) or (b) above, are not
callable or redeemable at the option of the issuers thereof; or (c) depository
receipts issued by a bank or trust company as custodian with respect to any such
U.S. Government Obligations or a specific payment of interest on or principal of
any such U.S. Government Obligation held by such custodian for the account of
the holder of a depository receipt, provided that (except as required by law)
such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation evidenced by such
depository receipt.
"Voting Stock" of any Person as of any date means the Equity Interests of
such Person pursuant to which the holders thereof have the general voting power
under ordinary circumstances to elect at least a majority of the board of
directors, managers, general partners or trustees of any Person (regardless of
whether, at the time, Equity Interests of any other class or classes shall have,
or might have, voting power by reason of the occurrence of any contingency) or,
with respect to a partnership (whether general or limited), any general partner
interest in such partnership.
"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.
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SECTION 1.02. OTHER DEFINITIONS.
TERM SECTION IN WHICH DEFINED
- ---- ------------------------
"Debt Security Register.............................. 2.07
"Defaulted Interest"................................. 2.17
"Designated Currency"................................ 2.18
"Funding Guarantor".................................. 12.05
"Guarantee".......................................... 12.01
"Iberia"............................................. Preamble
"Luxco".............................................. Preamble
"mandatory sinking fund payment"..................... 3.04
"Naviera I".......................................... Preamble
"Naviera II"......................................... Preamble
"Naviera III"........................................ Preamble
"Naviera IV"......................................... Preamble
"Operating Company".................................. Preamble
"optional sinking fund payment"...................... 3.04
"Potential Subsidiary Guarantors".................... Preamble
"Servicios".......................................... Preamble
"Successor Company".................................. 10.01
"Teekay Shipping Spain".............................. Preamble
"Teekay Spain"....................................... Preamble
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
The Indenture is subject to the mandatory provisions of the Trust Indenture
Act which are incorporated by reference in and made a part of the 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 the Indenture;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligors" on the indenture securities means the Issuers, any Subsidiary
Guarantors and any other obligors on the Debt Securities.
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All other Trust Indenture Act terms used in the Indenture that are defined
by the Trust Indenture Act, reference to another statute or defined by rules of
the Commission have the meanings assigned to them by such definitions.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it
in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation; and
(5) words in the singular include the plural and words in the plural
include the singular.
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 Board
Resolution of the applicable Issuer or Issuers 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 the
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as the applicable Issuer or
Issuers 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 the 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.
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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 and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By
----------------------------------
Authorized Signatory
Dated:
------------------------------
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 the Indenture is
unlimited. 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 Board
Resolution of the applicable Issuer or Issuers and set forth in an Officers'
Certificate of each applicable Issuer, 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 the 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);
(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, and in the case of Registered
Securities, the record dates for
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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 30-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 Issuers or otherwise;
(7) whether Debt Securities of the series are entitled to the benefits of
any Guarantee of any Subsidiary Guarantors pursuant to this Indenture;
(8) the obligation, if any, of the Issuers 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 at
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;
(9) the terms, if any, upon which the Debt Securities of the series may be
convertible into or exchanged for Equity Interests, other Debt Securities or
other securities of any kind of the Partnership, Finance Corp. 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 provisions in addition
to or in lieu of those described herein;
(10) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Debt Securities of the series shall be
issuable;
(11) 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;
(12) 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
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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;
(13) any changes or additions to Article XI or XIV or in any defined term
used in either Article XI or XIV;
(14) if other than Dollars, 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;
(15) 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;
(16) 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 the Indenture as currently in effect;
(17) 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;
(18) 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;
(19) any trustees, authenticating or paying agents, transfer agents or
registrars;
(20) the applicability of, and any addition to or change in the covenants
and definitions currently set forth in the Indenture or in the terms currently
set forth in Article X;
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(21) 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 the Indenture as currently in effect;
(22) with regard to Debt Securities of the series that do not bear
interest, the dates for certain required reports to the Trustee;
(23) whether Finance Corp. will be a co-issuer of the Debt Securities of
the series;
(24) applicable CUSIP Numbers; and
(25) any other terms of the Debt Securities of the series (which terms
shall not be prohibited by the provisions of the 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 Board Resolutions and as set forth in such
Officers' Certificates or in any such Indenture supplemental hereto.
SECTION 2.04. EXECUTION OF DEBT SECURITIES.
Two Officers of the General Partner shall sign the Debt Securities on
behalf of the Partnership and, if applicable, Finance Corp. Such signatures 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 seals of the Issuers, 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 the Indenture or be valid
or obligatory for any purpose. Such certificate by the Trustee upon any Debt
Security executed by the applicable Issuer or Issuers shall be conclusive
evidence that the Debt Security so authenticated has been duly authenticated and
delivered hereunder.
In case any Officer of the General Partner 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 Issuers, 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 General Partner; and any Debt Security
may be signed on behalf of the Issuers by such Persons as, at the actual date of
the execution of such
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Debt Security, shall be the proper Officers of the General Partner, although at
the date of such Debt Security or of the execution of the 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 the
Indenture, the Issuers may deliver Debt Securities of any series executed by the
Issuers to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver such Debt Securities to or upon an Issuer Order. The
Debt Securities shall be dated the date of their authentication. In
authenticating such Debt Securities and accepting the additional
responsibilities under the 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 Board Resolution of each of the Issuers, certified by the
Secretary or Assistant Secretary of each of the Issuers, 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 12.05
substantially to the effect that:
(a) the form of such Debt Securities has been established by or
pursuant to a Board Resolution of the applicable Issuer or Issuers or by a
supplemental Indenture as permitted by Section 2.01 in conformity with the
provisions of the Indenture;
(b) the terms of such Debt Securities and any related Guarantees have
been established by or pursuant to a Board Resolution of the applicable
Issuer or Issuers or by a supplemental Indenture as permitted by Section
2.03 in conformity with the provisions of the Indenture;
(c) such Debt Securities and Guarantees, when authenticated and
delivered by the Trustee and issued by the applicable Issuer or Issuers in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute valid and legally binding obligations of the
applicable Issuer or Issuers and Subsidiary Guarantors, as applicable,
enforceable in accordance with their terms except as (i) the enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent conveyance or
similar laws affecting the
-18-
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.
(d) the Issuers and any Subsidiary Guarantors have the authority to
issue such Debt Securities and related Guarantees and have duly taken all
necessary action with respect to such issuance; and
(e) such other matters as the Trustee may reasonably request.
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
Dollars.
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 Issuers 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 the 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.
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.
SECTION 2.07. GENERAL PROVISIONS FOR REGISTRATION OF TRANSFER AND EXCHANGE.
(a) The Issuers 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 they may prescribe, the Issuers shall provide for the
registration of Registered Securities
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and the transfer of Registered Securities as provided in this Article II. 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 Issuers in accordance with the provisions of Section 4.02, the Issuers 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 a Board Resolution of each of the
Issuers, the register of the Issuers 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". No prior notice to the Holders of Debt Securities is
required to effect the designation of a substitute Registrar by the Issuers.
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 Issuers as provided in Section 4.02, and the
Issuers shall execute and the Trustee shall authenticate and deliver in exchange
therefor the Registered Security or Registered Securities that 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 Issuers, the Trustee
or the Registrar) be duly endorsed or be accompanied by a written instrument or
instruments of transfer, in form satisfactory to the Issuers, the Subsidiary
Guarantors (if applicable), 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 legal, valid and binding obligations of the Issuers,
evidencing the same debt, and entitled to the same benefits under the 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
Issuers 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 the Indenture to
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be made at the Issuers' own expense or without expense or without charge to the
Holders.
The Issuers shall not be required (a) to issue, register the transfer of or
exchange any Debt Securities of a series either (i) during a period beginning 15
Business Days next preceding any selection for redemption or repurchase of Debt
Securities of such series and ending on the close of business on the day of
mailing the relevant notice of redemption or repurchase or (ii) between a record
date and the next succeeding interest payment date, or (b) to register the
transfer of or exchange any Debt Security called for redemption or repurchase
(except, in the case of Debt Securities to be redeemed or repurchased in part,
the portion not to be redeemed or repurchased).
Specific procedures for registration of transfer and exchange of any series
of Debt Securities may be set forth in the applicable supplemental Indenture for
such Debt Securities.
SECTION 2.08. TEMPORARY DEBT SECURITIES.
Pending the preparation of definitive Debt Securities of any series, the
Issuers 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, and with such
omissions, insertions and variations as may be appropriate for temporary Debt
Securities, all as may be determined by the Issuers with the concurrence of the
Trustee. Temporary Debt Securities may contain such reference to any provisions
of the Indenture as may be appropriate. Every temporary Debt Security shall be
executed by the Issuers 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 Issuers 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 Issuers 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
cancellation of any one or more temporary Debt Securities of any series, the
Issuers 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
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Debt Securities of any series shall in all respects be entitled to the same
benefits under the Indenture as definitive Debt Securities of such series.
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 the
Corporate Trust Office of the Trustee (in the case of Registered Securities) or
(ii) the Issuers and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Debt Security, and there is delivered to the
Issuers 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 Issuers nor the
Trustee receives written notice that such Debt Security has been acquired by a
bona fide purchaser, then the Issuers shall execute and, upon an Issuer Order,
the Trustee shall authenticate 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 Issuers 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 Issuers 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 Issuers 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 Issuers 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 Issuers, 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 the 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
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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, in each case
to the fullest extent permitted by law.
SECTION 2.10. CANCELLATION OF SURRENDERED DEBT SECURITIES.
All Debt Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to the Issuers or any paying agent or
a Registrar, be delivered to the Trustee for cancellation 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 the Indenture. All canceled Debt Securities held by the Trustee
shall be disposed of by the Trustee in its customary manner. On request of the
Issuers, the Trustee shall deliver to the Issuers canceled Debt Securities held
by the Trustee. If the Issuers 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 cancellation. The Issuers may not issue new Debt
Securities to replace Debt Securities it has redeemed, paid or delivered to the
Trustee for cancellation.
SECTION 2.11. PROVISIONS OF THE INDENTURE AND DEBT SECURITIES FOR THE SOLE
BENEFIT OF THE PARTIES AND THE HOLDERS.
Nothing in the 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 the 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 Issuers,
by check mailed to the address of the Person entitled
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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 the 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.
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 the 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 Issuers
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 Issuers shall, as
provided in the Debt Securities of such series, notify the Trustee of the
Currency which they have selected to constitute the funds necessary to meet the
Issuers' 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 Issuers solely in the Currency so selected.
SECTION 2.14. WIRE TRANSFERS.
Notwithstanding any other provision to the contrary in the Indenture, the
Issuers 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
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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 Issuers shall establish pursuant to Sections 2.01 and 2.03 that
the Debt 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 Issuers 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 Issuers 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 Issuers, or to a nominee of such successor
Depositary.
(c) (i) If at any time the Depositary for a Global Security or Securities
notifies the Issuers 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
Issuers 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 appointed by the Issuers
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within 90 days after the Issuers receive such notice or become aware of such
ineligibility, the Issuers shall execute, and the Trustee or its agent, upon
receipt of an Issuer 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 Issuers may at any time and in their 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 Issuers
will execute, and the Trustee, upon receipt of an Issuer 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 Issuers 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 Issuers, the Trustee and such Depositary. Thereupon the
Issuers shall execute, and the Trustee or its agent upon receipt of an Issuer
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 Person's 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, unless such Global Security is endorsed
by the Trustee or other custodian to reflect a reduction of such aggregate
principal amount, in which case no new Global Security need be authenticated and
delivered.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Issuers will execute and the Trustee or its agent will
authenticate and deliver individual Debt Securities. Upon the exchange of the
entire principal amount of a Global Security for individual Debt Securities,
such Global Security shall be
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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 Issuers 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 Issuers, the Trustee, any Registrar,
the paying agent or any agent of the Issuers or the Trustee will have any
responsibility or liability for (1) 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 the Depositary's direct or indirect
participants relating to the beneficial ownership interests of the Global
Security, (2) the payments to the beneficial owners of the Global Security of
amounts paid to the Depositary or its nominee, or (3) any other matter relating
to the actions and practices of the Depositary, its nominee or any of the
Depositary's direct or indirect participants. None of the Issuers, the Trustee
or any such agent will be liable for any delay by the Depositary, its nominee,
or any of the Depositary's direct or indirect participants in identifying the
beneficial owners of the Debt Securities, and the Issuers 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 issued at one time, it shall not be necessary
for the Issuers to deliver to the Trustee an Officers' Certificate, a Board
Resolution, a supplemental Indenture, an Opinion of Counsel or a 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, however, that any
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subsequent request by the Issuers to the Trustee to authenticate Debt Securities
of such series upon original issuance shall constitute a representation and
warranty by the Issuers 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.
An Issuer Order delivered by the Issuers 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 written
order of Persons designated in such written order and that such Persons are
authorized to determine, consistent with the Officers' Certificates,
supplemental Indenture or the applicable Board Resolutions relating to such
written order, such terms and conditions of such Debt Securities as are
specified in such Officers' Certificates, supplemental Indenture or such Board
Resolutions.
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 the 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 Issuers,
at their election in each case, as provided in clause (i) or (ii) below:
(i) The Issuers 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 Issuers
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 Issuers 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 provided in this clause (i). Thereupon the Trustee
shall fix a special record date for the payment of such
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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 Issuers of such special record date and, in the name
and at the expense of the Issuers, 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 Debt 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 Issuers 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 Issuers to the Trustee of the
proposed payment pursuant to this clause (ii), such manner of payment shall be
deemed practicable by the Trustee.
SECTION 2.18. JUDGMENTS.
The Issuers may provide pursuant to Section 2.03 for Debt Securities of any
series that (a) the obligation, if any, of the Issuers to pay the principal of,
and premium, if any, and interest on, the Debt 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
Issuers 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 Issuers shall pay
such additional amounts as may be necessary to compensate for such shortfall;
and (d) any obligation of the Issuers 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.
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SECTION 2.19. CUSIP NUMBERS.
The Issuers in issuing the Debt Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided, however, that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Debt Securities or as contained in any notice
of a redemption and that reliance may be placed only on the other identification
numbers printed on the Debt Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers. The Issuers will promptly
notify the Trustee of any change in the "CUSIP" numbers.
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 Issuers 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 Board Resolution of each applicable Issuer or a supplemental
Indenture, the Issuers 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 may not be conditional. The notice if given in the manner herein provided
shall be conclusively presumed to 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 amount of Debt Securities
of any series to be redeemed, the date fixed for redemption, the calculation of
the redemption price at which Debt Securities of such series are to be redeemed
(but not the redemption price itself if it is not then determinable), 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 such notice, that the redemption is for
a sinking fund payment (if applicable), that on and after such date any interest
thereon or on the portions thereof
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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 Issuers shall give written 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 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
Issuers and given to the Trustee, which record date shall be not less than 15
days after the date of notice to the Trustee.
No later than 11:00 A.M., New York City time, on the redemption date for
any Debt Securities, the Issuers shall deposit with the Trustee or with a paying
agent (or, if the Partnership or Finance Corp. 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 Debt 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 the Debt Securities of that series or portions thereof
(in multiples of $1,000) to be redeemed (i) if such Debt Securities are listed
on an exchange, in compliance with the requirements of the principal national
securities exchange on which such Debt Securities are listed, or (ii) if such
Debt Securities are not listed on an exchange or such exchange has no selection
requirements, on a pro rata basis, by lot or by such other method as in its sole
discretion the Trustee shall deem appropriate and fair. In any case where more
than one Debt Security of such series is registered in the same name, the
Trustee in its discretion may treat the aggregate principal amount
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so registered as if it were represented by one Debt Security of such series. The
Trustee shall promptly notify the Issuers 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 Issuers. Provisions of the 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 such date (unless the Issuers shall default in the
payment of such Debt Securities at the applicable redemption price, together
with any interest accrued to such 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 such notice specified, such Debt
Securities or the specified portions thereof shall be paid and redeemed by the
Issuers 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 of the Trustee or such other office or agency of
the Issuers as is specified pursuant to Section 2.03 with, if the Issuers, the
Registrar or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Issuers, the Registrar and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing, and the Issuers 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; provided, however, that if a Global Security
is so surrendered, the Issuers shall execute, and the Trustee shall authenticate
and deliver to the Depositary for such Global Security, without service charge,
a new
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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, a Board Resolution 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, a Board Resolution or a supplemental Indenture is herein referred to
as an "optional sinking fund payment."
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 Issuers may at
their option (a) deliver to the Trustee Debt Securities of that series
theretofore purchased or otherwise acquired by the Issuers or (b) receive credit
for the principal amount of Debt Securities of that series which have been
redeemed either at the election of the Issuers 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, however, 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, the applicable Board 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 Issuers 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 Board 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 Section 3.04 and this Section 3.05 (which
Debt Securities, if not previously redeemed, will accompany such certificate)
and whether the Issuers intend to exercise their right to make any
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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 Issuers 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 Issuers 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 Section 3.04 and 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 Issuers 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, the applicable Board 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 Issuers 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.
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At least one Business Day before each sinking fund payment date, the
Issuers shall pay to the Trustee (or, if the Partnership or Finance Corp. is
acting as its own paying agent, the Partnership or Finance Corp. 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 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 Default or Event of 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
SECTION 4.01. PAYMENT OF PRINCIPAL OF, AND PREMIUM, IF ANY, AND INTEREST ON,
DEBT SECURITIES.
The Issuers, 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 Issuers' 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, if any, and interest in respect of Debt Securities of
any series shall be considered paid on the date due if no later than 11:00 A.M.,
New York City time, on such date the Trustee or any paying agent holds in
accordance with the
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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, if any, and interest then due.
The Issuers shall pay interest on overdue principal at the rate specified
therefor in the Debt Securities and they 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 Issuers 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 Issuers or applicable Subsidiary Guarantors in respect of the Debt
Securities of such series or related Guarantees and the Indenture may be served.
The Issuers 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 Issuers
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 Issuers hereby appoint the Trustee as its agent to receive all
presentations, surrenders, notices and demands.
The Issuers 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 Issuers of their obligations described in the preceding paragraph.
The Issuers 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 Issuers, 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 Issuers 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 Issuers
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
Issuers (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 either of the Issuers or any of their respective Subsidiaries shall
act as its own paying agent, it will, on or before 11:00 A.M., New York City
time, on 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 Issuers will promptly notify the Trustee of any failure by the Issuers or
its Subsidiaries 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, either
of the Issuers may, at any time, for the purpose of obtaining a satisfaction and
discharge of the 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 Issuers or such paying agent.
(d) Whenever the Issuers shall have one or more paying agents with respect
to any series of Debt Securities, they will, prior to 11:00 A.M., New York City
time, on each due date 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
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the principal, premium, if any, 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 Issuers will promptly notify the Trustee of
their 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 11.03.
(f) Unless and until otherwise determined by the Issuers in Board
Resolutions or pursuant to a supplemental Indenture, the Trustee will act as
paying agent under the Indenture. The Issuers may designate a substitute paying
agent without prior notice to the Holders of Debt Securities.
SECTION 4.05. STATEMENT BY OFFICERS AS TO DEFAULT.
The Issuers will deliver to the Trustee, on or before a date not more than
four months after the end of each fiscal year of the Issuers (currently ending
on December 31 of each year) ending after the date hereof, an Officers'
Certificate stating, as to each Officer signing such certificate, one of whom
shall be the principal executive, financial or accounting officer of each
Issuer, that (i) in the course of his performance of his duties as an officer of
the General Partner, 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 either Issuer or any Subsidiary
Guarantor is in Default, specifying all such Defaults and what action such
Issuer or Subsidiary Guarantor, as applicable, is taking or proposes to take
with respect thereto.
SECTION 4.06. CORPORATE, PARTNERSHIP OR LIMITED LIABILITY COMPANY EXISTENCE.
Subject to Article X, the Partnership shall do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate,
partnership or limited liability company existence and related rights of the
Partnership, Finance Corp. and the Partnership's other Subsidiaries; provided,
however, that the Partnership shall not be required to preserve any such right
for the corporate, partnership or limited liability company existence of any
such Subsidiary if the management of the General Partner shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Partnership 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 Issuers or any obligor on the Debt Securities of any series to
perform their obligations hereunder; and provided, further, that the foregoing
shall
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not prohibit a sale, transfer or conveyance of a Subsidiary of the Partnership
or any of its assets in compliance with the terms of the Indenture.
SECTION 4.07. CALCULATION OF ORIGINAL ISSUE DISCOUNT.
The Issuers shall file with the Trustee promptly at the end of each
calendar year (a) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods) accrued on Outstanding
Original Issue Discount Debt Securities as of the end of such year and (b) such
other specific information relating to such original issue discount as may then
be relevant under the Code.
SECTION 4.08. STAY, EXTENSION AND USURY LAWS.
Each of the Issuers covenants (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of the Indenture; and each of the Issuers hereby
expressly waives all benefit or advantage of any such law, and covenants that it
shall not, by resort to any such law, hinder, delay or impede the execution of
any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law has been enacted.
ARTICLE V. HOLDERS' LISTS AND REPORTS BY THE ISSUERS AND THE TRUSTEE
SECTION 5.01. ISSUERS TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND ADDRESSES
OF HOLDERS; PRESERVATION OF INFORMATION.
The Issuers covenant and agree that they 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 Issuers of any such request, a list as of a date
not more than 15 days prior to the time such list is furnished; 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
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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; MEETINGS OF HOLDERS.
(a) Holders may communicate pursuant to Section 312(b) of the Trust
Indenture Act with other Holders with respect to their rights under the
Indenture or the Debt Securities. The Issuers, the Trustee, the Registrar and
anyone else shall have the protection of Section 312(c) of the Trust Indenture
Act.
(b) A meeting of the Holders of Debt Securities of any or all series may be
called at any time and from time to time pursuant to this Section 5.02 to make,
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided herein to be made, given or taken by Holders of
Debt Securities of such series.
(c) The Trustee may at any time call a meeting of Holders of Debt
Securities of any series for any purpose specified herein to be held at such
time and at such place in The Borough of Manhattan, The City of New York or in
any other location, as the Trustee shall determine. Notice of every meeting of
Holders of any series, setting forth the time and the place of such meeting and
in general terms the action proposed to be taken at such meeting, shall be given
not less than 20 nor more than 180 days prior to the date fixed for the meeting.
(d) In case at any time the Issuers, pursuant to Board Resolutions, or the
Holders of at least 25% in aggregate principal amount of the outstanding Debt
Securities of any series, shall have requested the Trustee for any such series
to call a meeting of the Holders of Debt Securities of such series for any
purpose specified herein, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 30 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Issuers or the Holders of such series in
the amount specified above, as the case may be, may determine the time and the
place in The Borough of Manhattan, The City of New York, or in any other
location, for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in paragraph (c) of this Section 5.02.
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SECTION 5.03. REPORTS BY ISSUERS.
(a) Notwithstanding that the Partnership may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, the Partnership shall file with the Commission and provide to the Trustee
and the Holders of Debt Securities the annual reports and the information,
documents and other reports that are specified in Sections 13 and 15(d) of the
Exchange Act and would otherwise be applicable to the Partnership, and, with
respect to the annual consolidated financial statements only, a report thereon
by the Issuers' independent auditors; provided, however, that the Partnership
shall not be so obligated to file such information, documents and reports with
the Commission if the Commission does not permit such filings. The Issuers shall
comply with the other provisions of Section 314(a) of the Trust Indenture Act.
(b) The Issuers covenant and agree, and any obligor hereunder shall
covenant and agree, to file with the Trustee and the Commission, in accordance
with the rules and regulations prescribed from time to time by the Commission,
such additional information, documents, and reports with respect to compliance
by the Issuers or such obligor, as the case may be, with the conditions and
covenants provided for in the Indenture as may be required from time to time by
such rules and regulations.
(c) Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute notice of any information contained therein or determinable from
information contained therein, including the Issuers' compliance with any of
their covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officers' Certificates).
SECTION 5.04. REPORTS BY TRUSTEE.
The Trustee shall transmit to Holders such reports concerning the Trustee
and its actions under the 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; and
(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
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address appear in the information preserved at the time by the Trustee in
accordance with Section 5.01.
A copy of each report at the time of its mailing to Holders shall be filed
with the Commission and each stock exchange (if any) on which the Debt
Securities of any series are listed. The Issuers agree 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 Issuers 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
Issuers may, at their option, by Board Resolutions, fix in advance a record date
for the determination of Holders of Debt Securities entitled to take such
action, but the Issuers shall have no obligation to do so. Any such record date
shall be fixed at the Issuers' 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,
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) the Issuers Default for a period of 30 days in the payment when due of
interest on any Debt Securities of that series; or
(b) the Issuers default in the payment when due of principal of or premium,
if any, on any Debt Securities of that series at maturity, upon redemption or
otherwise; 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
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(d) failure on the part of the Issuers or any Significant Subsidiary that
is a Subsidiary Guarantor with respect to that series to comply with Article X;
or
(e) failure by the Issuers or any Significant Subsidiary that is a
Subsidiary Guarantor for such series for 60 days after notice to comply to duly
observe or perform any other of the covenants or agreements on the part of the
Issuers or such Subsidiary Guarantors in the Debt Securities of that series in
any Board Resolution authorizing the issuance of that series of Debt Securities,
in the 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 6.01 specifically dealt with); or
(f) an Issuer or any Significant Subsidiary that is a Subsidiary Guarantor
of that series of Debt Securities, pursuant to or within the meaning of
Bankruptcy Law, commences a voluntary case, consents to the entry of an order
for relief against it in an involuntary case, consents to the appointment of a
custodian of it or for all or substantially all of its property, makes a general
assignment for the benefit of its creditors, or generally is not paying its
debts as they become due; or
(g) (i) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that is for relief against an Issuer or any Significant
Subsidiary that is a Subsidiary Guarantor of that series of Debt Securities in
an involuntary case, appoints a custodian of an Issuer or any such Significant
Subsidiary, or orders the liquidation of an Issuer or any such Significant
Subsidiary and (ii) such order or decree remains unstayed and in effect for 60
consecutive days;
(h) if any series of Debt Securities Outstanding under this Indenture is
entitled to the benefits of a Guarantee by the Subsidiary Guarantors, the
Guarantee of any Significant Subsidiary that is such a Subsidiary Guarantor
ceases to be in full force and effect with respect to Debt Securities of that
series (except as otherwise provided in this Indenture) or is declared null and
void in a judicial proceeding or any such Significant Subsidiary denies or
disaffirms its obligations under this Indenture or such Guarantee; 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 (other than an Event of
Default specified in Section 6.01(f) or (g)) with respect to Debt Securities of
that series at the time outstanding occurs and is continuing, either the Trustee
or the Holders of at least 25% in aggregate principal amount of the Debt
Securities of that series, 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
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be specified in the terms of that series) and interest on all the Debt
Securities of that series to be due and payable immediately; provided, however,
that if an Event of Default specified in Section 6.01(f) or (g) occurs, such
amounts relating to the applicable series of Debt Securities shall automatically
become and be immediately due and payable without any declaration, notice or
other act on the part of the Trustee or any Holder.
The Holders of a majority in aggregate principal amount of the Debt
Securities of a particular series at the time Outstanding 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, remedies and powers of the
parties hereto shall continue as though no such acceleration had been declared.
In case the Trustee or any Holder shall have proceeded to enforce any right
under the 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 Issuers 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, the lapse of time or both would
become an Event of Default under clause (c), (d), (e), (f), (g) or (h), its
status and what action the Issuers or the Subsidiary Guarantors, as applicable,
are taking or propose 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 of the Debt Securities of the affected series or
enforce the performance of any
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provision of the Debt Securities of the affected series or the 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 Issuers or Subsidiary
Guarantors 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 Issuers or
Subsidiary Guarantors 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 an Issuer or any Subsidiary Guarantor or any other obligor
upon the Debt Securities of any series under Title 11 of the United States
Bankruptcy Code or any other foreign, federal or state bankruptcy, insolvency or
similar law, or in case a receiver, trustee or other similar official shall have
been appointed for its property, or in case of any other similar judicial
proceedings relative to an Issuer or any Subsidiary Guarantor 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 an
Issuer, any Subsidiary Guarantor 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.
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All rights of action and of asserting claims under the 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.
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 the Indenture by such
appropriate judicial proceedings as the Trustee shall deem necessary 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 the Indenture or in aid of the exercise of any power granted in the
Indenture, or to enforce any other legal or equitable right vested in the
Trustee by the 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 XIV, 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) specified in 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
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been collected by the Trustee) upon overdue installments of interest at the rate
or Yield to Maturity (in the case of Original Issue Discount Debt Securities)
specified in the Debt Securities of such series; and if 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 Issuers, the Subsidiary
Guarantors, their successors or assigns, 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 Issuers 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 the Indenture to institute any action or
proceeding at law or in equity or in bankruptcy or otherwise, upon or under or
with respect to the 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 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 the 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 the
Indenture, except in the manner herein provided and for the equal, ratable and
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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 the Indenture (but subject to
Article XIV), 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 affected
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 the
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 of such series; provided, however,
that such direction shall not be otherwise than in accordance with law and the
provisions of the 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 prejudicial to Holders of Debt Securities of such series
not taking part in
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such direction; and, provided further, that nothing contained in the Indenture
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 by notice
to the Trustee 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, supplemented or waived
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 the Indenture, and the
Issuers, the Subsidiary Guarantors, 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 Event or 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 12.03, 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, however, 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
committee of Responsible Officers of the Trustee in good faith determines 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 the 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
the 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
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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 and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; provided, however, that 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 25% 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 the
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 the Indenture, and use the same degree of care and skill in their exercise,
as a prudent person would exercise or use under the circumstances in the conduct
of his own affairs.
No provision of the Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act,
or its bad faith or willful 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 the 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 the Indenture, and no implied covenants or
obligations with respect to such series shall be read into the 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
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the opinions expressed therein, upon any certificates or opinions furnished
to the Trustee and conforming to the requirements of the Indenture;
provided, however, that 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 the 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 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 the Indenture with respect to Debt Securities
of such series.
None of the provisions of the 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 the
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 conclusively rely and shall be fully 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 (whether in its original or facsimile
form) 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 Issuers mentioned herein
shall be sufficiently evidenced by an Issuer Order (unless other evidence in
respect thereof is specifically prescribed herein); and any Board Resolution may
be evidenced
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to the Trustee by a copy thereof certified by the Secretary or an Assistant
Secretary of the General Partner;
(c) the Trustee may consult with counsel of its own selection, 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 the Trustee 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 the Indenture at the request, order or direction of
any of the Holders of Debt Securities of any series pursuant to the provisions
of the Indenture, unless such Holders shall have offered to the Trustee security
or indemnity reasonably satisfactory to it 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 the 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 the Indenture, the
Trustee may require indemnity reasonably satisfactory to it against such costs,
expenses or liabilities as a condition to so proceeding; the Trustee shall be
entitled to examine the books, records and premises of the Issuers during
ordinary business hours and for any purpose relevant to the Indenture,
personally or by an agent or attorney at the sole cost of the Issuers and shall
incur no liability or additional liability of any kind by reason of such inquiry
or investigation;
(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;
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(h) if any property other than 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;
(i) the Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a Default is
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Debt Securities and the Indenture; and
(j) the rights, privileges, protections, immunities and benefits given to
the Trustee, including its right to be indemnified, are extended to, and shall
be enforceable by, the Trustee in each of its capacities hereunder, and to each
agent, custodian and other Person employed by the Trustee to act hereunder.
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
Issuers, and the Trustee assumes no responsibility for the correctness of the
same. The Trustee makes no representations as to the validity or sufficiency of
the Indenture or of the Debt Securities of any series, except that the Trustee
represents that it is duly authorized to execute and deliver the 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 Issuers are true and accurate. The
Trustee shall not be accountable for the use or application by the Issuers 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 or any
related Guarantees and, subject to the provisions of the Trust Indenture Act
relating to conflicts of interest and preferential claims, may otherwise deal
with the Issuers and any Subsidiary Guarantors, as applicable, with the same
rights it would have if it were not Trustee, paying agent or Registrar;
provided, however, that if the Trustee acquires any such conflicting interest
and an Event of Default or Default has occurred and is
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continuing, the Trustee must eliminate such conflict within 90 days, apply to
the Commission for permission to continue as trustee, or resign.
SECTION 7.05. MONEYS RECEIVED BY TRUSTEE TO BE HELD IN TRUST.
Subject to the provisions of Section 11.03, all moneys received by the
Trustee shall, until used or applied as provided herein, 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 Issuers upon an Issuer
Order.
SECTION 7.06. COMPENSATION AND REIMBURSEMENT.
The Issuers covenant and agree 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 Issuers will pay or reimburse
in Dollars the Trustee upon its request for all expenses, disbursements and
advances reasonably incurred or made by the Trustee in accordance with any of
the provisions of the 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, bad faith or willful misconduct. The
Issuers also covenant to fully indemnify in Dollars the Trustee and any
predecessor Trustee for, and to hold it harmless against, any and all loss,
liability, claim, damage or expense incurred without negligence, bad faith or
willful misconduct 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 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 Issuers 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 the Indenture. The
Issuers 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.
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When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(f) or (g) 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 the 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, bad faith or willful misconduct 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,
bad faith or willful misconduct 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 the Indenture upon the faith thereof.
SECTION 7.08. SEPARATE TRUSTEE; REPLACEMENT OF TRUSTEE.
The Issuers 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
Issuers. The Holders of a majority in principal amount of the Debt Securities of
a particular series at the time Outstanding may remove the Trustee for such
series and only such series by so notifying the Trustee and may appoint a
successor Trustee. The Issuers 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 Issuers 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 Issuers shall
promptly appoint a successor Trustee. No
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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 Issuers. 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 the 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
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 at the expense of the Issuers
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 Issuers' 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 Issuers, 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) that 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 the 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 as 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.
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SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER.
If the Trustee consolidates or merges with, 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, provided such Person shall be otherwise qualified and
eligible under this Article VII, without the execution or filing of any paper or
any further act on the part of any of the parties hereto. As soon as
practicable, the successor Trustee shall mail a notice of its succession to the
Issuers and the Holders of the Debt Securities then Outstanding.
In case at the time such successor or successors by merger, conversion or
consolidation to the Trustee shall succeed to the trusts created by the
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
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 the 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 recently 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 the Indenture (or any
indenture or indentures under which other securities or certificates of interest
or participation in other securities of the Issuers 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 ISSUERS.
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.
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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 principal, premium (if any) and interest on the Debt Securities,
whether acting as Trustee, Registrar, paying agent or otherwise with respect to
the Debt Securities.
ARTICLE VIII. CONCERNING THE HOLDERS
SECTION 8.01. EVIDENCE OF ACTION BY HOLDERS.
Whenever in the 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 Issuers, 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
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the Issuers 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
2.12) interest on such Registered Security and for all other purposes, and
neither the Issuers 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.
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 the 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 the
Corporate Trust Office of the Trustee 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 the Indenture
in connection with such action shall be conclusively binding upon the Issuers,
the Trustee and the Holders of all the Debt Securities of such series.
The Issuers 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 the 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
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 written consent of the Holders of the percentage in aggregate
principal amount of the Debt Securities of such series specified in the
Indenture shall have been received within such 120-day period.
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ARTICLE IX. AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF DEBT SECURITIES.
The Issuers, the Subsidiary Guarantors and the Trustee may from time to
time and at any time, without the consent of Holders of any Debt Security, enter
into an Indenture or supplemental Indentures (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 cure any ambiguity, defect or inconsistency contained herein, in any
supplemental Indenture or in the Debt Securities of any series or any related
Guarantees;
(b) to provide for uncertificated Debt Securities in addition to or in
place of certificated Debt Securities; provided, however, that the
uncertificated Debt Securities are issued in registered form for purposes of
Section 163(f) of the Code, or in a manner such that the uncertificated Debt
Securities are described in Section 163(f)(2)(B) of the Code;
(c) to provide for the assumption of an Issuer's obligations to Holders
pursuant to Article X;
(d) to add guarantors (including Subsidiary Guarantors) or guarantees with
respect to the Debt Securities as parties to the Indenture or to release
guarantors in accordance with the provisions of the Indenture or any
supplemental Indenture;
(e) to make any changes that would provide any additional rights or
benefits to the Holders of the Debt Securities of one or more series or that do
not, taken as a whole, adversely affect the legal rights hereunder of any such
Holder;
(f) to comply with the requirements of the Commission to permit the
qualification of the Indenture or any supplemental Indenture under the Trust
Indenture Act as then in effect; provided, however, that nothing herein
contained shall permit or authorize the inclusion in any supplemental Indenture
of the provisions referred to in Section 316(a)(2) of the Trust Indenture Act;
(g) to add Subsidiary Guarantors with respect to any or all of the Debt
Securities or to secure any or all of the Debt Securities or any guarantee with
respect to any Debt Securities;
(h) to evidence or provide for the acceptance of appointment hereunder by a
successor or separate Trustee with respect to the Debt Securities of one or more
series
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and to add to or change any of the provisions of the Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee;
(i) to add any additional Events of Default;
(j) to make any changes in Article XIV that would limit or terminate the
benefits applicable to any holder of Senior Indebtedness (or its
Representatives) under Article XIV; and
(k) to establish the form or terms of the Debt Securities as permitted by
Section 2.01 or 2.03.
The Trustee is hereby authorized to join with the Issuers and guarantors
with respect to any Debt Securities in the execution of any such supplemental
Indenture, to make any further appropriate agreements and stipulations which may
be contained therein 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 the Indenture or otherwise.
Any supplemental Indenture authorized by the provisions of this Section
9.01 may be executed by the Issuers, any Subsidiary Guarantors with respect to
any Debt Securities of the applicable series 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.
After an amendment under this Section 9.01 becomes effective, the Issuers
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 9.01.
SECTION 9.02. 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 a majority in aggregate principal amount of the
outstanding Debt Securities of each series affected by such supplemental
Indenture, (a) the Issuers and any Subsidiary Guarantors, when authorized by
Board Resolutions, and the Trustee may from time to time and at any time enter
into an Indenture or supplemental Indentures (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 the
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Indenture or of any supplemental Indenture or of modifying in any manner the
rights of the Holders of the Debt Securities of such series or any related
Guarantees, and (b) subject to Sections 6.04 and 6.08, any existing Default or
Events of Default or compliance with any provision of the Indenture or the Debt
Securities of such series may be waived; provided, however, that no such
supplemental Indenture or waiver, 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,
supplement or waiver; (ii) reduce the principal of or change the Stated Maturity
of any Debt Security; (iii) reduce or waive the premium, if any, payable upon
the redemption of any Debt Security or alter or waive any provisions by which
any Debt Security may or shall be redeemed in accordance with Article III (other
than provisions requiring the repurchase of the Debt Securities of such series
if so permitted by the Board Resolutions or supplemental Indenture establishing
the terms of such series); (iv) reduce the rate of or change the time for
payment of interest on any Debt Security; (v) waive a Default or an Event of
Default in the payment of principal of, or premium, if any, or interest on a
Debt Security except for a rescission of an acceleration of such Debt Securities
by the Holders of at least a majority in aggregate principal amount of such Debt
Securities and a waiver of the payment default that resulted from such
acceleration; (vi) except as otherwise permitted under the Indenture, release
any security that may have been granted in respect of the Debt Securities; (vii)
make any Debt Security payable in Currency other than that stated in the Debt
Security; (viii) make any change in the provisions of the Indenture relating to
waivers of past Defaults or the rights of Holders to receive payments of
principal of or premium, if any, or interest on the Debt Securities; (ix) waive
a redemption payment with respect to any Debt Security (other than a payment
required by a covenant requiring the repurchase of the Debt Securities of such
series if so permitted by the Board Resolutions or supplemental Indenture
establishing the terms of such series); (x) make any change in Section 6.06 or
this Section 9.02; (xi) make any change in Article XIV that adversely affects
the rights of any Holder under Article XIV; or (xii) except as provided in
Section 12.04, release any Subsidiary Guarantor or modify the Guarantee of any
Debt Security in any manner adverse to the Holders.
A supplemental Indenture which changes or eliminates any covenant or other
provision of the 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 the
Indenture of the Holders of Debt Securities of any other series.
Upon the request of the Issuers and, if applicable, the Subsidiary
Guarantors, accompanied by copies of Board Resolutions authorizing the execution
of any such
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supplemental Indenture, and upon the filing with the Trustee of evidence of the
consent of Holders as aforesaid, the Trustee shall join with the Issuers and any
guarantors with respect to any Debt Securities in the execution of such
supplemental Indenture unless such supplemental Indenture affects the Trustee's
own rights, duties or immunities under the 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.
An amendment under this Section 9.02 may not make any change that adversely
affects the rights under Article XIV of any holder of Senior Indebtedness then
Outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consents to such change.
After an amendment or waiver under this Section 9.02 becomes effective, the
Issuers shall mail to Holders of Debt Securities of each series affected thereby
a notice briefly describing such amendment or waiver. The failure to give such
notice to all such Holders, or any defect therein, shall not impair or affect
the validity of an amendment or waiver 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, the 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 the Indenture of the Trustee,
the Issuers, the Subsidiary Guarantors 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 the 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.
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
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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 of the Issuers, to any modification of the Indenture
contained in any such supplemental Indenture may be prepared and executed by the
Issuers, 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 ISSUERS.
Neither of the Issuers nor any Subsidiary Guarantor with respect to a
series of Debt Securities may, directly or indirectly (1) consolidate or merge
with or into another Person (whether or not such Issuer or Subsidiary Guarantor
is the survivor) or (2) sell, assign, transfer, lease, convey or otherwise
dispose of all or substantially all of its properties or assets, in one or more
related transactions, to another Person, unless:
(1) either (a) such Issuer or Subsidiary Guarantor, as applicable, is the
surviving entity of such transaction; or (b) the Person formed by or surviving
any such consolidation or merger (if other than such Issuer or Subsidiary
Guarantor) or to which such sale, assignment, transfer, lease, conveyance or
other disposition shall have been made (the "Successor Company") is an entity
organized or existing under the laws of (i) the United States, any state thereof
or the District of Columbia, (ii) the Republic of the Marshall Islands or (iii)
any other country recognized by the United States; provided, however, that
Finance Corp. may not consolidate or merge with or into any entity other than a
corporation satisfying such requirement for so long as the Partnership is not a
corporation;
(2) the Successor Company assumes all the obligations of such Issuer under
the Debt Securities affected thereby (or, if applicable, of such Subsidiary
Guarantee under the related Guarantee) and the Indenture pursuant to agreements
reasonably satisfactory to the Trustee;
(3) immediately after such transaction no Default or Event of Default
exists; and
(4) such Issuer or Subsidiary Guarantor has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and, if a supplemental Indenture is required,
such supplemental Indenture complies with the Indenture, and all conditions
precedent therein relating to such transaction have been satisfied.
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SECTION 10.02. RIGHTS AND DUTIES OF SUCCESSOR COMPANY.
In case of any consolidation or merger involving the Issuer or a Subsidiary
Guarantor, or a disposition of all or substantially all the assets of an Issuer
or Subsidiary Guarantor in accordance with Section 10.01, the Successor Company
shall succeed to and be substituted for such Issuer or Subsidiary Guarantor, as
applicable, with the same effect as if it had been named herein as the
respective party to the Indenture, and the Issuer or Subsidiary Guarantor shall
be released from any further obligation under the Indenture and the Debt
Securities.
In case of any such consolidation, merger or disposition, such changes in
phraseology and form (but not in substance) may be made in the Debt Securities
and related Guarantees, if any, appertaining thereto thereafter to be issued as
may be appropriate.
ARTICLE XI. DISCHARGE OF INDENTURE
SECTION 11.01. TERMINATION OF THE ISSUERS' AND THE SUBSIDIARY GUARANTORS'
OBLIGATIONS.
(a) The Indenture shall cease to be of further effect with respect to all
Outstanding Debt Securities of any series (except that rights of registration of
transfer or exchange of Debt Securities of such series herein expressly provided
for, the Issuers' obligations under Section 7.06, the Trustee's and each paying
agent's obligations under Sections 11.02 and 11.03, and the rights, powers,
protections and privileges accorded to the Trustee under Article VII shall
survive) and the Trustee, on demand and at the expense of the Issuers, shall
execute proper instruments acknowledging satisfaction and discharge of the
Indenture with respect to such series, when:
(i) either
(A) all outstanding Debt Securities of such series therefore
authenticated and delivered (other than (1) Debt Securities which have been
destroyed, lost or stolen and which have been replaced or paid as provided in
Section 2.09 and (2) Debt Securities for which payment money has been deposited
in trust with the Trustee or any paying agent and thereafter repaid to either
Issuer or discharged from such trust) have been delivered to the Trustee for
cancellation; or
(B) all outstanding Debt Securities of such series not
theretofore delivered to the Trustee for cancellation
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(1) have become due and payable by reason of the giving of a
notice of redemption or otherwise,
(2) shall become due and payable at their Stated Maturity within
one year, or
(3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Issuers,
and the Issuers, in the case of clause (1), (2) or (3) above, have irrevocably
deposited or caused to be irrevocably deposited with the Trustee as trust funds
in trust for such purpose cash in Dollars or U.S. Government Obligations, or a
combination thereof, in an amount sufficient (in the case of clauses (2) and (3)
and without consideration of any reinvestment of interest and as certified by an
independent public accountant, designated by the Partnership, expressed in a
written certification thereof delivered to the Trustee) to pay and discharge the
entire indebtedness of such Debt Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and accrued and
unpaid interest to the date of such deposit (in the case of Debt Securities
which have become due and payable) or the Stated Maturity or redemption date, as
the case may be (in the case of Debt Securities which have not become due and
payable); or
(C) the Issuers and the Subsidiary Guarantors have properly
fulfilled such other means of satisfaction and discharge as is specified, as
contemplated by Section 2.03, to be applicable to the Debt Securities of such
series;
(ii) the Issuers or Subsidiary Guarantors have paid or caused to be
paid all other sums then due and payable hereunder by them under the Indenture;
and
(iii) the Partnership has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein relating to the satisfaction and discharge of the Indenture
with respect to the Debt Securities of such series have been complied with.
(b) Unless this Section 11.01(b) is specified as not being applicable to
Debt Securities of a series as contemplated by Section 2.03, the Partnership
may, at its option, terminate certain of the Issuers' and the Subsidiary
Guarantors' respective obligations under the Indenture ("covenant defeasance")
with respect to the Debt Securities of a series if:
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(1) the Issuers or Subsidiary Guarantors have irrevocably deposited or
caused to be irrevocably deposited with the Trustee as trust funds in trust for
the purpose of making the following payments, specifically pledged as security
for and dedicated solely to the benefit of the Holders of Debt Securities of
such series, (i) money in the Currency in which payment of the Debt Securities
of such series is to be made in an amount, or (ii) U.S. Government Obligations
with respect to such series, maturing as to principal and interest at such times
and in such amounts as will ensure the availability of money in the Currency in
which payment of the Debt Securities of such series is to be made in an amount
or (iii) a combination thereof, that is sufficient, in the opinion (in the case
of clauses (ii) and (iii)) of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay the principal of and premium (if any) and interest on all Debt
Securities of such series on each date that such principal, premium (if any) or
interest is due and payable and (at the Stated Maturity thereof or upon
redemption as provided in Section 11.01(e)) to pay all other sums payable by it
hereunder; provided, however, that the Trustee shall have been irrevocably
instructed to apply such money and/or the proceeds of such U.S. Government
Obligations to the payment of such principal, premium (if any) and interest with
respect to the Debt Securities of such series as the same shall become due;
(2) the Partnership has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to satisfaction and discharge of the Indenture with respect to the
Debt Securities of such series have been complied with;
(3) no Default or Event of Default with respect to the Debt Securities
of such series shall have occurred and be continuing on the date of such
deposit;
(4) the Partnership has delivered to the Trustee an Opinion of Counsel
or a private letter ruling issued by the United States Internal Revenue Service
to the effect that the Holders will not recognize income, gain or loss for
United States federal income tax purposes as a result of the Partnership's
exercise of its option under this Section 11.01(b) and will be subject to United
States Federal income tax on the same amount and in the same manner and at the
same times as would have been the case if such option had not been exercised;
(5) the Issuers and the Subsidiary Guarantors have complied with any
additional conditions specified pursuant to Section 2.03 to be applicable to the
discharge of Debt Securities of such series pursuant to this Section 11.01; and
(6) such deposit and discharge shall not cause the Trustee to have a
conflicting interest as defined in Section 310(b) of the Trust Indenture Act.
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In such event, the Indenture shall cease to be of further effect (except as
set forth in this paragraph), and the Trustee, on demand of the Partnership,
shall execute proper instruments acknowledging satisfaction and discharge under
the Indenture. However, the Issuers' and the Subsidiary Guarantors' respective
obligations in Sections 2.07, 2.09, 4.02, 4.04, 5.01, 7.06, 7.08, 11.04 and
11.05, the Trustee's and any paying agent's obligations in Section 11.03 and the
rights, powers, protections and privileges accorded the Trustee under Article
VII shall survive until all Debt Securities of such series have been paid in
full. Thereafter, only the Issuers' obligations in Section 7.06 and the
Trustee's and any paying agent's obligations in Section 11.03 shall survive with
respect to Debt Securities of such series.
If the Partnership exercises its covenant defeasance option, payment of the
Debt Securities of the defeased series may not be accelerated because of an
Event of Default specified in Sections 6.01(d), (e), (h) or (i) or, with respect
to the Subsidiary Guarantors only, Sections 6.01(f) or (g) (except to the extent
covenants or agreements referenced in such Sections remain applicable).
After such irrevocable deposit made pursuant to this Section 11.01(b) and
satisfaction of the other conditions set forth herein, the Trustee upon, request
of the Partnership shall acknowledge in writing the discharge of the Issuers and
the Subsidiary Guarantors' obligations under the Indenture with respect to the
Debt Securities of such series except for those surviving obligations specified
above.
In order to have money available on a payment date to pay principal of or
premium (if any) or interest on the Debt Securities, the U.S. Government
Obligations shall be payable as to principal or interest on or before such
payment date in such amounts as will provide the necessary money. U.S.
Government Obligations shall not be callable at the issuer's option.
(c) If the Issuers and the Subsidiary Guarantors have previously complied
or are concurrently complying with Section 11.01(b) (other than any additional
conditions specified pursuant to Section 2.03 that are expressly applicable only
to covenant defeasance) with respect to Debt Securities of a series, then,
unless this Section 11.01(c) is specified as not being applicable to Debt
Securities of such series as contemplated by Section 2.03, the Partnership may
elect that the Issuers' and the Subsidiary Guarantors' respective obligations to
make payments with respect to Debt Securities of such series be discharged
("legal defeasance"), if:
(1) no Default or Event of Default under clauses (f) or (g) of Section
6.01 hereof shall have occurred at any time during the period ending on the 91st
day after the date of deposit contemplated by Section 11.01(b) (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period);
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(2) unless otherwise specified with respect to Debt Securities of such
series as contemplated by Section 2.03, the Partnership has delivered to the
Trustee an Opinion of Counsel to the effect referred to in Section 11.01(b)(4)
with respect to such legal defeasance, which opinion is based on (i) a private
letter ruling issued by the United States Internal Revenue Service addressed to
the Partnership, (ii) a published ruling of the U.S. Internal Revenue Service
pertaining to a comparable form of transaction or (iii) a change in the
applicable U.S. federal income tax law (including regulations) after the date of
the Indenture;
(3) the Issuers and the Subsidiary Guarantors have complied with any
other conditions specified pursuant to Section 2.03 to be applicable to the
legal defeasance of Debt Securities of such series pursuant to this Section
11.01(c); and
(4) the Partnership has delivered to the Trustee a written request for
such legal defeasance of the Debt Securities of such series and an Officers'
Certificate and Opinion of Counsel, each stating that all conditions precedent
with respect to such legal defeasance of the Debt Securities of such series have
been complied with.
In such event, the Issuers and the Subsidiary Guarantors will be discharged
from their respective obligations under the Indenture and the Debt Securities of
such series to pay principal of, premium (if any) and interest on Debt
Securities of such series, the Issuers' and the Subsidiary Guarantors'
obligations under Sections 4.01, 4.02, 4.04 and 12.01 shall terminate with
respect to such Debt Securities, and the entire indebtedness of the Issuers
evidenced by such Debt Securities and of the Subsidiary Guarantors evidenced by
the related Guarantees shall be deemed paid and discharged.
The Partnership may exercise the legal defeasance option notwithstanding
the prior exercise of the covenant defeasance option. If the Partnership
exercises its legal defeasance option, payment of the Debt Securities of the
defeased series may not be accelerated because of an Event of Default.
(d) If and to the extent additional or alternative means of satisfaction,
discharge or defeasance of Debt Securities of a series are specified to be
applicable to such series as contemplated by Section 2.03, each of the Issuers
and the Subsidiary Guarantors may terminate any or all of its obligations under
the Indenture with respect to Debt Securities of a series and any or all of its
obligations under the Debt Securities of such series if it fulfills such other
means of satisfaction and discharge as may be so specified, as contemplated by
Section 2.03, to be applicable to the Debt Securities of such series.
(e) If Debt Securities of any series subject to subsection (a), (b), (c) or
(d) of this Section 11.01 are to be redeemed prior to their Stated Maturity,
whether
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pursuant to any optional redemption provisions or in accordance with any
mandatory or optional sinking fund provisions, the terms of the applicable trust
arrangement shall provide for such redemption, and the Issuers shall make such
arrangements as are reasonably satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Issuers.
SECTION 11.02. APPLICATION OF TRUST MONEY.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 11.01. It shall apply the deposited money
and the money from U.S. Government Obligations through any paying agent and in
accordance with the Indenture to the payment of principal of, and premium, if
any, and interest on, the Debt Securities of the defeased series. Prior to the
maturity of such series, the Trustee may, at the written direction of the
Issuers, invest such money in U.S. Government Obligations.
SECTION 11.03. REPAYMENT TO ISSUERS OR SUBSIDIARY GUARANTORS.
The Trustee and any paying agent shall promptly turn over to the Issuers or
any Subsidiary Guarantor any excess money or securities held by them at any time
upon request of the Partnership.
Subject to any applicable abandoned property law, the Trustee and any
paying agent shall pay to the Partnership upon request any money held by them
for the payment of any principal, premium or interest on the Debt Securities
that remains unclaimed for two years, and, thereafter, Holders entitled to such
money must look to the Issuers for payment as general creditors unless an
applicable abandoned property law designates another Person, and all liability
of the Trustee and any paying agent with respect to such money shall cease.
SECTION 11.04. INDEMNITY FOR U.S. GOVERNMENT OBLIGATIONS.
The Issuers 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 11.05. 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
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obligations of the Issuers and the Subsidiary Guarantors under the 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; provided, however,
that if either Issuer or any Subsidiary Guarantor has made any payment of
principal of, premium (if any) or interest on any Debt Securities because of the
reinstatement of its obligations, such Issuer or Subsidiary Guarantor, as the
case may be, shall be subrogated to the rights of the Holders of such Debt
Securities to receive such payment from the money or U.S. Government Obligations
held by the Trustee or the paying agent.
ARTICLE XII. GUARANTEE
SECTION 12.01. UNCONDITIONAL GUARANTEE.
(a) Notwithstanding any provision of this Article XII to the contrary, the
provisions of this Article XII relating to the Subsidiary Guarantors shall be
applicable only to, and inure solely to the benefit of, the Debt Securities of
any series designated, pursuant to Section 2.03, as entitled to the benefits of
the related Guarantee of each Subsidiary Guarantor with respect to such series.
(b) For value received, each of the Subsidiary Guarantors hereby fully,
unconditionally and absolutely guarantees (the "Guarantee") to the Holders and
to the Trustee the due and punctual payment of the principal of, and premium, if
any, and interest on the Debt Securities and all other amounts due and payable
under this Indenture and the Debt Securities by the Partnership, when and as
such principal, premium, if any, and interest shall become due and payable,
whether at the stated maturity or by declaration of acceleration, call for
redemption or otherwise, according to the terms of the Debt Securities and this
Indenture, subject to the limitations set forth in Section 12.03.
(c) Failing payment when due of any amount guaranteed pursuant to the
Guarantee set forth in this Article XII, for whatever reason, each of the
Subsidiary Guarantors will be jointly and severally obligated to pay the same
immediately, subject to applicable subordination provisions of Article XIV. The
Guarantee hereunder is intended to be a general, unsecured obligation of each of
the Subsidiary Guarantors and will rank subordinate in right of payment with all
Senior Debt of such Subsidiary Guarantor. Each of the Subsidiary Guarantors
hereby agrees that its obligations hereunder shall be full, unconditional and
absolute, irrespective of the validity, regularity or enforceability of the Debt
Securities, the Guarantee (including the Guarantee of any other Subsidiary
Guarantor) or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Debt
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Securities with respect to any provisions hereof or thereof, the recovery of any
judgment against the Issuers, any other Subsidiary Guarantor, or any action to
enforce the same or any other circumstances which might otherwise constitute a
legal or equitable discharge or defense of the Subsidiary Guarantors. Each of
the Subsidiary Guarantors hereby agrees that in the event of a default in
payment of the principal of, or premium, if any, or interest on the Debt
Securities of the applicable series, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise, legal proceedings
may be instituted by the Trustee on behalf of the Holders or, subject to Section
6.04, by the Holders, on the terms and conditions set forth in this Indenture,
directly against such Subsidiary Guarantor to enforce the Guarantee without
first proceeding against the Issuers or any other Subsidiary Guarantor.
(d) The obligations of each of the Subsidiary Guarantors under this Article
XII shall be as aforesaid full, unconditional and absolute and shall not,
subject to Section 12.04, be impaired, modified, released or limited by any
occurrence or condition whatsoever, including, without limitation, (A) any
compromise, settlement, release, waiver, renewal, extension, indulgence or
modification of, or any change in, any of the obligations and liabilities of the
Issuers or any of the Subsidiary Guarantors contained in the Debt Securities or
this Indenture, (B) any impairment, modification, release or limitation of the
liability of the Issuers, any of the Subsidiary Guarantors or any of their
estates in bankruptcy, or any remedy for the enforcement thereof, resulting from
the operation of any present or future provision of any applicable Bankruptcy
Law, as amended, or other statute or from the decision of any court, (C) the
assertion or exercise by the Issuers, any of the Subsidiary Guarantors or the
Trustee of any rights or remedies under the Debt Securities or this Indenture or
their delay in or failure to assert or exercise any such rights or remedies, (D)
the assignment or the purported assignment of any property as security for the
Debt Securities, including all or any part of the rights of the Issuers or any
of the Subsidiary Guarantors under this Indenture, (E) the extension of the time
for payment by the Issuers or any of the Subsidiary Guarantors of any payments
or other sums or any part thereof owing or payable under any of the terms and
provisions of the Debt Securities or this Indenture or of the time for
performance by the Issuers or any of the Subsidiary Guarantors of any other
obligations under or arising out of any such terms and provisions or the
extension or the renewal of any thereof, (F) the modification or amendment
(whether material or otherwise) of any duty, agreement or obligation of the
Issuers or any of the Subsidiary Guarantors set forth in this Indenture, (G) the
voluntary or involuntary liquidation, dissolution, marshaling of assets and
liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of, or other
similar proceeding affecting, the Issuers or any of the Subsidiary Guarantors or
any of their respective assets, or the disaffirmance of the Debt Securities, the
Guarantee or this Indenture in any such proceeding, (H) the release or discharge
of the Issuers or any of
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the Subsidiary Guarantors from the performance or observance of any agreement,
covenant, term or condition contained in any of such instruments by operation of
law, (I) the unenforceability of the Debt Securities, the Guarantee or this
Indenture or (J) any other circumstances (other than payment in full or
discharge of all amounts guaranteed pursuant to the Guarantee) which might
otherwise constitute a legal or equitable discharge of a surety or guarantor.
(e) Each of the Subsidiary Guarantors hereby (A) waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
the merger, insolvency or bankruptcy of the Issuers or any of the Subsidiary
Guarantors, and all demands whatsoever, (B) acknowledges that any agreement,
instrument or document evidencing the Guarantee may be transferred and that the
benefit of its obligations hereunder shall extend to each holder of any
agreement, instrument or document evidencing the Guarantee without notice to it
and (C) covenants that the Guarantee will not be discharged except by complete
performance of the Guarantee. Each of the Subsidiary Guarantors further agrees
that if at any time all or any part of any payment theretofore applied by any
Person to the Guarantee is, or must be, rescinded or returned for any reason
whatsoever, including the insolvency, bankruptcy or reorganization of the
Issuers or any of the Subsidiary Guarantors, the Guarantee shall, to the extent
that such payment is or must be rescinded or returned, be deemed to have
continued in existence notwithstanding such application, and the Guarantee shall
continue to be effective or be reinstated, as the case may be, as though such
application had not been made.
(f) Each of the Subsidiary Guarantors shall be subrogated to all rights of
the Holders and the Trustee against the Issuers in respect of any amounts paid
by such Subsidiary Guarantor pursuant to the provisions of this Indenture;
provided, however, that such Subsidiary Guarantor shall not be entitled to
enforce or to receive any payments arising out of, or based upon, such right of
subrogation until all of the Debt Securities of the applicable series and the
Guarantee shall have been paid in full or discharged.
SECTION 12.02. EXECUTION AND DELIVERY OF GUARANTEE.
To further evidence the Guarantee set forth in Section 12.01, each
Subsidiary Guarantor hereby agrees that a notation relating to such Guarantee
shall be endorsed on each Debt Security entitled to the benefits of the
Guarantee authenticated and delivered by the Trustee and executed by either
manual or facsimile signature of an Officer of the General Partner or such
Subsidiary Guarantor. Each of the Subsidiary Guarantors hereby agrees that the
Guarantee set forth in Section 12.01 shall remain in full force and effect
notwithstanding any failure to endorse on each Debt Security a notation relating
to the Guarantee. If any Officer of any Subsidiary Guarantor whose
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signature is on the Indenture or a notation of Guarantee no longer holds that
office at the time the Trustee authenticates such Debt Security or at any time
thereafter, the Guarantee of such Debt Security shall be valid nevertheless. The
delivery by the Trustee of any Debt Security of a series entitled to the
benefits of a Guarantee under this Article XII, after the authentication thereof
hereunder, shall constitute due delivery of the Guarantee set forth in this
Indenture on behalf of the Subsidiary Guarantors.
SECTION 12.03. LIMITATION ON LIABILITY OF THE SUBSIDIARY GUARANTORS.
Each Subsidiary Guarantor and, by its acceptance hereof, each Holder of a
Debt Security of a series entitled to the benefits of the Guarantee hereby
confirms that it is the intention of all such Persons that the guarantee by such
Subsidiary Guarantor pursuant to its Guarantee not constitute a fraudulent
transfer or conveyance for purposes of any U.S. federal or state law. To
effectuate the foregoing intention, the Holders of a Debt Security entitled to
the benefits of the Guarantee and the Subsidiary Guarantors hereby irrevocably
agree that the obligations of each Subsidiary Guarantor under its Guarantee
shall be limited to the maximum amount as will, after giving effect to all other
contingent and fixed liabilities of such Subsidiary Guarantor and to any
collections from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under
its Guarantee, result in the obligations of such Subsidiary Guarantor under the
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
U.S. federal or state law.
SECTION 12.04. RELEASE OF SUBSIDIARY GUARANTORS FROM GUARANTEE.
(a) Notwithstanding any other provisions of this Indenture, the Guarantee
of any Subsidiary Guarantor may be released upon the terms and subject to the
conditions set forth in this Section 12.04. If no Default shall have occurred
and shall be continuing under this Indenture, any Guarantee incurred by a
Subsidiary Guarantor pursuant to this Article XII shall be unconditionally
released and discharged automatically: (i) upon any sale, exchange or transfer,
whether by way of merger or otherwise, to any Person that is not an Affiliate of
the Issuers, of all of the Issuers' direct or indirect equity interests in such
Subsidiary Guarantor (provided such sale, exchange or transfer is not prohibited
by this Indenture); (ii) upon the merger of such Subsidiary Guarantor into the
Issuer or any other Subsidiary Guarantor or the liquidation and dissolution of
such Subsidiary Guarantor (in each case to the extent not prohibited by this
Indenture); or (iii) following delivery of a written notice of such release or
discharge by the Issuers to the Trustee, upon the release or discharge of all
guarantees by such Subsidiary Guarantor of any Debt of the Issuers other than
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obligations arising under this Indenture and any Debt Securities issued
hereunder, except a discharge or release by or as a result of payment under such
guarantees.
(b) The Trustee shall deliver an appropriate instrument evidencing any
release of a Subsidiary Guarantor from the Guarantee upon receipt of a written
request of the Issuer accompanied by an Officers' Certificate and an Opinion of
Counsel that the Subsidiary Guarantor is entitled to such release in accordance
with the provisions of this Indenture. Any Subsidiary Guarantor not so released
shall remain liable for the full amount of principal of (and premium, if any)
and interest on the Debt Securities entitled to the benefits of such Guarantee
as provided in this Indenture, subject to the limitations of Section 12.03.
SECTION 12.05. CONTRIBUTION.
In order to provide for just and equitable contribution among the
Subsidiary Guarantors, the Subsidiary Guarantors hereby agree, among themselves,
that if any payment or distribution is made by any Subsidiary Guarantor (a
"Funding Guarantor") under its Guarantee, such Funding Guarantor shall be
entitled to a contribution from each other Subsidiary Guarantor (as applicable)
in a pro rata amount based on the net assets of each Subsidiary Guarantor
(including the Funding Guarantor) for all payments, damages and expenses
incurred by the Funding Guarantor in discharging the Issuers' obligations with
respect to the Debt Securities of a series entitled to the benefits of a
Guarantee under this Article XII or any other Subsidiary Guarantor's obligations
with respect to its Guarantee of such series of Debt Securities.
ARTICLE XIII. MISCELLANEOUS PROVISIONS
SECTION 13.01. SUCCESSORS AND ASSIGNS OF ISSUERS BOUND BY INDENTURE.
Except as otherwise provided herein, all the covenants, stipulations,
promises and agreements in the Indenture by or on behalf of the Issuers, the
Potential Subsidiary Guarantors, the Subsidiary Guarantors or the Trustee shall
bind their respective 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 authorized or required by any provision of the
Indenture to be done or performed by any Board of Directors, committee thereof
or officer of the General Partner, Finance Corp. or any Potential Subsidiary
Guarantor or Subsidiary Guarantor, as applicable, shall and may be done and
performed with like force and effect by the like Board of Directors, committee
thereof or officer of any Successor Company.
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SECTION 13.03. REQUIRED NOTICES OR DEMANDS.
Except as otherwise expressly provided in the Indenture, any notice or
demand which by any provision of the Indenture is required or permitted to be
given to or served on the Issuers, the Potential Subsidiary Guarantors, the
Subsidiary Guarantors or the Trustee shall be in writing in the English language
and may be given or served by being delivered in person or mailed by first-class
mail (registered or certified, return receipt requested), by facsimile or by
overnight air courier guaranteeing next Business Day delivery, to the applicable
address below:
If to either Issuer or any Potential Subsidiary Guarantor or any Subsidiary
Guarantor:
Teekay LNG Partners L.P.
Bayside House, Bayside Executive Park
West Bay Street and Blake Road
P.O. Box AP-59213
Nassau, Commonwealth of the Bahamas
Attn: Secretary
Telephone: (242) 502-8820
Facsimile: (242) 502-8840
If to the Trustee:
The Bank of New York
101 Barclay Street, Fl. 21W
New York, New York 10286
Attn: Corporate Trust Administration
Telephone: (212) 815-5915
Facsimile: (212) 815-5803
Either Issuer, any Potential Subsidiary Guarantor, any Subsidiary Guarantor
or the Trustee by notice to the others may designate additional or different
addresses for subsequent notices or communications.
Any notice required or permitted to a Registered Holder by the Issuers, any
Potential Subsidiary Guarantors, any Subsidiary Guarantors or the Trustee
pursuant to the provisions of the Indenture shall be in writing in the English
language and shall be deemed to be properly delivered if mailed by first-class
mail (registered or certified, return receipt requested) or sent by overnight
air courier guaranteeing next Business Day delivery, addressed to such Holder at
the address of such Holder as shown on the
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Debt Security Register. Any report pursuant to Section 313 of the Trust
Indenture Act shall be transmitted in compliance with subsection (c) therein.
Unless otherwise set forth in the Indenture, all notices and communications
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when receipt is acknowledged, if by given by
facsimile; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next Business Day delivery.
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.
Failure to mail or otherwise deliver 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, sent or published in the manner provided
herein, it is conclusively presumed duly given.
SECTION 13.04. INDENTURE AND DEBT SECURITIES TO BE CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE State of New York.
The 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 such State.
SECTION 13.05. OFFICERS' CERTIFICATE AND OPINION OF COUNSEL TO BE FURNISHED UPON
APPLICATION OR DEMAND BY THE ISSUERS.
Upon any application or demand by the Issuers or any Potential Subsidiary
Guarantors or Subsidiary Guarantors to the Trustee to take any action under any
of the provisions of the Indenture, the Issuers, Potential Subsidiary Guarantors
or Subsidiary Guarantors, as applicable, shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent provided for in the
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 the Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
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Each certificate or opinion provided for in the Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in the 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 condition or covenant 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, 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 the Indenture limits, qualifies
or conflicts with another provision included in the Indenture which is required
to be included in the 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.
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SECTION 13.10. NO RECOURSE AGAINST OTHERS.
No past, present or future director, officer, partner, employee,
incorporator, manager, stockholder, unitholder or member of either Issuer, the
General Partner, any Potential Subsidiary Guarantor, any Subsidiary Guarantor or
any other obligor on the Debt Securities of any series, as such, shall have any
liability for any obligations of the Issuers, the Potential Subsidiary
Guarantors, the Subsidiary Guarantors or such other obligors under the Debt
Securities, the Indenture or for any claim based on, in respect of, or by reason
of, such obligations or their creation. Each Holder by accepting a Debt Security
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Debt Securities.
SECTION 13.11. SEVERABILITY.
In case any provision in the Indenture or 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.
The Indenture may be executed in any number of counterparts, each of which
shall be an original, but such counterparts shall together constitute but one
and the same instrument.
SECTION 13.14. CONSENT TO SERVICE; JURISDICTION.
(a) The Issuers, the Potential Subsidiary Guarantors, the Subsidiary
Guarantors and the Trustee agree that any legal suit, action or proceeding
arising out of or relating to the Indenture, and the Issuers, the Potential
Subsidiary Guarantors and the Subsidiary Guarantors agree that any legal suit,
action or proceeding arising out of or relating to the Debt Securities, may be
instituted in any federal or state court in the Borough of Manhattan, the City
of New York. Each Issuer, Potential Subsidiary Guarantor and Subsidiary
Guarantor and the Trustee waives any objection which it may now or hereafter
have to the laying of the venue of any such legal suit, action or proceeding,
waive any immunity from jurisdiction or to service of process in respect of any
such suit, action or proceeding, and irrevocably submit to the exclusive
jurisdiction of any such court in any such suit, action or proceeding.
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(b) Each Issuer, Potential Subsidiary Guarantor and Subsidiary Guarantor
hereby designates and appoints Watson, Farley & Williams (New York) LLP as its
authorized agent upon which process may be served in any legal suit, action or
proceeding arising out of or relating to the Indenture or the Debt Securities
which may be instituted in any federal or state court in the Borough of
Manhattan, the City of New York, New York, and agrees that service of process
upon such agent, and written notice of such service to such Issuer, Potential
Subsidiary Guarantor or Subsidiary Guarantor by the Person serving the same,
shall be deemed in every respect effective service of process upon such Issuer,
Potential Subsidiary Guarantor or Subsidiary Guarantor in any such suit, action
or proceeding and further designates its domicile, the domicile of New York, New
York specified above and any domicile it may have in the future as its domicile
to receive any notice hereunder (including service of process). Service of
process, to be effective upon the Trustee, must be served at the Corporate Trust
Office of the Trustee in The City of New York. If for any reason Watson, Farley
& Williams (New York) LLP (or any successor agent for this purpose) shall cease
to act as agent for service of process as provided above, the Issuers, the
Potential Subsidiary Guarantors and the Subsidiary Guarantors will promptly
appoint a successor agent for this purpose reasonably acceptable to the Trustee.
Each Issuer, Potential Subsidiary Guarantor and Subsidiary Guarantor agrees to
take any and all actions as may be necessary to maintain such designation and
appointment of such agent in full force and effect.
SECTION 13.15. WAIVER OF TRIAL BY JURY.
The Issuers, the Potential Subsidiary Guarantors, the Subsidiary
Guarantors, the Trustee and Holders hereby irrevocably and unconditionally waive
the right to trial by jury in connection with any claim arising out of or
relating to the Debt Securities and under the Indenture.
ARTICLE XIV. SUBORDINATION OF DEBT SECURITIES AND GUARANTEES
SECTION 14.01. APPLICABILITY OF ARTICLE; AGREEMENT TO SUBORDINATE.
The provisions of this Article XIV shall be applicable to the Debt
Securities of any series (Debt Securities of such series being referred to in
this Article XIV as "Subordinated Debt Securities") under the Indenture and any
related Guarantees of such Subordinated Debt Securities except to the extent
such provisions may be changed or added to pursuant to Section 2.03. Each Holder
by accepting a Subordinated Debt Security agrees that the indebtedness evidenced
by such Subordinated Debt Security and any related Guarantees of such
Subordinated Debt Security is subordinated in right of payment, to the extent
and in the manner provided in this Article XIV (as the same may be changed or
added to pursuant to Section 2.03
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or by any supplemental Indenture), 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 XIV shall be
subject to Section 14.12.
SECTION 14.02. LIQUIDATION, DISSOLUTION, BANKRUPTCY.
Upon any payment or distribution of the assets of an applicable Issuer or
Subsidiary Guarantor to creditors upon a voluntary or involuntary liquidation or
a dissolution of such Issuer or Subsidiary Guarantor in a bankruptcy,
reorganization, insolvency, receivership or similar proceeding relating to such
Person or its property:
(1) holders of Senior Indebtedness of the Issuer or Subsidiary Guarantor,
as applicable, 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 Issuer or Subsidiary Guarantor in such bankruptcy proceeding) before
Holders of Subordinated Debt Securities and any related Guarantees shall be
entitled to receive any payment of principal of, or premium, if any, or interest
on, the Subordinated Debt Securities from the Issuer, or any payment in respect
of such related Guarantee from the Subsidiary Guarantor; and
(2) until the Senior Indebtedness of the Issuer or Subsidiary Guarantor is
paid in full, any distribution to which Holders of Subordinated Debt Securities
and any related Guarantee would be entitled but for this Article XIV shall be
made to holders of Senior Indebtedness of the Issuer or the Subsidiary
Guarantor, as applicable, as their interests may appear, except that such
Holders may receive Equity Interests and any debt securities that are
subordinated to Senior Indebtedness of the Issuer or the Subsidiary Guarantor,
as applicable, to at least the same extent as the Subordinated Debt Securities
of such Issuer or the related Guarantee of such Subsidiary Guarantor.
SECTION 14.03. DEFAULT ON SENIOR INDEBTEDNESS.
No Issuer or Subsidiary Guarantor, as applicable, may pay the principal of,
or premium, if any, or interest on, the Subordinated Debt Securities or any
related Guarantee or make any deposit into a defeasance trust or 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
Issuers 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, interest or any other amount payable in respect of Senior
Indebtedness of such Person is not paid within
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any applicable grace period (including at maturity) or (ii) any other default on
Senior Indebtedness of such Person occurs 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 any Issuer or Subsidiary Guarantor may pay the
Subordinated Debt Securities without regard to the foregoing if such Person 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 Designated 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, no Issuer or
Subsidiary Guarantor, as applicable, may pay the Subordinated Debt Securities or
any related Guarantee for a period (a "Payment Blockage Period") commencing upon
the receipt by the Issuers 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 Issuers 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 14.03), 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
Issuers and Subsidiary Guarantors may resume payments on the Subordinated Debt
Securities and any related Guarantees 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
Designated Senior Indebtedness during such period. For purposes of this Section
14.03, 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
Designated Senior Indebtedness initiating such Payment Blockage Period shall be,
or be made, the basis of the commencement of a subsequent Payment Blockage
Period by the Representative of such Designated 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.
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SECTION 14.04. ACCELERATION OF PAYMENT OF DEBT SECURITIES.
If payment of the Subordinated Debt Securities is accelerated because of an
Event of Default, the Issuers or the Trustee shall promptly notify the holders
of the Designated Senior Indebtedness (or their Representatives) of the
acceleration.
SECTION 14.05. WHEN DISTRIBUTION MUST BE PAID OVER.
If a distribution is made to Holders of Subordinated Debt Securities or any
related Guarantee that because of this Article XIV 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 14.06. 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 XIV to holders of
Senior Indebtedness which otherwise would have been made to Holders of
Subordinated Debt Securities is not, as between the Issuers or the Subsidiary
Guarantors, as applicable, and such Holders, a payment by the Issuers or the
Subsidiary Guarantors on Senior Indebtedness.
SECTION 14.07. RELATIVE RIGHTS.
This Article XIV defines the relative rights of Holders of Subordinated
Debt Securities and holders of Senior Indebtedness. Nothing in the Indenture
shall:
(1) impair, as between the Issuers or the Subsidiary Guarantors, as
applicable, and Holders of Subordinated Debt Securities, the obligation of the
applicable Issuer or Issuers or Subsidiary Guarantors, which is absolute and
unconditional, to pay principal of, and premium, if any, and interest on, the
Subordinated Debt Securities or amounts owing under the related Guarantees, as
applicable, in accordance with their respective terms; or
(2) prevent the Trustee or any Holder of Subordinated Debt Securities from
exercising its available remedies upon an Event of Default, subject to the
rights of holders of Senior Indebtedness to receive distributions otherwise
payable to Holders of Subordinated Debt Securities.
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SECTION 14.08. SUBORDINATION MAY NOT BE IMPAIRED BY ISSUERS OR SUBSIDIARY
GUARANTORS.
No right of any holder of Senior Indebtedness to enforce the subordination
of the indebtedness evidenced by the Subordinated Debt Securities and any
related Guarantees shall be impaired by any act or failure to act by the
applicable Issuers or Subsidiary Guarantors, as applicable, by their failure to
comply with the Indenture.
SECTION 14.09. RIGHTS OF TRUSTEE AND PAYING AGENT.
Notwithstanding Section 14.03, 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 XIV. The Issuers, 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 the 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 XIV 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 XIV shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.06.
SECTION 14.10. 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 14.11. ARTICLE XIV NOT TO PREVENT DEFAULTS OR LIMIT RIGHT TO ACCELERATE.
The failure to make a payment pursuant to the Debt Securities, whether
directly or pursuant to the related Guarantees, if any, by reason of any
provision in this Article XIV shall not be construed as preventing the
occurrence of a Default or Event of Default. Nothing in this Article XIV shall
have any effect on the right of the Holders or the Trustee to accelerate the
maturity of the Subordinated Debt Securities.
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SECTION 14.12. TRUST MONEYS NOT SUBORDINATED.
Notwithstanding anything contained herein to the contrary, payments from
money or the proceeds of U.S. Government Obligations held in a defeasance trust
or 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 shall not be
subordinated to the prior payment of any Senior Indebtedness or subject to the
restrictions set forth in this Article XIV, and none of the Holders thereof
shall be obligated to pay over any such amount to the Issuers, any Subsidiary
Guarantors or any holder of Senior Indebtedness or any other creditor of the
Issuers or Subsidiary Guarantors.
SECTION 14.13. TRUSTEE ENTITLED TO RELY.
Upon any payment or distribution pursuant to this Article XIV, 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 14.02 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 Issuers or the Subsidiary Guarantors,
the amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article XIV. 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 XIV, 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 XIV, 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 XIV.
SECTION 14.14. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder by accepting a Subordinated Debt Security and any related
Guarantee authorizes and directs the Trustee on such Holder's 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
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Senior Indebtedness as provided in this Article XIV and appoints the Trustee as
attorney-in-fact for any and all such purposes.
SECTION 14.15. 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 Issuers, any Subsidiary Guarantor or any other Person, money or assets to
which any holders of Senior Indebtedness shall be entitled by virtue of this
Article XIV or otherwise.
SECTION 14.16. RELIANCE BY HOLDERS OF SENIOR INDEBTEDNESS ON SUBORDINATION
PROVISIONS.
Each Holder by accepting a Subordinated Debt Security or any related
Guarantee 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.
[Remainder of this Page Intentionally Left Blank]
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The Trustee hereby accepts the trusts in the Indenture upon the terms and
conditions herein set forth.
IN WITNESS WHEREOF, the parties hereto have caused the Indenture to be duly
signed as of the date first written above.
ISSUERS:
TEEKAY LNG PARTNERS, L.P.
By: TEEKAY GP L.L.C.,
its General Partner
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
TEEKAY LNG FINANCE CORP.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
TRUSTEE:
THE BANK OF NEW YORK
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-1
POTENTIAL SUBSIDIARY GUARANTORS:
TEEKAY LNG OPERATING L.L.C.
By: Teekay LNG Partners L.P., its sole
member
By: Teekay GP L.L.C., its General
Partner
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
AFRICAN SPIRIT L.L.C.
By: Teekay LNG Operating L.L.C., it sole
member
By: Teekay LNG Partners L.P., its sole
member
By: Teekay GP L.L.C., its General
Partner
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ASIAN SPIRIT L.L.C.
By: Teekay LNG Operating L.L.C., it sole
member
By: Teekay LNG Partners L.P., its sole
member
By: Teekay GP L.L.C., its General
Partner
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-2
EUROPEAN SPIRIT L.L.C.
By: Teekay LNG Operating L.L.C., it sole
member
By: Teekay LNG Partners L.P., its sole
member
By: Teekay GP L.L.C., its General
Partner
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
TEEKAY LUXEMBOURG S.A.R.L.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
TEEKAY SPAIN, S.L.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
TEEKAY II IBERIA S.L.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-3
TEEKAY SHIPPING SPAIN, S.L.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
NAVIERA TEEKAY GAS, S.L.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
NAVIERA TEEKAY GAS II, S.L.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
NAVIERA TEEKAY GAS III, S.L.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
NAVIERA TEEKAY GAS IV, S.L.
By
-------------------------------------
Name:
----------------------------------
Title:
---------------------------------
S-4