1
EXHIBIT 4.1
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MESA INC.
and
MESA OPERATING CO.,
Issuers
and
FIRST FIDELITY BANK,
NATIONAL ASSOCIATION,
Trustee
____________________
SENIOR INDENTURE
Dated as of _____ __, ____
____________________
Unsecured Senior Debentures, Notes and Other
Evidences of Indebtedness
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2
CROSS-REFERENCE TABLE
TIA Section Indenture Section
- - ----------- -----------------
310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.08; 7.10; 10.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.05
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.03
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.02
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.06
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.02; 4.05; 10.02
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.04
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.05
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.05; 10.02
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.01(c)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.11
316(a)(last sentence) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.09
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . N.A.
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.12
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.04
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.01
N.A. means Not Applicable.
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02. Other Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.03. Incorporation by Reference of Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 1.04. Rules of Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 2.02. Execution and Authentication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2.03. Registrar and Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.04. Paying Agent to Hold Money in Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.05. Securityholder Lists . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 2.06. Transfer and Exchange . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.07. Replacement Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.08. Outstanding Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.09. Treasury Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 2.10. Temporary Securities; Global Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 2.11. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 2.12. Defaulted Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 3
REDEMPTION; SINKING FUND
SECTION 3.01. Notices to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 3.02. Selection of Securities to be Redeemed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.03. Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 3.04. Effect of Notice of Redemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.05. Deposit of Redemption Price . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.06. Securities Redeemed in Part . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.07. Sinking Fund . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
SECTION 3.08. Terms of Securities to Govern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.02. SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.03. Certificate to Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.04. Maintenance of Office or Agency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.05. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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ARTICLE 5
SUCCESSORS
SECTION 5.01. When Issuers May Merge, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 6.02. Acceleration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 6.03. Other Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 6.04. Waiver of Existing Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 6.05. Control by Majority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 6.06. Limitation on Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 6.07. Rights of Holders to Receive Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 6.08. Collection Suit by Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.09. Trustee May File Proofs of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.10. Priorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 6.11. Undertaking for Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.02. Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 7.03. Individual Rights of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.04. Trustee's Disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.05. Notice of Defaults . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.06. Reports by Trustee to Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.07. Compensation and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 7.08. Replacement of Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
SECTION 7.09. Successor Trustee by Merger, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 7.10. Eligibility, Disqualification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 7.11. Preferential Collection of Claims Against Issuers . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE 8
DISCHARGE OF INDENTURE AND SECURITIES
SECTION 8.01. Satisfaction and Discharge of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 8.02. Defeasance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 8.03. Satisfaction and Discharge of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 8.04. Application by Trustee of Money or U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . 24
SECTION 8.05. Repayment of Money or U.S. Government Obligations by Paying Agent . . . . . . . . . . . . . . . . . . . 24
SECTION 8.06. Return of Money, Securities or U.S. Government Obligations . . . . . . . . . . . . . . . . . . . . . . 24
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ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 9.02. With Consent of Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 9.03. Compliance with Trust Indenture Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 9.04. Effect of Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 9.05. Notation on or Exchange of Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 9.06. Trustee Protected . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act Controls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 10.02. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 10.03. Communications by Holders with Other Holders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 10.04. Certificate and Opinion as to Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 10.05. Statements Required in Certificate or Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
SECTION 10.06. Rules by Trustee and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 10.07. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 10.08. No Recourse Against Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 10.09. Interest Limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 10.10. Duplicate Originals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 10.11. Addresses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 10.12. Record Date for Action by Securityholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 10.13. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 10.14. Payments for Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 10.15. Effect of Headings and Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 10.16. No Adverse Interpretation of Other Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 10.17. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 10.18. Successors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 10.19. Qualification of Indenture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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SENIOR INDENTURE, dated as of _________ ___, _____, among MESA INC., a
corporation incorporated and existing under the laws of the State of Texas, and
MESA OPERATING CO., a corporation incorporated and existing under the laws of
the State of Delaware (each an "Issuer" and collectively, the "Issuers"), and
First Fidelity Bank, National Association, a national banking association, as
trustee and not in its individual capacity (the "Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the holders of the Issuers' unsecured
senior debentures, notes and other evidences of indebtedness from time to time
authenticated and delivered pursuant to this Indenture, which may be issued in
one or more series, each such series ranking pari passu with each other series:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Affiliate" of any specified person means any other person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person. For the purposes of this
definition, "control" when used with respect to any person means the power to
direct the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent" means any Registrar or Paying Agent.
"Board Resolution" means a copy of a resolution delivered to the
Trustee and certified (i) by the Secretary or an Assistant Secretary of the
Company to have been duly adopted by the Company Board and to be in full force
and effect on the date of such certification and (ii) by the Secretary or
Assistant Secretary of Operating to have been duly adopted by the Operating
Board and to be in full force and effect on the date of such certification.
"Company" means MESA Inc., a Texas corporation, until a successor
replaces it and thereafter such successor.
"Company Board" means the board of directors of the Company or any
authorized committee of such board of directors.
"Debt", with respect to any person, means the following, whether
outstanding on the date hereof or thereafter created or incurred: (1) any
liability of such person (a) for borrowed money, (b) evidenced by a note, bond,
debenture or similar instrument (including a purchase money obligation) given
in connection with the acquisition of or exchange for any property or assets
(other than inventory or similar property acquired in the ordinary course of
business), including securities and other Debt or (c) in respect of letters of
credit issued for its account; (2) any liability of others described in the
preceding clause (1) which the person has guaranteed or which is otherwise its
legal liability or which is secured by assets of such person; and (3) any
amendment, renewal, extension or refunding of any such liability described in
the preceding clauses (1) and (2); provided, however, that "Debt" of a person
shall not include any liability of such person for compensation to employees or
for inventory or similar property acquired in the ordinary course of business
or for services.
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"Default" means any event which is, or after notice or the passage of
time, or both, would be, an Event of Default.
"Depositary" means a clearing agency registered under the Securities
Exchange Act of 1934, as amended, or any successor thereto, which shall be
designated by the Issuers pursuant to Section 2.01 until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depositary" shall mean or include each person who is then a
Depositary hereunder, and if at any time there is more than one such person,
shall mean or include all such persons. "Depositary" as used with respect to
the Securities of any series shall mean the Depositary with respect to the
Securities of that series.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles as in effect in
the United States of America as of any date of determination.
"Global Security" means a Security registered in the name of the
Depositary or its nominee evidencing all or part of a series of Securities,
which is executed by the Issuers and authenticated and delivered to the
Depositary or pursuant to the Depositary's instructions, all in accordance with
this Indenture and pursuant to a written order of the Issuers signed by two
Officers of each of the Issuers.
"Holder" or "Securityholder" means a person in whose name a Security
is registered in the Security Register.
"Indenture" means this Senior Indenture as amended or supplemented
from time to time pursuant to the applicable provisions of this Indenture, and
shall include the form and terms of each particular series of Securities
established pursuant to Section 2.01 hereof.
"Interest Payment Date" means the date on which payment of an
installment of interest on the Securities of any series is due.
"Issuers" means (i) the Company, until a successor replaces the
Company pursuant to the applicable provisions of this Indenture, and thereafter
such successor and (ii) Operating, until a successor replaces Operating
pursuant to the applicable provisions of this Indenture, and thereafter such
successor.
"Material Subsidiary" means any consolidated subsidiary of the Company
(whether a corporation or a partnership or other entity not organized as a
corporation) if such consolidated subsidiary would be deemed a "significant
subsidiary" under the rules and regulations promulgated by the SEC under the
Securities Act.
"Maturity" when used with respect to any Security means the date on
which the Principal of such Security or an installment of Principal becomes due
and payable as therein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, pursuant to a sinking fund or
otherwise.
"Officer" means, with respect to an Issuer, the Chairman of the Board,
Vice Chairman of the Board, President, any Vice President, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of such Issuer
and who is identified on the list of officers delivered by the Issuers to the
Trustee on the date hereof (as such list may be modified or supplemented by the
Issuers from time to time thereafter).
"Officers' Certificate" means a certificate signed by two Officers of
each of the Issuers.
"Operating" means Mesa Operating Co., a Delaware corporation, until a
successor replaces it and thereafter such successor.
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"Operating Board" means the board of directors of Operating or any
authorized committee of such board of directors.
"Opinion of Counsel" means a written opinion in form and substance
reasonably acceptable to the Trustee from legal counsel who is reasonably
acceptable to the Trustee. Such counsel may be an employee of or counsel to
the Trustee or the Issuers.
"Original Issue Discount Security" means any Security which provides
for an amount less than the stated principal amount thereof to be due and
payable upon declaration of acceleration of the Stated Maturity thereof
pursuant to Section 6.02.
"person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or other agency or political subdivision thereof.
"Principal" of a Security means the principal of the Security, plus
the premium, if any, on the Security. In determining whether the Holders of
the requisite Principal amount of any series of Original Issue Discount
Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the Principal amount of any Original Issue
Discount Security 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 Stated Maturity thereof pursuant to
Section 6.02.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 2.01.
"SEC" means the Securities and Exchange Commission.
"Securities" means the unsecured senior debentures, notes and other
evidences of indebtedness (including any Global Securities) authenticated and
delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Stated Maturity" when used with respect to any Security or any
installment of Principal thereof means the date specified in such Security as
the fixed date on which the Principal of such Security or such installment of
Principal is due and payable.
"Subsidiary" means (i) a corporation a majority of whose outstanding
capital stock with voting power, under ordinary circumstances, to elect
directors is at the time, directly or indirectly, owned by the Company, by one
or more Subsidiaries or by the Company and one or more Subsidiaries or (ii) any
other person (other than a corporation) in which the Company, one or more
Subsidiaries or the Company and one or more Subsidiaries, directly or
indirectly, at the date of determination thereof, have at least a majority
beneficial ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb) (together with any rules or regulations promulgated thereunder)
as in effect on the date first above written, except to the extent that any
subsequent amendment thereto shall retroactively apply to this Indenture.
"Trustee" means the party named as such above, not in its individual
capacity but solely as Trustee under this Indenture, or any other trustee
appointed with respect to the Securities of any series as contemplated by
Section 2.01, in each case until a successor replaces it with respect to the
Securities of one or more series pursuant to the applicable provisions of this
Indenture, and thereafter with respect to the Securities of such one or more
series shall mean the successor.
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"Trust Officer" means the Chairman of the Board, the President or any
other officer or assistant officer of the Trustee assigned by the Trustee to
administer its corporate trust matters.
"U.S. Government Obligations" means direct obligations of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged and which are not callable at the issuer's
option.
SECTION 1.02. Other Definitions.
DEFINED IN
TERM SECTION
---- -------
"Bankruptcy Law" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Custodian" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Event of Default" . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.01
"Legal Holiday" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.07
"Paying Agent" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"Registrar" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
"Security Register" . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.03
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Issuers.
All other terms used in this Indenture that are defined by the TIA, defined by
TIA reference to another statute or defined by SEC rule under the TIA have the
meanings assigned to them by such statute or rule, except as provided in
Section 7.10.
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) words in the singular include the plural, and in the
plural include the singular; and
(5) provisions apply to successive events and
transactions.
(6) "herein", "hereof" and other words of similar import
refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision, and
the terms "Article," "Section," "Exhibit" and
"Schedule," unless otherwise specified or indicated
by the
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context in which used, mean the corresponding Article
or Section of, or the corresponding Exhibit or
Schedule to, this Indenture; and
(7) references to agreements and other instruments
include subsequent amendments, supplements and
waivers to such agreements or instruments but only to
the extent not prohibited by this Indenture.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities of each series shall
be in such form as shall be established by or pursuant to a Board Resolution or
in one or more indentures supplemental hereto, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and in case such form is not established by
supplemental indenture, such form shall be approved by the Trustee if the
Trustee's rights or obligations are affected thereby, and such form may further
have such legends, notations or endorsements as may be required by law, stock
exchange rules or usage.
Each Security shall be in fully-registered form and shall be dated the
date of its authentication.
The Securities may be issued in one or more series. There shall be
established by or pursuant to a Board Resolution, and set forth in an Officers'
Certificate delivered to the Trustee, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series, the
following terms with respect to such series, and thereafter such terms shall be
deemed to be a part of this Indenture (it being understood and agreed that, in
the case of any terms to be established by or pursuant to a Board Resolution
which, if established, would affect the rights, duties, obligations,
liabilities or immunities of the Trustee, such terms shall not be deemed to be
a part of the Indenture unless and until they shall have been approved by the
Trustee):
(1) the title of the Securities of such series (which
shall distinguish the Securities of such series from all other
Securities);
(2) any limit upon the aggregate Principal amount of the
Securities of such series which may be authenticated and delivered
under this Indenture (except for Securities of such series
authenticated and delivered upon transfer of, or in exchange for, or
in lieu of, other Securities of such series pursuant to Section 2.06,
2.07, 2.10, 3.06 or 9.05);
(3) the date or dates on which the Principal of the
Securities of such series is payable or the manner of determining such
date or dates;
(4) the rate or rates at which the Securities of such
series shall bear interest, if any, or the method or methods of
calculating such rate or rates of interest and the date or dates from
which such interest shall accrue;
(5) the Interest Payment Dates on which such interest
shall be payable and the Regular Record Dates for the interest payable
on any Interest Payment Date;
(6) the place or places where the Principal of and
interest on the Securities of such series shall be payable or the
method of paying Principal of and interest on the Securities of such
series;
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(7) the period or periods within which, the price or
prices at which, and the terms and conditions upon which Securities of
such series may be redeemed, in whole or in part, at the option of the
Issuers;
(8) the obligation, if any, of the Issuers to redeem or
purchase Securities of such series pursuant to any sinking fund or
analogous provisions or at the option of the Holder thereof and the
period or periods within which, the price or prices at which, and the
terms and conditions upon which Securities shall be redeemed or
purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities shall
be issuable;
(10) if Securities of such series constitute Original
Issue Discount Securities, the portion of the Principal amount of
Securities which shall be payable upon declaration of acceleration
thereof pursuant to Section 6.02;
(11) any covenants of the Issuers, for the benefit of the
Holders of Securities of such series, in addition to those set forth
in Article 4;
(12) any Events of Default with respect to the Securities
of such series in addition to those set forth in Section 6.01;
(13) whether the Securities of such series shall be
issued, in whole or in part, in the form of one or more Global
Securities and, in such case, the Depositary for such Global Security
or Securities;
(14) the identity of any trustee, authenticating agent,
Paying Agent or Registrar with respect to the Securities of such
series, if other than the Trustee;
(15) the period or periods within which, the price or
prices at which, and the terms and conditions upon which Securities of
such series may be converted into other securities of an Issuer; and
(16) any other terms with respect to the Securities of
such series (which terms shall not be inconsistent with the provisions
of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided by or
pursuant to the Board Resolution and set forth in the Officers' Certificate
delivered to the Trustee or as provided pursuant to an indenture supplemental
hereto with respect to such series. All Securities of any one series need not
be issued at the same time, and unless otherwise provided, a series may be
reopened for issuance of additional Securities of such series.
SECTION 2.02. Execution and Authentication. An Officer of each of
the Issuers shall sign the Securities for the Issuers by manual or facsimile
signature and the seal of each of the Issuers shall be reproduced on the
Securities and attested by the manual or facsimile signature of an authorized
Officer of the Issuers.
If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall be valid
nevertheless.
A Security shall not be valid until authenticated by the Trustee by
manual signature. The Trustee's certificate of authentication of all
Securities shall be in substantially the following form:
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This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
First Fidelity Bank, National Association, as Trustee
By:_________________________
Authorized Signatory
The manual signature of the Trustee on a certificate of authentication
in the form hereinabove provided for shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee shall at any time and from time to time authenticate
Securities for original issue, upon a written order of the Issuers signed by
two Officers of each of the Issuers.
In authenticating Securities of a particular series, and accepting the
additional responsibilities under this Indenture in relation to such series of
Securities, the Trustee shall be entitled to receive and (subject to Section
7.01) shall be fully protected in relying upon:
(1) certified copies of the charter and bylaws of each of
the Issuers;
(2) each Board Resolution relating to the Securities of
such series, and if the form or forms of the Securities of such series
and the terms with respect thereto are established by a Board
Resolution, an Officers' Certificate (i) approving the form or forms
of the Securities of such series and the terms with respect thereto,
to the extent such terms have been established (and, if the Securities
of such series are Original Issue Discount Securities, setting forth
such facts as are necessary to compute amounts due upon acceleration,
if such facts are not specified in the form of Security) and (ii)
stating that all conditions precedent to the issuance and
authentication of the Securities of such series have been complied
with;
(3) an executed supplemental indenture (if any) relating
to such Securities;
(4) an Opinion of Counsel, which shall state
(a) that the terms with respect to the Securities
of such series have been established by or pursuant to a Board
Resolution or by a supplemental indenture as permitted by, and
in conformity with, the provisions of this Indenture;
(b) that the Securities of such series, when
authenticated and delivered by the Trustee and issued by the
Issuers in the manner and subject to any further conditions
specified in such Opinion of Counsel that are reasonably
acceptable to the Trustee, will constitute valid and binding
obligations of the Issuers, enforceable against the Issuers in
accordance with their terms, except insofar as (i) such
enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally
and (ii) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought; and
(c) that all conditions precedent to the
execution and delivery by the Issuers of the Securities have
been complied with; and
If all Securities of a series are not to be originally issued at one
time, it shall not be necessary to deliver the Officers' Certificate or the
Opinion of Counsel otherwise required pursuant to Section 2.01 and this Section
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2.02 at or prior to the time of authentication of each Security of such series
if such documents have been delivered at or prior to the authentication upon
original issuance of the first Security of such series.
The Trustee shall not be required to authenticate any Securities if
such action may not lawfully be taken or will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture in a manner which
is not reasonably acceptable to the Trustee.
The aggregate Principal amount of Securities of any series outstanding
at any time may not exceed any limit upon the maximum Principal amount for such
series set forth in or pursuant to the Board Resolution or supplemental
indenture relating to such series delivered pursuant to this Section 2.02,
except as authorized pursuant to Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the
Issuers to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so, provided that only the Trustee may
authenticate Securities pursuant to Section 2.07. Each reference in this
Indenture to authentication by the Trustee includes authentication by an
authenticating agent. An authenticating agent has the same rights as an Agent
to deal with the Issuers or an Affiliate of an Issuer.
SECTION 2.03. Registrar and Paying Agent. The Issuers shall maintain
an office or agency where Securities may be presented to the registrar
("Registrar") for registration of transfer or for exchange and an office or
agency where Securities may be presented to the paying agent ("Paying Agent")
for payment; provided, however, that at the option of the Issuers payment of
interest may be made by check mailed on or before the due date to the address
of the person entitled thereto as such address shall appear in the register of
the Securities provided for in this Section. The Registrar shall keep a
register of the Securities (the "Security Register") and of their transfer and
exchange. The Issuers may appoint one or more co-registrars and one or more
additional paying agents with respect to any one or more series. The
"Registrar" includes any co-registrar and the term "Paying Agent" includes any
additional paying agent. The Issuers shall notify the Trustee of the name and
address of any Registrar or Paying Agent not a party to this Indenture. If the
Issuers fail to maintain a Registrar or Paying Agent for the Securities, the
Trustee shall act as such. The Issuers initially appoint the Trustee as Paying
Agent and Registrar.
SECTION 2.04. Paying Agent to Hold Money in Trust. The Issuers shall
require each Paying Agent other than the Trustee to agree in writing that the
Paying Agent will (i) hold in trust for the benefit of Securityholders of any
series or the Trustee all money held by the Paying Agent for the payment of
Principal of or interest on the Securities of such series, (ii) notify the
Trustee of any default by the Issuers in making any such payment and (iii) pay
to the Trustee all sums so held in trust by such Paying Agent, upon written
request of the Trustee at any time during the continuance of an Event of
Default. If either of the Issuers acts as Paying Agent, it shall segregate the
money and hold it as a separate trust fund. The Issuers at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon doing
so, the Paying Agent shall have no further liability for the money.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Holders of Securities of each series. If the
Trustee is not the Registrar with respect to Securities of any series, the
Issuers shall furnish to the Trustee on or before each Interest Payment Date
for such Securities (and on dates to be determined in the manner provided in
Section 2.01 for any series of Original Issue Discount Securities which by
their terms bear interest only after Maturity), but in no case less frequently
than semiannually, and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Holders of the Securities of such series.
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SECTION 2.06. Transfer and Exchange. Subject to the provisions of
Section 2.10, where Securities are presented to the Registrar with a request to
register transfer or to exchange them for an equal Principal amount of
Securities of the same series of other denominations, the Registrar shall
register the transfer or make the exchange if its requirements for such
transactions are met. The Registrar shall not be required to register the
transfer or exchange of (i) Securities of any series during a 15-day period
beginning at the opening of business 15 days before the day of mailing of a
redemption notice pursuant to Section 3.03 with respect to Securities of such
series or (ii) any Security selected for redemption in whole or in part, except
the unredeemed portion of a Security redeemed in part. Every Security
presented or surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and the Registrar duly executed by the Holder or his attorney duly
authorized in writing, along with a certification of non-foreign status duly
executed by the transferee of such Security. Each Security surrendered for
registration of transfer and exchange shall be cancelled and subsequently
disposed of by the Trustee in accordance with its customary practice. To
permit registration of transfer and exchanges, the Trustee shall authenticate
Securities at the Registrar's request. No service charge shall be made to any
Securityholder for any transfer or exchange of Securities, except that the
Issuers may require payment of a sum sufficient to cover any tax or other
governmental charge which may be imposed in relation to any such transfer or
exchange, other than exchanges pursuant to Section 2.10, 3.06 or 9.05.
Notwithstanding the foregoing, Securities of a series may be exchanged only for
Securities of the same series having identical terms.
SECTION 2.07. Replacement Securities. If the Holder of a Security
claims that the Security has been lost, mutilated, destroyed or wrongfully
taken, the Issuers shall issue and the Trustee shall authenticate and deliver,
in exchange for or in lieu of any such lost, mutilated, destroyed or wrongfully
taken Security, a replacement Security of the same series having identical
terms if the Trustee's requirements are met. If required by the Trustee or the
Issuers, such Holder shall provide an indemnity bond sufficient in the judgment
of the Trustee and the Issuers to protect the Issuers, the Trustee, any Agent
or any authenticating agent from any loss which any of them may suffer if a
Security is replaced. In connection with the issuance of any replacement
Security under this Section, the Trustee or the Registrar may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith. Any replacement Security issued
pursuant to this Section shall constitute conclusive evidence of ownership of
such Security, as if originally issued, regardless of whether the lost,
mutilated, destroyed or wrongfully taken Security shall be found at any time.
SECTION 2.08. Outstanding Securities. The Securities outstanding at
any time are all the Securities authenticated by the Trustee, except for those
cancelled by it, those delivered to it for cancellation, and those described in
this Section as not outstanding.
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If Securities are considered paid under Section 4.01, they cease to be
outstanding and interest on them ceases to accrue.
Subject to the provisions of Section 2.09, a Security does not cease
to be outstanding because an Issuer or an Affiliate of an Issuer holds the
Security.
SECTION 2.09. Treasury Securities. In determining whether the
Holders of the required Principal amount of Securities have concurred in any
direction, waiver or consent, Securities owned by an Issuer or an Affiliate of
an Issuer shall be disregarded and deemed not to be outstanding for the purpose
of any such determination, except that for the purpose of determining whether
the Trustee shall be protected in relying on any such direction, waiver or
consent, only Securities which the Trustee knows are so owned shall be so
disregarded.
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SECTION 2.10. Temporary Securities; Global Securities. (a) Until
definitive Securities are ready for delivery, the Issuers may prepare and the
Trustee shall authenticate temporary Securities. Temporary Securities of any
series shall be substantially in the form of definitive Securities of such
series but may have variations that the Issuers consider appropriate for
temporary Securities. Without unreasonable delay, the Issuers shall prepare
and the Trustee shall authenticate definitive Securities of such series in
exchange for such temporary Securities. Until so exchanged, Holders of
Temporary Securities of any series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
(b) If the Issuers shall establish pursuant to Section 2.01 that
the Securities of a 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
shall, in accordance with Section 2.01 and pursuant to a written order of the
Issuers signed by two Officers of each of the Issuers, authenticate and deliver
one or more Global Securities in temporary or permanent form that (i) shall
represent and shall be denominated in an amount equal to the aggregate
Principal amount of the outstanding Securities of such series to be represented
by one or more Global Securities, (ii) shall be registered in the name of the
Depositary for such Global Security or Securities or the nominee of such
Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary's instruction and (iv) shall bear any customary
legend reasonably required by the Depositary and shall further bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for Securities in definitive form, this 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."
Notwithstanding any other provision of this Section 2.10 or Section
2.06, unless and until it is exchanged in whole or in part for Securities in
definitive form, a Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series
or a nominee of such successor Depositary.
None of the Issuers, the Trustee, any Paying Agent or the Registrar
has any direct obligation or responsibility to participants of the Depositary
or beneficial owners of interests in Securities. Without limiting the
generality of the foregoing, none of the Issuers, the Trustee, any Paying Agent
or the Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests in a Global Security (including the maintenance, review and
supervision of any such records), for the delivery of any notice to any owner
of a beneficial interest, for the selection of the beneficial owners to receive
payment in the event of any partial redemption of Securities, or for any
consent given or other action taken by the Depositary as owner of the
Securities.
If at any time the Depositary for the Securities of a series notifies
the Issuers that it is unwilling or unable to continue as Depositary for the
Securities of such series or if at any time the Depositary for Securities of a
series shall no longer be registered or in good standing under the Exchange Act
or other applicable statute or regulation, the Issuers shall appoint a
successor Depositary with respect to the Securities of such series. If a
successor Depositary for the Securities of such series is not appointed by the
Issuers within 90 days after the Issuers receive such notice or become aware of
such condition, the Issuers will execute, and the Trustee, upon receipt of a
written order of the Issuers signed by two Officers of each of the Issuers
instructing the Trustee to authenticate and deliver definitive Securities of
such series, will authenticate and deliver Securities of such series in
definitive form in an aggregate Principal amount equal to the Principal amount
of the Global Security or Securities representing such series in exchange for
such Global Security or Securities.
The Issuers may at any time and in their sole discretion determine
that the Securities of any series issued in the form of one or more Global
Securities shall no longer be represented by such Global Security or
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Securities. Furthermore, if there shall have occurred and be continuing an
Event of Default or a Default with respect to any series of Securities, the
Trustee may determine that the Securities of such series shall no longer be
represented by a Global Security or Securities. In any such event, the Issuers
will execute, and the Trustee, upon receipt of a written order of the Issuers
signed by two Officers of each of the Issuers instructing the Trustee to
authenticate and deliver definitive Securities of such series, will
authenticate and deliver Securities of such series in definitive form in an
aggregate Principal amount equal to the Principal amount of the Global Security
or Securities representing such series in exchange for such Global Security or
Securities.
If specified by the Issuers pursuant to Section 2.01 with respect to
Securities of a series, the Depositary for such series of Securities may
surrender a Global Security for such series of Securities in exchange, in whole
or in part, for Securities of such series in definitive form on such terms as
are acceptable to the Issuers and such Depositary. Thereupon, the Issuers
shall execute and the Trustee shall authenticate and deliver, without charge:
(i) to each person specified by the Depositary, a new
Security or Securities of the same series of any authorized
denomination as requested by such person in an aggregate Principal
amount equal to and in exchange for such person's beneficial interest
in the Global Security; and
(ii) to the Depositary, a new Global Security in a
denomination equal to the difference, if any, between the Principal
amount of the surrendered Global Security and the aggregate Principal
amount of Securities delivered to Holders thereof.
Upon the exchange of a Global Security for Securities in definitive
form, such Global Security shall be cancelled by the Trustee. Securities
issued in exchange for a Global Security pursuant to this Section shall be
registered in such names and in such authorized denominations as the Depositary
for such Global Security, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver such Securities to the persons in whose names such Securities are so
registered.
SECTION 2.11. Cancellation. The Issuers at any time may deliver
Securities of any series to the Trustee for cancellation. The Registrar and
Paying Agent shall forward to the Trustee any Securities surrendered to them
for registration of transfer, exchange or payment. The Trustee shall cancel
all Securities surrendered for registration of transfer, exchange, payment or
cancellation and shall dispose of cancelled Securities as the Issuers direct.
The Issuers may not issue new Securities of any series to replace Securities of
such series that have been paid or delivered to the Trustee for cancellation.
SECTION 2.12. Defaulted Interest. If the Issuers default in a
payment of interest on any of the Securities, they shall pay the defaulted
interest plus, to the extent permitted by law, any interest payable on the
defaulted interest, to the persons who are Holders of such Securities on a
subsequent special record date. The Issuers shall fix the record date and
payment date after making arrangements satisfactory to the Trustee for the
deposit of such amounts with the Trustee for payment and after consultation
with the Trustee regarding the selection of such dates. At least 15 days
before the record date, the Issuers shall mail to the Holders of such
Securities a notice that states the record date, payment date, and amount of
interest to be paid.
ARTICLE 3
REDEMPTION; SINKING FUND
SECTION 3.01. Notices to Trustee. The Issuers may elect to redeem
Securities of any series in accordance with the provisions of such Securities;
provided, however, that if an Event of Default shall have occurred and be
continuing, the Securities of any series may not be redeemed in whole or in
part, unless (i) the Securities of all series are redeemed in whole or (ii) the
Securities of all series are redeemed in part and the
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Principal amount to be redeemed is prorated among all Holders so that all
Holders of each series receive in redemption of their outstanding Securities
the same the Principal amount per $1,000 of Securities (provided, however, that
if the Securities of any such series are Original Issue Discount Securities,
for purposes of this clause (ii), such pro ration shall be based upon each
$1,000 that would be due and payable on the redemption date in the event of a
declaration of acceleration of the Stated Maturity thereof pursuant to Section
6.02). The election of the Issuers to redeem Securities of any series in
accordance with the provisions of such Securities shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of
the Issuers, the Issuers shall, at least 45 days before the redemption date
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee of such redemption date and in the case of any redemption of less than
all of the Securities of any series (or, where redemption provisions of any
series of Securities are not identical as to each Security within the series,
in case of any redemption at the election of the Issuers of less than all the
Securities with identical redemption provisions) the Principal amount of the
Securities of such series to be redeemed and shall deliver to the Trustee such
documentation and records as shall enable the Trustee to select the Securities
to be redeemed pursuant to Section 3.02.
SECTION 3.02. Selection of Securities to be Redeemed. If less than
all of the Securities of a series (or, where the redemption provisions of any
series of Securities are not identical as to each Security within the series,
if less than all the Securities with identical redemption provisions) are to be
redeemed, the Trustee shall, subject to Section 3.01, select the Securities to
be redeemed by such method as the Trustee shall deem fair and appropriate. The
Trustee shall make the selection not more than 45 days before the redemption
date from outstanding Securities of such series (or, if the redemption
provisions of all of the Securities of such series are not identical, from
Securities of such series with identical redemption provisions) not previously
called for redemption. The Trustee may select for redemption portions of the
Principal of Securities of any series that have denominations larger than the
minimum Principal denomination for such series. Provisions of this Indenture
that apply to Securities called for redemption also apply to portions of
Securities called for redemption.
SECTION 3.03. Notice of Redemption. At least 30 days but not more
than 60 days before a redemption date, the Trustee shall, in the name of the
Issuers and at the Issuers' expense, mail a notice of redemption to each Holder
whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) if less than all the outstanding Securities of a
series (or, in the case of series of Securities in which the
redemption provisions are not identical as to each Security within the
series, less than all of the Securities of a series with identical
redemption provisions) are to be redeemed, the identification (and, in
the case of partial redemption, the Principal amounts) of the
particular Securities to be redeemed;
(5) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(6) that interest on Securities called for redemption
ceases to accrue on and after the redemption date; and
(7) that the redemption is pursuant to the terms of a
sinking fund, if such is the case.
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SECTION 3.04. Effect of Notice of Redemption. Once notice of a
redemption is mailed, Securities called for redemption become due and payable
on the redemption date at the redemption price. Upon surrender to the Paying
Agent, such Securities shall be paid and redeemed at the redemption price,
together with interest accrued thereon to the redemption date; provided,
however, that installments of interest becoming due on or prior to the
redemption date shall be payable to the Holders of such Securities, or one or
more previous Securities evidencing all or a portion of the same debt as that
evidenced by such particular Securities, registered as such at the close of
business on the relevant record date according to their terms and the
provisions of Section 2.12.
SECTION 3.05. Deposit of Redemption Price. On or before the
redemption date, the Issuers shall deposit with the Paying Agent money
sufficient to pay the aggregate redemption price of and accrued interest on all
Securities to be redeemed on that date.
SECTION 3.06. Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Issuers shall execute and the Trustee
shall authenticate without service charge for the Holder a new Security of the
same series, having terms identical to those of the Securities surrendered,
equal in Principal amount to the unredeemed portion of the Security
surrendered. If a Global Security is so surrendered, such new Security so
issued shall be a new Global Security.
SECTION 3.07. Sinking Fund. Each sinking fund payment provided for
by the terms of Securities of any series shall be applied to the redemption of
such Securities as provided for by the terms of such Securities and this
Section 3.07.
In satisfaction of any minimum or optional sinking fund payment
required or permitted to be made pursuant to the terms of Securities of any
particular series (or, where the sinking fund provisions of each Security
within such series are not identical, then pursuant to the terms of the
Securities with identical sinking fund provisions), the Issuers may (i) deliver
to the Trustee Securities of that series (or, where the sinking fund provisions
of the Securities of such series are not identical, Securities of that series
having identical sinking fund provisions) which have not previously been called
for redemption and which the Issuers have not previously delivered to the
Trustee for cancellation or (ii) notify the Trustee of its election to credit
against the required sinking fund payment the Principal amount of any
Securities of that series (or, if applicable, any Securities of that series
with identical sinking fund provisions) which have been redeemed otherwise than
pursuant to minimum sinking fund payment requirements with respect to the
Securities of such series (or, if applicable, with respect to the Securities of
such series with identical sinking fund provisions); provided, however, that
such Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the redemption price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such minimum or optional sinking fund payment shall be
reduced accordingly.
Not less than 45 days prior to each sinking fund payment date (unless
a shorter notice shall be satisfactory to the Trustee) for any particular
series of Securities (or, where the sinking fund provisions of the Securities
within such series are not identical, for the Securities of such series having
identical sinking fund provisions), the Issuers will give written notice to the
Trustee of the amount of the next succeeding sinking fund payment (including
any optional sinking fund payment which is permitted to be made by the terms of
the Securities) for that series pursuant to the terms of that series (or, if
applicable, for such Securities pursuant to the terms of such Securities), the
portion thereof, if any, which is to be satisfied by payment of cash and the
portion thereof, if any, which is to be satisfied by crediting Securities
against the required sinking fund payment pursuant to the preceding paragraph
of this Section and will also deliver to the Trustee any Securities to be so
credited. The Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 3.02 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Issuers in the manner provided in Section 3.03. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 3.04 and 3.06.
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SECTION 3.08. Terms of Securities to Govern. Notwithstanding any
other provision of this Article 3, if any provision of any Security of any
series shall conflict with any provision of this Article, the provision of such
Security shall govern.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities. The Issuers shall pay the
Principal of and any interest on the Securities on the dates and in the manner
provided in the Securities. Principal and interest shall be considered paid on
the date due if the Paying Agent holds on that date money deposited with it by
or on behalf of the Issuers sufficient to pay all Principal and interest then
due.
The Issuers shall pay interest on overdue Principal at the rate borne
by such Securities or otherwise as provided in the Securities; they shall pay
interest on overdue installments of interest at the same rate to the extent
permitted by law.
Each payment by the Issuers to the Trustee or the Paying Agent shall
be accompanied by a written notice from the Issuers that specifies the series
to which such payment relates.
SECTION 4.02. SEC Reports. Each Issuer shall furnish to the Trustee,
within 15 days after it files them with the SEC, copies of the annual reports
and of the information, documents, and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) that such Issuer is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. The Issuers also shall comply with the
other provisions of TIA Section 314(a).
SECTION 4.03. Certificate to Trustee. The Issuers covenant and agree
to furnish to the Trustee, within 90 days after the end of each fiscal year of
the Issuers, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer of each of the
Issuers as to each of such officer's knowledge of the Issuers' compliance with
all conditions and covenants under this Indenture; provided, for purposes of
this paragraph, such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture.
SECTION 4.04. Maintenance of Office or Agency. The Issuers will
maintain in The City of New York, an office or agency of the Trustee, Registrar
and Paying Agent where Securities may be presented or surrendered for payment,
where Securities may be surrendered for registration of transfer, exchange,
purchase or redemption, and where notices and demands to or upon the Issuers in
respect of the Securities and this Indenture may be served. The Issuers shall
give prompt written notice to the Trustee of the location, and of any change in
the location, of any such office or agency (other than a change in the location
of the office of the Trustee). 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 address of the Trustee set forth in
Section 10.10.
SECTION 4.05. Further Assurances. From time to time whenever
reasonably requested by the Trustee, the Issuers will make, execute and
deliver, or cause to be made, executed or delivered, any and all such further
and other instruments and assurances as may be reasonably necessary or proper
to carry out the intention of or to facilitate the performance of the terms of
this Indenture or to secure the rights and remedies of the Holders of
Securities of any series provided for in this Indenture, including, but not
limited to, furnishing all necessary information to the Trustee in connection
with calculations and tax reporting relating to any Original Issue Discount
Securities that may be issued by the Issuers hereunder.
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ARTICLE 5
SUCCESSORS
SECTION 5.01. When Issuers May Merge, etc. Neither Issuer shall
consolidate or merge into, or sell, assign, transfer or lease all or
substantially all of its assets to, any person unless:
(1) the person is a corporation organized and existing
under the laws of the United States of America or any State thereof or
the District of Columbia;
(2) the person assumes by supplemental indenture all the
obligations of such Issuer under the Securities and this Indenture;
(3) immediately after the transaction no Default shall
exist; and
(4) an Officers' Certificate and Opinion of Counsel have
been delivered to the Trustee to the effect that the conditions set
forth in the preceding clauses (1) through (3) above have been met.
The corporation formed by or resulting from any such consolidation or
merger, or which shall have received all or substantially all of such assets,
shall succeed to and be substituted for such Issuer with the same effect as if
it had been named herein as a party hereto, and thereafter, except in the case
of a lease of all or substantially all of such assets, the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Securities and such Issuer may thereafter liquidate and
dissolve.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" with respect
to Securities of any series occurs if:
(1) there is a default in the payment of interest on any
Security of such series when the same becomes due and payable, which
Default continues for a period of 30 days;
(2) there is a default in the payment of the Principal of
any Security of such series when the same becomes due and payable at
Maturity, upon redemption or otherwise;
(3) an Issuer fails to comply with any of its other
agreements with respect to Securities of such series or this Indenture
(other than a covenant included in this Indenture solely for the
benefit of any series of Securities other than such series or a
covenant which has not been breached with respect to such series),
which Default continues for a period of 30 days after notice of such
Default is given to the Issuers by the Trustee or the Holders of at
least 25% in Principal amount of the Securities of such series;
(4) there occurs a default under any bond, indenture,
note or other evidence of indebtedness for money borrowed by Issuer or
any Material Subsidiary (including a default with respect to
Securities of any series other than such series) or under any
mortgage, indenture or instrument under which there may be issued or
by which there may be secured or evidenced any indebtedness for money
borrowed by an Issuer or any Material Subsidiary (including this
Indenture) with a principal amount
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then outstanding in excess of $10,000,000, whether such indebtedness
exists now or shall hereafter be created, which default shall result
in such indebtedness becoming or being declared due and payable prior
to the date on which it would otherwise have become due and payable,
without such indebtedness having been discharged, or such acceleration
having been rescinded or annulled;
(5) an Issuer or any Material Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(a) commences a voluntary case;
(b) consents to the entry of an order for relief
against it in an involuntary case;
(c) consents to the appointment of a Custodian
for it or for all or substantially all of its property; or
(d) makes a general assignment for the benefit of
its creditors;
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(a) is for relief against an Issuer or any
Material Subsidiary in an involuntary case;
(b) appoints a Custodian of an Issuer or any
Material Subsidiary or for all or substantially all of the
property of such Issuer or such Material Subsidiary; or
(c) orders the liquidation of an Issuer or any
Material Subsidiary, and the order or decree remains unstayed
and in effect for 90 days; or
(7) there occurs any other Event of Default with respect
to the Securities of such series specified in the terms of such
series.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
SECTION 6.02. Acceleration. If an Event of Default with respect to
the Securities of any series occurs and is continuing, the Trustee by notice to
the Issuers, or the Holders of at least 25% in Principal amount of the
Securities of that series by notice to the Issuers and the Trustee, may declare
the Principal (or, if the Securities of that series are Original Issue Discount
Securities, such portion of the Principal amount as may be specified in the
terms of that series) of and accrued interest on all the Securities of that
series to be due and payable immediately. Upon such declaration, the Principal
(or specified amount) of and accrued interest on all the Securities of that
series shall be due and payable immediately. The Holders of a majority in
Principal amount of the Securities of that series by notice to the Trustee and
the Issuers may rescind an acceleration and its consequences if the rescission
would not conflict with any judgment or decree and if all existing Events of
Default with respect to the Securities of that series have been cured or waived
except nonpayment of Principal or interest that has become due solely because
of the acceleration and the Issuers have paid or deposited with the Paying
Agent sums sufficient to pay all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel. No such rescission shall affect any
subsequent default or impair any right consequent thereto.
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SECTION 6.03. Other Remedies. If an Event of Default with respect to
the Securities of any series occurs and is continuing, the Trustee may pursue
any available remedy to collect the payment of Principal of or interest on the
Securities of that series or to enforce the performance of any provision of the
Securities of that series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Securityholder in exercising any right or
remedy upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law.
SECTION 6.04. Waiver of Existing Defaults. The Holders of a majority
in outstanding Principal amount of the Securities of any series by notice to
the Trustee may waive an existing Default with respect to that series and its
consequences, except a Default in the payment of the Principal of or interest
on any Security of that series.
SECTION 6.05. Control by Majority. The Holders of a majority in
aggregate outstanding Principal amount of the Securities of all series affected
(voting as one class) may 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 it with respect to the Securities of such series; provided,
that the Trustee may take any other action deemed proper by the Trustee that is
not inconsistent with such direction. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture, is unduly
prejudicial to the rights of another Securityholder of such series or any other
series, or would involve the Trustee in personal liability. In making such
determination, the Trustee may rely on the advice of counsel.
SECTION 6.06. Limitation on Suits. A Holder of Securities of any
series may pursue a remedy with respect to this Indenture or the Securities
only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to Securities of that series;
(2) the Holders of a majority in Principal amount of the
Securities of that series make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of indemnity; and
(5) during such 60-day period, the Holders of a majority
in aggregate outstanding Principal amount of the Securities of that
series do not give the Trustee a direction inconsistent with the
request;
provided, however, that it is understood and intended, and is expressly
covenanted by each Holder of every Security of a series with every other Holder
and the Trustee, that no Holders of such series of Securities shall have any
right in any manner whatsoever by virtue or by availing of any provision of
this Indenture to affect, disturb or prejudice the rights of the Holders of any
other series of Securities, or to obtain or seek to obtain priority over or
preference to any other such Holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities.
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SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security to
receive payment of Principal of and interest on the Security, on or after the
respective due dates expressed in the Security, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of the Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default
specified in Section 6.01(1) or (2) with respect to Securities occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Issuers, jointly and severally, for the whole
amount of Principal (or, if the Securities of that series are Original Issue
Discount Securities, such portion of the Principal amount as may be specified
in the terms of that series) and accrued interest remaining unpaid, together
with interest on overdue Principal and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest with respect
to the Securities as to which an Event of Default has occurred, and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including appeals and including, without limitation, the reasonable
compensation, expenses, disbursements of the Trustee, its agents and counsel.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceedings relative to an Issuer, its creditors or its
property and shall be entitled and empowered to collect and receive any money
or other property payable or deliverable on any such claims and to distribute
the same, and any custodian in any such judicial proceedings is authorized
hereby by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due to the Trustee under Section 7.07;
provided, however, that any such payments to be made by such custodian to the
Trustee and directly to the Holders shall be made in accordance with the
priorities set forth in Section 6.10. Nothing herein contained shall be deemed
to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, liquidation, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant
to this Article, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders of Securities in respect of which or for
the benefit of which such money has been collected, for amounts due
and unpaid on such Securities for Principal (or, if such Securities
are Original Issue Discount Securities, such portion of the Principal
amount as may be specified in the terms that series) and interest,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for Principal and interest,
respectively; and
Third: to the Issuers.
The Trustee may fix a record date and payment date for any payment to
such Securityholders.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party
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litigant. This Section does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07, or a suit by Holders of more than 10% in
Principal amount of the Securities of any series.
ARTICLE 7
TRUSTEE
SECTION 7.01. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture. However, the Trustee shall examine the
certificates and opinions required by the terms of this Indenture to
determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraph
(b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is proved
that the Trustee was negligent in ascertaining the pertinent facts;
and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
(d) Regardless of whether therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject
to paragraphs (a), (b), (c) and (e) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any
right or power unless it receives indemnity satisfactory to it against any
loss, liability or expense. No provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Issuers. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
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SECTION 7.02. Rights of Trustee.
(a) The Trustee may rely and shall be protected in acting or
refraining from acting on any document believed by it to be genuine and to have
been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on such Certificate or Opinion.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
of any series and may otherwise deal with the Issuers or an Affiliate of an
Issuer with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. However, the Trustee is subject to Sections
7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Issuers' use of the proceeds
from the Securities, and it shall not be responsible for any statement in the
Securities other than its authentication.
SECTION 7.05. Notice of Defaults. If a Default in respect of the
Securities of any series occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to the Holders of the Securities of that series
a notice of the Default within 90 days after it occurs. Except in the case of
a Default in payment of the Principal or interest on any Security, or in the
payment of any sinking fund or purchase fund installment, the Trustee may
withhold the notice if and so long as a committee of its Trust Officers in good
faith determines that withholding the notice is in the interests of the Holders
of the Securities of that series.
SECTION 7.06. Reports by Trustee to Holders. If required by TIA
Section 313(a), within 60 days after the reporting date stated in this Section
7.06, the Trustee shall mail to Securityholders of each series a brief report
dated as of such reporting date that complies with TIA Section 313(a). The
Trustee shall also comply with TIA Section 313(b). For purposes of this
Section 7.06, the reporting date shall be May 15 of each year. The first
reporting date will be the first May 15 following the issuance of the first
series of Securities hereunder.
A copy of each report at the time of its mailing to Securityholders of
each series shall be filed with the SEC and each stock exchange on which the
Securities of each series are listed. The Issuers will notify the Trustee of
the listing of Securities of any series on a stock exchange.
SECTION 7.07. Compensation and Indemnity. The Issuers, jointly and
severally, shall pay to the Trustee from time to time reasonable compensation
for its services. The Trustee's compensation shall not be limited by any law
on compensation of a trustee of an express trust. The Issuers, jointly and
severally, shall reimburse the Trustee upon request for all reasonable expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel.
The Issuers shall indemnify the Trustee against any loss, liability
or expense incurred by it arising out of or in connection with the acceptance
or administration of this Indenture. The Trustee shall notify the Issuers
promptly of any claim for which it may seek indemnity. The Issuers shall
defend the claim and the Trustee shall cooperate in the defense. The
indemnities contained in this Section shall survive the resignation or
termination
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of the Trustee or the termination of this Indenture. The Trustee may have
separate counsel and the Issuers shall pay the reasonable fees and expenses of
such counsel. The Issuers need not pay for any settlement made without their
consent.
The Issuers need not reimburse any expense or indemnify against any
loss, liability or expense incurred by the Trustee if the acts or omissions of
the Trustee, if any, relating to such loss, liability or expense, breached any
standard of care applicable to or imposed on the Trustee for such acts or
omissions.
To secure the Issuers' payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay Principal and
interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(5) or (6) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective only
upon the successor Trustee's acceptance of appointment as provided in this
Section.
The Trustee may resign at any time with respect to the Securities of
one or more series by so notifying the Issuers. The Holders of a majority in
Principal amount of the Securities of any series may remove the Trustee with
respect to such series by so notifying the Trustee and the Issuers. The
Issuers may remove the Trustee with respect to the Securities of one or more
series if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, with respect to the Securities of any one or
more series, the Issuers shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the Securities
of one or more or all of such series and that at any time there shall be only
one Trustee with respect to the Securities of any particular series) and shall
comply with the applicable requirements of Section 7.10. Within one year after
the successor Trustee takes office, the Holders of a majority in Principal
amount of the Securities of each series may appoint a successor Trustee with
respect to the Securities of their respective series to replace the successor
Trustee for the Securities of such series appointed by the Issuers.
If a successor Trustee with respect to the Securities of any series
does not take office within 60 days after the retiring Trustee with respect to
the Securities of that series resigns or is removed, the retiring Trustee, the
Issuers or the Holders of at least 10% in Principal amount of the Securities of
that series may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of that
series.
If the Trustee fails to comply with Section 7.10, with respect to the
Securities of one or more series, any Holder of Securities of such series may
petition any court of competent jurisdiction for the removal of the
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Trustee with respect to the Securities of that series and the appointment of a
successor Trustee with respect to the Securities of that series.
In the case of the appointment of a successor Trustee with respect to
all Securities, the 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 this Indenture. The successor Trustee shall mail a notice of its
succession to all Securityholders. 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 7.07.
In case of the appointment of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Issuers, the retiring
Trustee and each successor Trustee with respect to the Securities of one or
more series shall execute and deliver an indenture supplemental hereto wherein
each successor Trustee shall accept such appointment and which (i) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (ii) if the retiring Trustee is not retiring with respect to all
series of Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee, with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring, shall continue to be
vested in the retiring Trustee and (iii) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and the successor Trustee shall have all the rights, powers and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates. The successor
Trustee shall mail a notice of its succession to the Holders of all Securities
of that or those series to which the appointment of such successor Trustee
relates. The retiring Trustee shall promptly transfer all property held by it
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates, subject to the lien provided for in Section
7.07. No successor Trustee with respect to Securities of any series shall
accept appointment as provided in this Section 7.08 unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under the
provisions of Section 7.10.
SECTION 7.09. Successor Trustee by Merger, etc. If the Trustee
consolidates, merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the successor corporation
without any further act shall be the successor Trustee.
SECTION 7.10. Eligibility, Disqualification. This Indenture shall
always have a Trustee with respect to the Securities of each series which
satisfies the requirements of TIA Section 310(a)(1) and (5). The Trustee shall
always have a combined capital and surplus of at least $25,000,000 as set forth
in its most recent published annual report of condition or shall be a
wholly-owned subsidiary of a bank, a trust company or a bank holding company
having, together with its subsidiaries, a reported combined capital and surplus
of at least $25,000,000. The Trustee is subject to TIA Section 310(b),
including the optional provision permitted by the second sentence of TIA
Section 310(b)(9); it being understood that for the purposes of this Indenture,
with respect to Securities of any series, the provisions of TIA Section 310(b)
with respect to conflicting interests relating to "other securities" shall be
interpreted to include Securities of each other series and with respect to
"other indentures" shall include the provisions of this Indenture relating to
the Securities of such other series.
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SECTION 7.11. Preferential Collection of Claims Against Issuers. The
Trustee is subject to TIA Section 311(a), excluding any creditor relationship
listed in TIA Section 311(b). A Trustee who has resigned or been removed shall
be subject to TIA Section 311(a) to the extent indicated.
ARTICLE 8
DISCHARGE OF INDENTURE AND SECURITIES
SECTION 8.01. Satisfaction and Discharge of Indenture. If at any
time (a) the Issuers shall have paid or caused to be paid the Principal of and
interest on all the Securities of any series outstanding hereunder, as and when
the same shall have become due and payable, or (b) the Issuers shall have
delivered to the Trustee for cancellation all Securities of any series
theretofore authenticated (other than any Securities of such series which shall
have been destroyed, lost or stolen and which shall have been replaced as
provided in Section 2.07 or paid), and if, in any such case, the Issuers shall
also pay or cause to be paid all other sums payable hereunder by the Issuers
with respect to Securities of such series (including payment of all sums due
the Trustee pursuant to Section 7.07), then this Indenture shall cease to be of
further effect with respect to Securities of such series (except as to (i)
rights of registration of transfer and exchange, and the Issuers' right of
optional redemption, if any, (ii) substitution of apparently mutilated,
defaced, destroyed, lost or stolen Securities, (iii) rights of the Holders to
receive payments of Principal thereof and interest thereon from the trust fund
established pursuant to Section 8.02, and remaining rights of the Holders to
receive mandatory sinking fund payments, if any, from the trust fund
established pursuant to Section 8.02, (iv) the rights, obligations and
immunities of the Trustee hereunder, (v) the rights of the Securityholders of
such series as beneficiaries hereof with respect to the property so deposited
with the Trustee payable to all or any of them, (vi) all other obligations of
the Issuers in Sections 2.03, 2.04, 2.05, 2.06, 2.07, 7.07, 7.08 and 8.06 and
(vii) the Issuers' rights pursuant to Sections 7.08, 8.05 and 8.06), and the
Trustee, on demand of the Issuers accompanied by an Officers' Certificate and
an Opinion of Counsel, (each stating that all conditions precedent relating to
the satisfaction and discharge of this Indenture have been complied with) and
at the cost and expense of the Issuers, shall execute proper instruments
acknowledging such satisfaction of and discharging this Indenture with respect
to Securities of such series. The Issuers agree to reimburse the Trustee for
any costs or expenses thereafter reasonably and properly incurred and to
compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Securities of
such series.
SECTION 8.02. Defeasance. For purposes of Section 8.01, the Issuers
shall be deemed to have paid the Principal of and interest on Securities of any
series outstanding hereunder as and when the same shall have become due and
payable, if the Issuers shall have irrevocably deposited or caused to be
deposited in trust with the Trustee funds in cash and/or U.S. Government
Obligations sufficient without reinvestment thereof to provide for timely
payment of Principal of and interest on the Securities of such series to Stated
Maturity or redemption, as the case may be, not theretofore delivered to the
Trustee for cancellation; provided, however, that (i) in order to have money
available on a payment date to pay Principal or interest on the Securities of
such series, the U.S. Government Obligations shall be payable as to principal
and interest on or before such payment date in such amounts as will provide the
necessary money; and (ii) the Issuers shall obtain an Opinion of Counsel (which
may be based on a ruling from, or published by, the Internal Revenue Service)
to the effect that Holders of the Securities of that series will not recognize
income, gain or loss for federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to federal income tax on
the same amounts and in the same manner and at the same times, as would have
been the case if such deposit, defeasance and discharge had not occurred; and
provided, further, however, that notwithstanding the foregoing, with respect to
any series of Securities which shall at the time be listed for trading on The
New York Stock Exchange, there shall be no deposit of funds in cash and/or in
U.S. Government Obligations with the Trustee to pay the Principal amount, the
redemption price or any installment of interest in order to discharge the
Issuers' obligation in respect of any such payment if at such time the rules of
The New York Stock Exchange prohibit such deposit with the Trustee.
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SECTION 8.03. Satisfaction and Discharge of Securities. Securities
of a series shall be deemed to have been paid in full as between the Issuers
and the respective Holders (and future Holders) of Securities of such series
upon the satisfaction and discharge of the Indenture with respect to Securities
of such series pursuant to Section 8.01, except that in the case of such
satisfaction and discharge as a result of compliance with Section 8.02, the
Securities of such series shall be deemed to have been paid in full as between
the Issuers and the respective Holders (and future Holders) of Securities of
such series only if the deposit in trust with the Trustee by the Issuers of the
funds in cash and/or U.S. Government Obligations as provided in Section 8.02 is
not subsequently deemed a preference under the United States Bankruptcy Code as
then in effect.
SECTION 8.04. Application by Trustee of Money or U.S. Government
Obligations. Subject to Section 8.06, all money or U.S. Government
Obligations deposited with the Trustee pursuant to Section 8.02 shall be held
in trust and applied by it to the payment, either directly or through the
Paying Agent to the Holders of the particular Securities of such series for the
payment or redemption of which such money or U.S. Government Obligations shall
have been deposited with the Trustee, of all sums due and to become due thereon
for Principal and interest.
SECTION 8.05. Repayment of Money or U.S. Government Obligations by
Paying Agent. In connection with the satisfaction and discharge of this
Indenture with respect to Securities of any series, all money or U.S.
Government Obligations then held by the Paying Agent under the provisions of
this Indenture with respect to such series of Securities shall, upon demand of
the Issuers, be paid or delivered to the Trustee and thereupon the Paying Agent
shall be released from all further liability with respect to such money or U.S.
Government Obligations.
SECTION 8.06. Return of Money, Securities or U.S. Government
Obligations. The Trustee and the Paying Agent shall promptly pay to the
Issuers upon request any excess money, U.S. Government Obligations or
Securities held by them at any time. Any money or U.S. Government Obligations
deposited with or paid to the Trustee or the Paying Agent for the payment of
the Principal of, or interest on any Security of any series and not applied but
remaining unclaimed for two years after the date upon which such Principal or
interest shall become due and payable, shall, upon the request of the Issuers
and unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property laws, be repaid or delivered to the Issuers by
the Trustee for such series or by the Paying Agent, and the Holder of the
Security of such series shall, unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Issuers for any payment which such Holder may be
entitled to collect, and all liability of the Trustee or the Paying Agent with
respect to such money or U.S. Government Obligations shall thereupon cease.
ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders. The Issuers and the
Trustee may amend this Indenture or the Securities without the consent of any
Securityholder:
(1) to cure any ambiguity, defect or inconsistency or to
make such provisions with respect to matters or questions arising
under this Indenture as may be necessary or desirable and not
inconsistent with this Indenture or with any indenture supplemental
hereto or any Board Resolution establishing any series of Securities,
provided that such amendment does not adversely affect the rights of
Securityholders;
(2) to comply with Section 5.01;
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(3) to add additional covenants;
(4) to establish the form or forms or terms with respect
to Securities of any additional series as permitted by Section 2.01;
(5) to evidence and provide for the acceptance of
appointment of a successor Trustee with respect to the Securities of
one or more series and to add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 7.08; or
(6) to provide for the exchange of Global Securities for
Securities issued hereunder in definitive form and to make all
appropriate changes for such purpose.
SECTION 9.02. With Consent of Holders. The Issuers and the Trustee
may amend this Indenture in a manner affecting the Securities of any series, or
may amend the Securities of such series, with the written consent of the
Holders of at least a majority in Principal amount of the Securities of such
series. However, without the consent of each Securityholder affected, an
amendment under this Section may not:
(1) reduce the percentage in Principal amount of
Securities whose Holders must consent to an amendment;
(2) reduce the rate of or change the time for payment of
interest on any Security;
(3) reduce the Principal of (or, in the case of Original
Issue Discount Securities, the amount of such Securities that would be
due and payable upon acceleration of the Maturity thereof pursuant to
Section 6.02), change the Stated Maturity of or reduce the amount
payable on redemption of or otherwise alter the requirements with
respect to the mandatory redemption of any Security;
(4) make any Security payable in money other than that
stated in the Security; or
(5) make any change in Section 6.04 or 6.07 or this
Section 9.02.
After an amendment under this Section becomes effective, the Issuers
shall mail to Securityholders a notice briefly describing the amendment.
SECTION 9.03. Compliance with Trust Indenture Act. Every amendment
to this Indenture or the Securities shall be set forth in a supplemental
indenture that complies with the Trust Indenture Act of 1939 as then in effect.
SECTION 9.04. Effect of Consents. A consent to an amendment or
waiver by a Holder of a Security is effective upon delivery to the Trustee and
is a continuing consent by the Holder and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting
Holder's Security, even if notation of the consent is not made on any Security;
however, any such Holder or subsequent Holder may revoke the consent as to his
Security or portion of a Security if the Trustee receives the notice of
revocation before the date the amendment or waiver becomes effective. An
amendment or waiver becomes effective in accordance with its terms and
thereafter binds every Securityholder, except to the extent each Securityholder
affected must consent and such Securityholder did not do so.
SECTION 9.05. Notation on or Exchange of Securities. The Trustee may
place an appropriate notation about an amendment or waiver on any Security
thereafter authenticated. The Issuers in exchange for all Securities may issue
and the Trustee shall authenticate new Securities that reflect the amendment or
waiver.
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SECTION 9.06. Trustee Protected. The Trustee may, but shall not be
required to, sign any supplemental indenture that affects its rights, duties,
liabilities or immunities under this Indenture or otherwise.
ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act Controls. If any provision of
this Indenture limits, qualifies or conflicts with another provision that is
deemed to be included in this Indenture by the TIA, the required provision
shall control. The provisions of TIA Sections 310 through 317 that impose
duties on any person (including the provisions automatically deemed included
herein unless expressly excluded by this Indenture) are a part of and govern
this Indenture whether or not physically contained herein.
SECTION 10.02. Notices. Any notice or communication by the Issuers
or the Trustee to the other shall be in writing and shall be delivered in
person or mailed by first-class mail to the other's address stated in Section
10.11; provided, however, that any such notice shall be deemed duly given when
such notice is received by the Issuers or the Trustee, as the case may be. The
Issuers or the Trustee by notice to the other may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the Security Register. Failure to
mail a notice or communication to a Securityholder or any defect in a notice
shall not affect the sufficiency thereof with respect to any other
Securityholders.
Except as provided above, if a notice or communication is mailed in
the manner and within the time prescribed above, it shall be deemed duly given,
whether or not the addressee receives it.
If the Issuers mail a notice or communication to Securityholders, they
shall mail a copy to the Trustee and each Agent at the same time.
SECTION 10.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Issuers, the Trustee, the Registrar and anyone else affected
shall be entitled to the protection of TIA Section 312(c).
SECTION 10.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Issuers to the Trustee to take any
action under this Indenture, the Issuers shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion
of the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
SECTION 10.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that each person making such certificate
or opinion has read such covenant or condition;
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(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such person,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each
such person, such condition or covenant has been complied with.
Any Officers' Certificate may be based, insofar as it relates to legal
matters, upon an Opinion of Counsel, unless such Officers know that the opinion
with respect to the matters upon which their certificate may be based as
aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous. Any Opinion of Counsel may be based, insofar as it
relates to factual matters the information with respect to which is in the
possession of the Issuers, upon the certificate, statement or opinion of or
representations by an officer or officers of the Issuers, unless such counsel
knows that the certificate, statement or opinion or representation with respect
to the matters upon which his certificate, statement or opinion may be based as
aforesaid is erroneous, or in the exercise of reasonable care should know that
the same is erroneous.
Any Officers' Certificate, statement or Opinion of Counsel may be
based, insofar as it relates to accounting matters, upon a certificate or
opinion of or representations by an accountant (who may be an employee of the
Issuers), or firm of accountants, unless such Officer or counsel, as the case
may be, knows that the certificate or opinion or representation with respect to
the accounting matters upon which the certificate, statement or opinion may be
based as aforesaid is erroneous, or in the exercise of reasonable care should
know that the same is erroneous. Any certificate or opinion of any independent
firm of public accountants filed with the Trustee shall contain a statement
that such firm is independent.
SECTION 10.06. Rules by Trustee and Agents. The Trustee may make
reasonable rules for action by written consent or at a meeting of Holders of
Securities of any series. The fact and date of the execution of a written
consent or other writing by any such person shall be established in accordance
with the procedures specified in such reasonable rules, and the ownership of
Securities of any series shall be established by the Security Register for such
series maintained by the Registrar. The Registrar or Paying Agent may make
reasonable rules and set reasonable requirements for its functions.
SECTION 10.07. Legal Holidays. A "Legal Holiday" is a Saturday, a
Sunday or a day on which banking institutions in any place of payment are not
required to be open. If a payment date with respect to a particular series of
Securities is a Legal Holiday at a place of payment, payment may be made at
that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
SECTION 10.08. No Recourse Against Others. No person shall have any
recourse under or upon any obligation or agreement of the Issuers under this
Indenture or the Securities of any series or because of any debt evidenced by
the Securities of any series against any stockholder, officer, employee or
director, as such, of any of the Issuers. By accepting a Security of any
series, each Holder waives and releases all such liability as a part of the
consideration for the issuance thereof.
SECTION 10.09. Interest Limitation. If any usury law now or at any
time hereafter in force shall be applicable to this Indenture or the Securities
of any series or any other document or instrument related hereto or thereto, it
is the intention of the Issuers and the Trustee to conform strictly to any such
usury laws and any subsequent revisions or repeals thereof. In furtherance
thereof, the Issuers and the Trustee stipulate and agree that none of the terms
and provisions contained in this Indenture or the Securities of any series or
any other document or instrument related hereto or thereto shall ever be
construed to give rise to a contract or obligation
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to pay interest in excess of the maximum amount permitted to be contracted for,
taken, reserved, charged, collected or received under any applicable law.
SECTION 10.10. Duplicate Originals. The parties may sign any number
of copies of this Indenture. One signed copy is enough to prove this
Indenture.
SECTION 10.11. Addresses.
The Issuers' address is:
MESA Inc.
Mesa Operating Co.
2001 Ross Avenue, Suite 2600
Dallas, Texas 75201
Attention: Treasurer
The Trustee's address is:
First Fidelity Bank, National Association
123 South Broad Street
Philadelphia, PA 19109
Attention: Corporate Trust Office
SECTION 10.12. Record Date for Action by Securityholders. The
Issuers (or, if a deposit has been made pursuant to Section 8.02 or if an Event
of Default has occurred, the Trustee) may set a record date for purposes of
determining the identity of Holders entitled to vote or consent to any action
by vote or consent authorized or permitted under this Indenture, which record
date shall be no later than ten days nor more than 30 days prior to the first
solicitation of such vote or consent or the date of the most recent list of
Holders furnished to the Trustee pursuant to Section 2.05 hereof prior to such
solicitation. If a record date is fixed, those persons who were Holders of
Securities at such record date (or their duly designated proxies), and only
those persons, shall be entitled to take such action by vote or consent or to
revoke any vote or consent previously given, whether or not such persons
continue to be Holders after such record date.
SECTION 10.13. Governing Law. The laws of the State of New York
shall govern the construction and interpretation of this Indenture and the
Securities, without regard to principles of conflicts of laws. The Issuers
irrevocably submit to the non-exclusive jurisdiction of any United States
federal or New York state court sitting in The City of New York in any action
or proceeding arising out of or relating to this Indenture or the Securities,
and the Issuers irrevocably agree that all claims in respect of such action or
proceeding may be heard and determined in any such court.
SECTION 10.14. Payments for Consent. None of the Issuers shall,
directly or indirectly, pay or cause to be paid, or cause any of their
Affiliates to pay or cause to be paid, any consideration, whether by way of
interest, fee or otherwise, to any Holder for or as an inducement to any
consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Securities, unless such consideration is offered to be paid to
all Holders whose consent, waiver or agreement to amend is required for the
Issuers to effect such consent, waiver or amendment.
SECTION 10.15. Effect of Headings and Table of Contents. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
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SECTION 10.16. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture, loan or debt
agreement of any of the Issuers or their respective Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 10.17. Severability. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, and a Holder shall have no claim therefor against
any party hereto.
SECTION 10.18. Successors. All agreements of the Issuers in this
Indenture and the Securities shall bind their successors. All agreements of
the Trustee in this Indenture shall bind its successor.
SECTION 10.19. Qualification of Indenture. The Issuers shall qualify
this Indenture under the TIA and shall pay all costs and expenses (including
attorneys' fees for the Issuers and the Trustee) incurred in connection
therewith, including, without limitation, costs and expenses of qualification
of the Indenture and the Securities and printing this Indenture and the
Securities. The Trustee shall be entitled to receive from the Issuers any such
Officers' Certificates, Opinions of Counsel or other documentation as it may
reasonably request in connection with any such qualification of this Indenture
under the TIA.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first above written.
MESA INC.
By:_____________________________________
Name:___________________________________
Title:__________________________________
MESA OPERATING CO.
By:_____________________________________
Name:___________________________________
Title:__________________________________
FIRST FIDELITY BANK, NATIONAL ASSOCIATION
By:_____________________________________
Name:___________________________________
Title:__________________________________
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