EXHIBIT 4.28
PIONEER NATURAL RESOURCES COMPANY
AND
[ ],
AS TRUSTEE
------------------
INDENTURE
DATED AS OF [ ]
------------------
SENIOR DEBT INDENTURE
TABLE OF CONTENTS
<Table>
ARTICLE I
Definitions
Section 1.01 Certain Terms Defined..................................................................1
Section 1.02 Incorporation by Reference of Trust Indenture Act.....................................15
Section 1.03 Rules of Construction.................................................................15
ARTICLE II
Debt Securities
Section 2.01 Forms Generally.......................................................................16
Section 2.02 Form of Trustee's Certificate of Authentication.......................................16
Section 2.03 Principal Amount; Issuable in Series..................................................17
Section 2.04 Execution of Debt Securities..........................................................20
Section 2.05 Authentication and Delivery of Debt Securities........................................20
Section 2.06 Denomination of Debt Securities.......................................................22
Section 2.07 Registration of Transfer and Exchange.................................................22
Section 2.08 Temporary Debt Securities.............................................................24
Section 2.09 Mutilated, Destroyed, Lost or Stolen Debt Securities..................................25
Section 2.10 Cancellation of Surrendered Debt Securities...........................................26
Section 2.11 Provisions of the Indenture and Debt Securities for the Sole Benefit
of the Parties and the Holders........................................................26
Section 2.12 Payment of Interest; Interest Rights Preserved........................................26
Section 2.13 Securities Denominated in Foreign Currencies..........................................28
Section 2.14 Wire Transfers........................................................................28
Section 2.15 Securities Issuable in the Form of a Global Security..................................28
Section 2.16 Medium Term Securities................................................................31
Section 2.17 Defaulted Interest....................................................................31
Section 2.18 Judgments.............................................................................32
ARTICLE III
Redemption of Debt Securities
Section 3.01 Applicability of Article..............................................................33
Section 3.02 Tax Redemption; Special Tax Redemption................................................33
Section 3.03 Notice of Redemption; Selection of Debt Securities....................................35
Section 3.04 Payment of Debt Securities Called for Redemption......................................37
Section 3.05 Mandatory and Optional Sinking Funds..................................................38
Section 3.06 Redemption of Debt Securities for Sinking Fund........................................38
ARTICLE IV
Covenants of the Company
Section 4.01 Payment of Principal of, and Premium, If Any, and Interest on, Debt Securities........40
</Table>
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<Table>
Section 4.02 Maintenance of Offices or Agencies for Registration of Transfer, Exchange
and Payment of Debt Securities........................................................40
Section 4.03 Appointment to Fill a Vacancy in the Office of Trustee................................41
Section 4.04 Duties of Paying Agents, etc..........................................................41
Section 4.05 Statement by Officers as to Default...................................................42
Section 4.06 Payment of Additional Interest........................................................42
Section 4.07 Limitation on Liens...................................................................44
Section 4.08 Limitation on Sales and Leasebacks....................................................45
Section 4.09 Waiver of Certain Covenants...........................................................45
Section 4.10 Existence.............................................................................45
Section 4.11 Further Instruments and Acts..........................................................45
ARTICLE V
Holders' Lists and Reports
By the Company and the Trustee
Section 5.01 Company to Furnish Trustee Information as to Names and Addresses
of Holders; Preservation of Information...............................................46
Section 5.02 Communications to Holders.............................................................46
Section 5.03 Reports by Company....................................................................46
Section 5.04 Reports by Trustee....................................................................47
Section 5.05 Record Dates for Action by Holders....................................................47
ARTICLE VI
Remedies of the Trustee and Holders in Event of Default
Section 6.01 Events of Default.....................................................................48
Section 6.02 Collection of Indebtedness by Trustee, etc............................................50
Section 6.03 Application of Moneys Collected by Trustee............................................51
Section 6.04 Limitation on Suits by Holders........................................................52
Section 6.05 Remedies Cumulative; Delay or Omission in Exercise of Rights Not a
Waiver of Default.....................................................................53
Section 6.06 Rights of Holders of Majority in Principal Amount of Debt Securities
to Direct Trustee and to Waive Default................................................53
Section 6.07 Trustee to Give Notice of Defaults Known to It, but May Withhold
Such Notice in Certain Circumstances..................................................54
Section 6.08 Requirement of an Undertaking To Pay Costs in Certain Suits under
the Indenture or Against the Trustee..................................................54
ARTICLE VII
Concerning the Trustee
Section 7.01 Certain Duties and Responsibilities...................................................55
Section 7.02 Certain Rights of Trustee.............................................................56
Section 7.03 Trustee Not Liable for Recitals in Indenture or in Debt Securities....................57
Section 7.04 Trustee, Paying Agent or Registrar May Own Debt Securities............................57
Section 7.05 Moneys Received by Trustee to Be Held in Trust........................................57
</Table>
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<Table>
Section 7.06 Compensation and Reimbursement........................................................58
Section 7.07 Right of Trustee to Rely on an Officers' Certificate Where No Other Evidence
Specifically Prescribed...............................................................58
Section 7.08 Separate Trustee; Replacement of Trustee..............................................58
Section 7.09 Successor Trustee by Merger...........................................................60
Section 7.10 Eligibility; Disqualification.........................................................60
Section 7.11 Preferential Collection of Claims Against Company.....................................61
Section 7.12 Compliance with Tax Laws..............................................................61
ARTICLE VIII
Concerning the Holders
Section 8.01 Evidence of Action by Holders.........................................................61
Section 8.02 Proof of Execution of Instruments and of Holding of Debt Securities...................61
Section 8.03 Who May Be Deemed Owner of Debt Securities............................................62
Section 8.04 Instruments Executed by Holders Bind Future Holders...................................62
ARTICLE IX
Supplemental Indentures
Section 9.01 Purposes for Which Supplemental Indenture May Be Entered into
Without Consent of Holders............................................................63
Section 9.02 Modification of Indenture with Consent of Holders of Debt Securities..................65
Section 9.03 Effect of Supplemental Indentures.....................................................66
Section 9.04 Debt Securities May Bear Notation of Changes by Supplemental Indentures...............66
Section 9.05 Payment for Consent...................................................................67
ARTICLE X
Consolidation, Merger, Sale or Conveyance
Section 10.01 Consolidations and Mergers of the Company.............................................67
Section 10.02 Rights and Duties of Successor Corporation............................................67
ARTICLE XI
Satisfaction and Discharge of Indenture; Defeasance;
Unclaimed Moneys
Section 11.01 Applicability of Article..............................................................68
Section 11.02 Satisfaction and Discharge of Indenture; Defeasance...................................68
Section 11.03 Conditions of Defeasance..............................................................69
Section 11.04 Application of Trust Money............................................................70
Section 11.05 Repayment to Company..................................................................70
Section 11.06 Indemnity for U.S. Government Obligations.............................................71
Section 11.07 Reinstatement.........................................................................71
</Table>
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<Table>
ARTICLE XII
Miscellaneous Provisions
Section 12.01 Successors and Assigns of Company Bound by Indenture..................................71
Section 12.02 Acts of Board, Committee or Officer of Successor Company Valid........................71
Section 12.03 Required Notices or Demands...........................................................71
Section 12.04 Indenture and Debt Securities to Be Construed in Accordance with the Laws
of the State of New York..............................................................72
Section 12.05 Officers' Certificate and Opinion of Counsel to Be Furnished upon Application or
Demand by the Company.................................................................72
Section 12.06 Payments Due on Legal Holidays........................................................73
Section 12.07 Provisions Required by Trust Indenture Act to Control.................................73
Section 12.08 Computation of Interest on Debt Securities............................................73
Section 12.09 Rules by Trustee, Paying Agent and Registrar..........................................73
Section 12.10 No Recourse Against Others............................................................73
Section 12.11 Severability..........................................................................73
Section 12.12 Effect of Headings....................................................................73
Section 12.13 Indenture May Be Executed in Counterparts.............................................74
</Table>
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PIONEER NATURAL RESOURCES COMPANY
Debt Securities
CROSS REFERENCE SHEET*
This Cross Reference Sheet shows the location in the Indenture of the
provisions inserted pursuant to Sections 310-318(a), inclusive, of the Trust
Indenture Act of 1939.
<Table>
<Caption>
Indenture
TIA Section Section
----------- ---------
310(a)(1)................................................................................. 7.10
(a)(2)............................................................................... 7.10
(a)(3)............................................................................... 7.10
(a)(4)............................................................................... 7.10
(a)(5)............................................................................... 7.10
(b).................................................................................. 7.10
(c).................................................................................. N.A.**
311(a).................................................................................... 7.11
(b).................................................................................. 7.11
(c).................................................................................. N.A.
312(a).................................................................................... 5.01
(b).................................................................................. 5.02
(c).................................................................................. 5.02
313(a).................................................................................... 5.04
(b)(1)............................................................................... 5.04
(b)(2)............................................................................... 5.04
(c).................................................................................. 12.03
(d).................................................................................. 5.04
314(a)(1)................................................................................. 5.03(a)
(a)(2)............................................................................... 5.03(b)
(a)(3)............................................................................... 5.03(a) & (b)
& 12.03
(a)(4)............................................................................... 4.05
(b).................................................................................. N.A.
(c)(1)............................................................................... 12.05
(c)(2)............................................................................... 12.05
(c)(3)............................................................................... N.A.
(d).................................................................................. N.A.
</Table>
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* The Cross Reference Sheet is not part of the Indenture.
**N.A. means "Not Applicable."
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<Table>
<Caption>
Indenture
TIA Section Section
----------- ---------
(e).................................................................................. 12.05
(f).................................................................................. 4.06
315(a).................................................................................... 7.01(a)
(b).................................................................................. 6.07 & 12.03
(c).................................................................................. 7.01
(d).................................................................................. 7.01
(e).................................................................................. 6.08
316(a) (last sentence).................................................................... 1.01 ("Outstanding")
(a)(1)(A)............................................................................ 6.06
(a)(1)(B)............................................................................ 6.06
(a)(2)............................................................................... 9.01(d)
(b).................................................................................. 6.04
(c).................................................................................. 5.05
317(a) (1)................................................................................ 6.02
(a)(2)............................................................................... 6.02
(b).................................................................................. 4.04
318(a).................................................................................... 12.07
</Table>
ii
INDENTURE dated as of [ ], between PIONEER NATURAL
RESOURCES COMPANY, a corporation duly organized and existing under the laws of
the State of Delaware (hereinafter sometimes called the "Company"), and
[ ] (hereinafter sometimes called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes, bonds or other evidences of indebtedness to be issued in one or more
series unlimited as to principal amount (herein called the "Debt Securities"),
as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Debt
Securities are authenticated, issued and delivered, and in consideration of the
premises, and of the purchase and acceptance of the Debt Securities by the
holders thereof, the Company and the Trustee covenant and agree with each other,
for the benefit of the respective Holders from time to time of the Debt
Securities or any series thereof as follows:
ARTICLE I
Definitions
Section 1.01 Certain Terms Defined. The terms defined in this Section
1.01 except as herein otherwise expressly provided or unless the context
otherwise requires) for all purposes of this Indenture and of any Indenture
supplemental hereto shall have the respective meanings specified in this Section
1.01. All other terms used in this Indenture which are defined in the Trust
Indenture Act or which are by reference therein defined in the Securities Act
(except as herein otherwise expressly provided or unless the context otherwise
requires) shall have the meanings assigned to such terms in the Trust Indenture
Act and in the Securities Act as in force as of the date of original execution
of this Indenture.
"Adjusted Consolidated Net Tangible Assets" means without duplication,
as of the date of determination, the remainder of:
(a) the sum of (i) discounted future net revenues from proved
oil and gas reserves of the Company and its Subsidiaries calculated in
accordance with SEC guidelines before any provincial, territorial, state,
federal or foreign income taxes, as estimated by the Company in a reserve report
prepared as of the end of the Company's most recently completed fiscal year for
which audited consolidated financial statements are available, as increased by,
as of the date of determination, the estimated discounted future net revenues
from (A) estimated proved oil and gas reserves acquired since such year end,
which reserves were not reflected in such year end reserve report, and (B)
estimated oil and gas reserves attributable to upward revisions of estimates of
proved oil and gas reserves since such year end due to exploration, development
or exploitation activities, in each case calculated in accordance with SEC
1
guidelines (utilizing the prices utilized in such year end reserve report), and
decreased by, as of the date of determination, the estimated discounted future
net revenues from (C) estimated proved oil and gas reserves produced or disposed
of since such year end, and (D) estimated oil and gas reserves attributable to
downward revisions of estimates of proved oil and gas reserves since such year
end due to changes in geological conditions or other factors which would, in
accordance with standard industry practice, cause such revisions, in each case
calculated on a pre-tax basis and substantially in accordance with SEC
guidelines (utilizing the prices utilized in such year end reserve report), in
each case as estimated by the Company's petroleum engineers or any independent
petroleum engineers engaged by the Company for that purpose; (ii) the
capitalized costs that are attributable to oil and gas properties of the Company
and its Subsidiaries to which no proved oil and gas reserves are attributable,
based on the Company's books and records as of a date no earlier than the date
of the Company's latest available annual or quarterly consolidated financial
statements; (iii) the Net Working Capital on a date no earlier than the date of
the Company's latest annual or quarterly consolidated financial statements; and
(iv) the greater of (A) the net book value of other tangible assets of the
Company and its Subsidiaries, as of a date no earlier than the date of the
Company's latest annual or quarterly consolidated financial statements, and (B)
the appraised value, as estimated by independent appraisers, of other tangible
assets of the Company and its Subsidiaries, as of a date no earlier than the
date of the Company's latest audited consolidated financial statements; minus
(b) the sum of (i) Minority Interests; (ii) any net gas
balancing liabilities of the Company and its Subsidiaries reflected in the
Company's latest audited consolidated financial statements; (iii) to the extent
included in (a)(i) above, the discounted future net revenues, calculated in
accordance with SEC guidelines (utilizing the prices utilized in the Company's
year end reserve report), attributable to reserves which are required to be
delivered to third parties to fully satisfy the obligations of the Company and
its Subsidiaries with respect to Volumetric Production Payments (determined, if
applicable, using the schedules specified with respect thereto); and (iv) the
discounted future net revenues, calculated in accordance with SEC guidelines,
attributable to reserves subject to Dollar-Denominated Production Payments
which, based on the estimates of production and price assumptions included in
determining the discounted future net revenues specified in (a)(i) above, would
be necessary to fully satisfy the payment obligations of the Company and its
Subsidiaries with respect to Dollar-Denominated Production Payments (determined,
if applicable, using the schedules specified with respect thereto).
If the Company changes its method of accounting from the successful
efforts method to the full cost or a similar method of accounting, "Adjusted
Consolidated Net Tangible Assets" will continue to be calculated as if the
Company were still using the successful efforts method of accounting.
"Affected Security" has the meaning specified in Section 3.02(b).
"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,
2
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Indebtedness" in respect of a Sale and Leaseback
Transaction means, as of the time of determination, (a) if the obligation in
respect of such Sale and Leaseback Transaction is a Capitalized Lease
Obligation, the amount equal to the capitalized amount of such obligation
determined in accordance with United States generally accepted accounting
principles and included in the consolidated financial statements of the lessee
or (b) if the obligation in respect of such Sale and Leaseback Transaction is
not a Capitalized Lease Obligation, the amount equal to the total Net Amount of
Rent required to be paid by the lessee under such lease during the remaining
term thereof (including any period for which the lease has been extended),
discounted from the respective due dates thereof to such determination date at
the rate per annum borne by the applicable series of Debt Securities compounded
semi-annually.
"Authorized Newspaper" means a newspaper in an official language of the
country of publication customarily published at least once a day, and
customarily published for at least five days in each calendar week, and of
general circulation in such city or cities specified pursuant to Section 2.03
with respect to the Debt Securities of any series. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any business day in such city.
"Bearer Holder" means, with respect to any Bearer Security or Coupon,
the bearer thereof.
"Bearer Security" means any Debt Security (with or without Coupons),
title to which passes by delivery only, but does not include any Coupons.
"Board of Directors" means either the Board of Directors of the Company
or any duly authorized committee or subcommittee of such Board, except as the
context may otherwise require.
"business day" means, when used with respect to any Place of Payment
specified pursuant to Section 2.03, any day that is not a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies in
such Place of Payment are authorized or obligated by law to close, except as
otherwise specified pursuant to Section 2.03.
"Capital Stock" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests (including partnership interests) in (however designated) equity of
such Person, including any Preferred Stock, but excluding any debt securities
convertible into such equity.
"Capitalized Lease Obligation" means an obligation that is required to
be classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with United States generally accepted accounting
principles.
3
"Commodity Price Protection Agreement" means, in respect of any Person,
any forward contract, commodity swap agreement, commodity option agreement or
other similar agreement or arrangement designed to protect such Person against
fluctuations in commodity prices.
"Company" means Pioneer Natural Resources Company, a Delaware
corporation, and, subject to the provisions of Article X, shall also include its
successors and assigns.
"Company Order" means a written order of the Company, signed by its
Chairman of the Board, Vice Chairman, President or any Vice President and by its
Treasurer, Secretary, any Assistant Treasurer or any Assistant Secretary.
"Consolidated Net Worth" of any Person means the stockholders' equity
of such Person and its Subsidiaries, as determined on a consolidated basis in
accordance with United States generally accepted accounting principles, less (to
the extent included in stockholders' equity) amounts attributable to Redeemable
Stock of such Person or its Subsidiaries.
"corporate trust office of the Trustee" or other similar term means the
office of the Trustee in [ ] at which the corporate trust business of the
Trustee shall, at any particular time, be principally administered in the United
States, which is on the date hereof at [ ], Attention: [ ], except that with
respect to the presentation of Debt Securities for payment or for registration
of transfer and exchange, such term shall also mean the office of the Trustee or
the Trustee's agent in the Borough of Manhattan, the city and state of New York,
which on the date hereof is at [ ], and the office of the Trustee in the city of
Dallas, Texas, which on the date hereof is at [ ], in each case at which at any
particular time its corporate agency business shall be conducted.
"Coupon" means any interest coupon appertaining to any Bearer Security.
"Coupon Security" means any Bearer Security authenticated and delivered
with one or more Coupons appertaining thereto.
"Currency" means Dollars or Foreign Currency.
"Currency Exchange Protection Agreement" means, in respect of any
Person, any foreign exchange contract, currency swap agreement, currency option
or other similar agreement or arrangement designed to protect such Person
against fluctuations in currency exchange rates.
"Debt Security" or "Debt Securities" has the meaning stated in the
first recital of this Indenture and more particularly means any debt security or
debt securities, as the case may be, of any series authenticated and delivered
under this Indenture.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary" means, unless otherwise specified by the Company pursuant
to either Section 2.03 or Section 2.15, with respect to Debt Securities of any
series issuable or issued in whole or in part in the form of one or more Global
Securities, The Depository Trust Company,
4
New York, New York, or any successor thereto registered as a clearing agency
under the Exchange Act or other applicable statute or regulations.
"Dollar" or "$" means such currency of the United States as at the time
of payment is legal tender for the payment of public and private debts.
"Dollar-Denominated Production Payments" means production payment
obligations recorded as liabilities in accordance with United States generally
accepted accounting principles, together with all undertakings and obligations
in connection therewith.
"Dollar Equivalent" means, with respect to any monetary amount in a
Foreign Currency, at any time for the determination thereof, the amount of
Dollars obtained by converting such Foreign Currency involved in such
computation into Dollars at the spot rate for the purchase of Dollars with the
applicable Foreign Currency as quoted by [__________] (unless another comparable
financial institution is designated by the Company) in New York, New York, at
approximately 11:00 a.m. (New York time) on the date two business days prior to
such determination.
"European Communities" means the European Economic Community, the
European Coal and Steel Community and the European Atomic Energy Community.
"European Currency Units" has the meaning assigned to it from time to
time by the Council of the European Communities.
"Event of Default" has the meaning specified in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934.
"Floating Rate Security" means a Debt Security that provides for the
payment of interest at a variable rate determined periodically by reference to
an interest rate index specified pursuant to Section 2.03.
"Foreign Currency" means a currency issued by the government of any
country other than the United States or a composite currency the value of which
is determined by reference to the values of the currencies of any group of
countries.
"Funded Debt" means all Indebtedness for money borrowed having a
maturity of more than 12 months from the date as of which the amount thereof is
to be determined.
"Global Security" means with respect to any series of Debt Securities
issued hereunder, a Debt Security which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction, all in accordance with this Indenture and any
Indentures supplemental hereto, or resolution of the Board of Directors and set
forth in an Officers' Certificate, which shall be registered in the name of the
Depositary or its nominee and which shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of, all the Outstanding Debt
Securities of such series or any portion thereof, in either case having the same
terms, including, without limitation, the same issue date, date or dates on
which principal is due and interest rate or method of determining interest.
5
"Government Contract Lien" means any Lien required by any contract,
statute, regulation or order in order to permit the Company or any of its
Subsidiaries to perform any contract or subcontract made by it with or at the
request of the United States or any state thereof or any department, agency or
instrumentality of either or to secure partial, progress, advance or other
payments by the Company or any of its Subsidiaries to the United States or any
state thereof or any department, agency or instrumentality of either pursuant to
the provisions of any contract, statute, regulation or order.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and any obligation, direct or indirect, contingent or
otherwise, of such Person (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation of such other
Person (whether arising by virtue of partnership arrangements, or by agreement
to keep-well, to purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement conditions or otherwise) or (b) entered into
for purposes of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided, however, that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Protection Agreement, Currency Exchange
Protection Agreement, Commodity Price Protection Agreement or other similar
agreement.
"Holder," "Holder of Debt Securities" or other similar terms means,
with respect to a Registered Security, the Registered Holder and, with respect
to a Bearer Security or a Coupon, the Bearer Holder.
"Indebtedness" means, with respect to any Person, at any date, any of
the following, without duplication:
(a) any liability, contingent or otherwise, of such Person:
(i) for borrowed money (whether or not the recourse
of the lender is to the whole of the assets of such Person or only to a portion
thereof),
(ii) evidenced by a note, bond, debenture or similar
instrument, or
(iii) for the payment of money relating to a
Capitalized Lease Obligation or other obligation (whether issued or assumed)
relating to the deferred purchase price of property;
(b) all conditional sale obligations and all obligations under
any title retention agreement (even if the rights and remedies of the seller
under such agreement in the event of default are limited to repossession or sale
of such property);
6
(c) all obligations for the reimbursement of any obligor on
any letter of credit, banker's acceptance or similar credit transaction other
than as entered into in the ordinary course of business;
(d) the amount of all obligations of such Person with respect
to the redemption, repayment or other repurchase of any Redeemable Stock of such
Person or, with respect to any Preferred Stock of any Subsidiary of such Person,
the principal amount of such Preferred Stock to be determined in accordance with
the Indenture (but excluding, in each case, any accrued dividends);
(e) all indebtedness of others of the type referred to in
clauses (a) through (d) hereof secured by (or for which the holder of such
indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien on any asset or property (including, without limitation, leasehold
interests and any other tangible or intangible property) of such Person, whether
or not such indebtedness is assumed by such Person or is not otherwise such
Person's legal liability; provided that if the obligations so secured have not
been assumed in full by such Person or are otherwise not such Person's legal
liability in full, the amount of such indebtedness for the purposes of this
definition shall be limited to the lesser of the amount of such indebtedness
secured by such Lien or the fair market value of the assets or the property
securing such lien; and
(f) all indebtedness of others of the type referred to in
clauses (a) through (e) hereof (including all interest and dividends on any
Indebtedness or Preferred Stock of any other Person the payment of which is)
guaranteed, directly or indirectly, by such Person or that is otherwise its
legal liability or which such Person has agreed to purchase or repurchase or in
respect of which such Person has agreed contingently to supply or advance funds.
Notwithstanding the preceding, Indebtedness shall not include (a)
accounts payable arising in the ordinary course of business, (b) any obligations
in respect of prepayments for gas or oil production or gas or oil imbalances,
(c) estimated asset retirement obligations required to be recorded as
liabilities under United States generally accepted accounting principles, and
(d) Production Payments and Reserve Sales.
"Indenture" means this instrument as originally executed, or, if
amended or supplemented as herein provided, as so amended or supplemented, and
shall include the form and terms of particular series of Debt Securities as
contemplated hereunder, whether or not a supplemental indenture is entered into
with respect thereto.
"Interest" includes, when used with respect to a Bearer Security, any
additional interest payable on such Bearer Security pursuant to Section 3.02 or
Section 4.06.
"Interest Rate Protection Agreement" means, in respect of any Person,
any interest rate swap agreement, interest rate option agreement, interest rate
cap agreement, interest rate collar agreement, interest rate floor agreement or
other similar agreement or arrangement designed to protect such Person against
fluctuations in interest rates.
"Lien" means any mortgage, pledge, security interest, encumbrance,
lien, charge or adverse claim affecting title or resulting in an encumbrance
against real or personal property or a security interest of any kind (including,
without limitation, any conditional sale or other title
7
retention agreement or lease in the nature thereof or any filing or agreement to
file a financing statement as debtor under the Uniform Commercial Code or any
similar statute other than to reflect ownership by a third party of property
leased to the Company or any of its Subsidiaries under a lease that is not in
the nature of a conditional sale or title retention agreement).
"Minority Interest" means the percentage interest represented by any
shares of stock of any class of a Subsidiary that are not owned by the Company
or a Subsidiary.
"Net Amount of Rent" as to any lease for any period means the aggregate
amount of rent payable by the lessee with respect to such period after excluding
amounts required to be paid on account of maintenance and repairs, insurance,
taxes, assessments, water rates and similar charges. In the case of any lease
that is terminable by the lessee upon the payment of a penalty, such net amount
shall also include the amount of such penalty, but no rent shall be considered
as payable under such lease subsequent to the first date upon which it may be so
terminated.
"Net Working Capital" means (a) all current assets of the Company and
its Subsidiaries, less (b) all current liabilities of the Company and its
Subsidiaries, except current liabilities included in Indebtedness, in each case
as set forth in consolidated financial statements of the Company prepared in
accordance with United States generally accepted accounting principles.
"Non-Recourse Indebtedness" means, with respect to any Person,
Indebtedness or that portion of Indebtedness of such Person incurred in
connection with the acquisition by such Person of any Property and as to which:
(a) the holders of such Indebtedness agree in writing that
they will look solely to the Property so acquired and securing such Indebtedness
for payment on or in respect of such Indebtedness; and
(b) no default with respect to such Indebtedness would permit
(after notice or passage of time or both), according to the terms of any other
Indebtedness of such Person, any holder of such other Indebtedness to declare a
default under such other Indebtedness or cause the payment of such other
Indebtedness to be accelerated or payable prior to its stated maturity.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the Vice Chairman, the President or any Vice President and by the
Treasurer, the Secretary or any Assistant Treasurer or Assistant Secretary of
the Company. Each such certificate shall include the statements provided for in
Section 12.05, if applicable.
"Oil and Gas Business" means (a) the acquisition, exploration,
exploitation, development, production, operation and disposition of interests in
oil, gas and other hydrocarbon properties, (b) the gathering, marketing,
treating, processing, storage, refining, selling and transporting of any
production from such interests or properties and products produced in
association therewith, (c) any power generation and electrical transmission
business and (d) any business or activity relating to, arising from, or
necessary, appropriate or incidental to the activities described in the
foregoing clauses (a) through (c) of this definition.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel for the Company (who may be an employee of the Company), or outside
counsel for the Company who
8
shall be reasonably satisfactory to the Trustee. Each such opinion shall include
the statements provided for in Section 12.05, if applicable.
"Original Issue Discount Debt Security" means any Debt Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof pursuant to
Section 6.01.
"Outstanding", when used with respect to any series of Debt Securities,
means, as of the date of determination, all Debt Securities of that series
theretofore authenticated and delivered under this Indenture, except:
(a) Debt Securities of that series theretofore canceled by the
Trustee or delivered to the Trustee for cancellation;
(b) Debt Securities of that series for whose payment or
redemption money in the necessary amount has been theretofore deposited with the
Trustee or any paying agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own paying
agent) for the Holders of such Debt Securities; provided, that, if such Debt
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has
been made; and
(c) Debt Securities of that series which have been paid
pursuant to Section 2.09 or in exchange for or in lieu of which other Debt
Securities have been authenticated and delivered pursuant to this Indenture,
other than any such Debt Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Debt Securities are
held by a bona fide purchaser in whose hands such Debt Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Debt Securities of any series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Debt Securities owned by the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Debt Securities which
the Trustee knows to be so owned shall be so disregarded. Debt Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Debt Securities and that the pledgee is not the
Company or any other obligor upon the Debt Securities or an Affiliate of the
Company or of such other obligor. In determining whether the Holders of the
requisite principal amount of Outstanding Debt Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
the principal amount of an Original Issue Discount Debt Security that shall be
deemed to be Outstanding for such purposes shall be the amount of the principal
thereof that would be due and payable as of the date of such determination upon
a declaration of acceleration of the maturity thereof pursuant to Section 6.01.
In determining whether the Holders of the requisite principal amount of the
Outstanding Debt Securities of any series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
9
amount of a Debt Security denominated in one or more foreign currencies or
currency units that shall be deemed to be Outstanding for such purposes shall be
the Dollar Equivalent, determined in the manner provided as contemplated by
Section 2.03 on the date of original issuance of such Debt Security, of the
principal amount (or, in the case of any Original Issue Discount Security, the
Dollar Equivalent on the date of original issuance of such Security of the
amount determined as provided in the preceding sentence above) of such Debt
Security.
"Permitted Liens" means, with respect to any Person:
(a) pledges or deposits by such Person under worker's
compensation laws, unemployment insurance laws or similar legislation, or good
faith deposits in connection with bids, tenders, contracts (other than for the
payment of Indebtedness) or leases to which such Person is a party, or deposits
to secure public or statutory obligations of such Person or deposits of cash or
United States government bonds to secure performance, surety or appeal bonds to
which such Person is a party or which are otherwise required of such Person, or
deposits as security for contested taxes or import duties or for the payment of
rent or other obligations of like nature, in each case incurred in the ordinary
course of business;
(b) Liens imposed by law, such as carriers', warehousemen's,
laborers', materialmen's, landlords', vendors', workmen's, operators',
producers' (including those arising pursuant to Article 9.343 of the Texas
Uniform Commercial Code or other similar statutory provisions of other states
with respect to production purchased from others) and mechanics' Liens, in each
case for sums not yet due or being contested in good faith by appropriate
proceedings;
(c) Liens for property taxes, assessments and other
governmental charges or levies not yet delinquent or subject to penalties for
non-payment or which are being contested in good faith by appropriate
proceedings;
(d) minor survey exceptions, minor encumbrances, easements or
reservations of or with respect to, or rights of others for or with respect to,
licenses, rights-of-way, sewers, electric and other utility lines and usages,
telegraph and telephone lines, pipelines, surface use, operation of equipment,
permits, servitudes and other similar matters, or zoning or other restrictions
as to the use of real property or Liens incidental to the conduct of the
business of such Person or to the ownership of its properties that were not
incurred in connection with Indebtedness and which do not in the aggregate
materially adversely affect the value of said properties or materially impair
their use in the operation of the business of such Person;
(e) Liens existing on or provided for under the terms of
agreements existing on the issue date of the Debt Securities;
(f) (i) Liens on property or assets of, or any shares of stock
of or secured debt of, any Person at the time the Company or any of its
Subsidiaries acquired the property or the Person owning such property, including
any acquisition by means of a merger or consolidation with or into the Company
or any of its Subsidiaries, or (ii) Liens existing on (A) Principal Property at
the time such Property became Principal Property or (B) any shares of Capital
Stock or Indebtedness of any Subsidiary that owns or leases any Principal
Property, which Liens were
10
existing at the time such Subsidiary acquired its ownership interest or
leasehold interest in such Principal Property or at the time such Property of
such Subsidiary became a Principal Property;
(g) Liens securing a Hedging Obligation so long as such
Hedging Obligation is of the type customarily entered into in connection with,
and is entered into for the purpose of, limiting risk;
(h) Liens upon specific properties of the Company or any of
its Subsidiaries securing Indebtedness incurred in the ordinary course of
business to provide all or part of the funds for the exploration, drilling or
development of those properties;
(i) Purchase Money Liens and Liens securing Non-Recourse
Indebtedness of such Person; provided, however, that the related purchase money
Indebtedness and Non-Recourse Indebtedness, as applicable, shall not be secured
by any Property or assets of such Person other than the Property acquired or
developed by such Person with the proceeds of such purchase money Indebtedness
or Non-Recourse Indebtedness, as applicable;
(j) Liens securing only Indebtedness of a wholly owned
Subsidiary of the Company to the Company or to one or more wholly owned
Subsidiaries of the Company;
(k) Liens on any property to secure bonds for the
construction, installation or financing of pollution control or abatement
facilities or other forms of industrial revenue bond financing or Indebtedness
issued or Guaranteed by the United States, any state or any department, agency
or instrumentality thereof;
(l) Government Contract Liens;
(m) Liens in respect of Production Payments and Reserve Sales;
(n) Liens resulting from the deposit of funds or evidences of
Indebtedness in trust for the purpose of defeasing Indebtedness of the Company
or any of its Subsidiaries;
(o) legal or equitable encumbrances deemed to exist by reason
of negative pledges or the existence of any litigation or other legal proceeding
and any related lis pendens filing (excluding any attachment prior to judgment,
judgment lien or attachment lien in aid of execution on a judgment);
(p) rights of a common owner of any interest in property held
by such Person;
(q) farmout, carried working interest, joint operating,
unitization, royalty, overriding royalty, sales and similar agreements relating
to the exploration or development of, or production from, oil and gas properties
entered into the ordinary course of business;
(r) any defects, irregularities or deficiencies in title to
easements, rights-of-way or other properties that do not in the aggregate
materially adversely affect the value of such properties or materially impair
their use in the operation of the business of such Person; and
11
(s) Liens to secure any refinancing, refunding, extension,
renewal or replacement (or successive refinancings, refundings, extensions,
renewals or replacements), as a whole, or in part, of any Indebtedness secured
by any Lien referred to in the foregoing clauses (e) through (m); provided,
however, that (i) such new Lien shall be limited to all or part of the same
property that secured the original Lien (plus improvements on such property) and
(ii) the Indebtedness secured by such Lien at such time is not increased to any
amount greater than the sum of (A) the outstanding principal amount or, if
greater, committed amount of the Indebtedness described under clauses (e)
through (m) at the time the original Lien became a Permitted Lien under this
Indenture and (B) an amount necessary to pay any fees and expenses, including
premiums, related to such refinancing, refunding, extension, renewal or
replacement.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" means, when used with respect to the Debt Securities
of any series, the place or places where the principal of, and premium, if any,
and interest on, the Debt Securities of that series are payable as specified
pursuant to Section 2.03.
"Preferred Stock", as applied to the Capital Stock of any Person, means
Capital Stock of any class or classes (however designated) which is preferred as
to the payment of dividends or distributions, or as to the distribution of
assets upon any voluntary or involuntary liquidation or dissolution of such
Person, over shares of Capital Stock of any other class of such Person.
"principal London office of the Trustee" means the office of the
Trustee in the city of London, England, which on the date hereof is at [ ], at
which at any particular time its corporate agency business, including
presentation of Debt Securities for payment or for registration of transfer and
exchange, shall be conducted.
"Principal Property" means any property owned or leased by the Company
or any Subsidiary, the gross book value of which exceeds 10% of Consolidated Net
Worth.
"Production Payments and Reserve Sales" means the grant or transfer by
the Company or a Subsidiary of the Company to any Person of a royalty,
overriding royalty, net profits interest, production payment (whether volumetric
or dollar denominated), partnership or other interest in oil and gas properties,
reserves or the right to receive all or a portion of the production or the
proceeds from the sale of production attributable to such properties, including
any such grants or transfers pursuant to incentive compensation programs on
terms that are reasonably customary in the Oil and Gas Business for geologists,
geophysicists and other providers of technical services to the Company or a
Subsidiary of the Company.
"Property" means, with respect to any Person, any interest of such
Person in any kind of property or asset, whether real, personal or mixed, or
tangible or intangible, including Capital Stock and other securities issued by
any other Person (but excluding Capital Stock or other securities issued by such
first mentioned Person).
"Purchase Money Lien" means a Lien on property securing Indebtedness
incurred by the Company or any of its Subsidiaries to provide funds for all or
any portion of the cost of (i)
12
acquiring such property incurred before, at the time of, or within six months
after the acquisition of such property or (ii) constructing, developing,
altering, expanding, improving or repairing such property or assets used in
connection with such property.
"Redeemable Stock" of any Person means any equity security of such
Person that by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or otherwise (including on the
happening of an event), is or could become required to be redeemed for cash or
other property or is or could become redeemable for cash or other property at
the option of the holder thereof, in whole or in part, on or prior to the first
anniversary of the stated maturity of the applicable series of Notes; or is or
could become exchangeable at the option of the holder thereof for Indebtedness
at any time in whole or in part, on or prior to the first anniversary of the
stated maturity of the applicable series of Debt Securities; provided, however,
that Redeemable Stock shall not include any security that may be exchanged or
converted at the option of the holder for Capital Stock of the Company having no
preference as to dividends or liquidation over any other Capital Stock of the
Company.
"Registered Holder" means the Person in whose name a Registered
Security is registered in the Debt Security Register (as defined in Section
2.07(a)).
"Registered Security" means any Debt Security registered as to
principal and interest in the Debt Security Register (as defined in Section
2.07(a)).
"Registrar" has the meaning set forth in Section 2.07(a).
"responsible officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers, and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Sale and Leaseback Transaction" means any arrangement with any Person
pursuant to which the Company or any Subsidiary leases any Principal Property
that has been or is to be sold or transferred by the Company or the Subsidiary
to such Person, other than (i) temporary leases for a term, including renewals
at the option of the lessee, of not more than five years, (ii) leases between
the Company and a Subsidiary or between Subsidiaries, (iii) leases of Principal
Property executed by the time of, or within 12 months after the latest of, the
acquisition, the completion of construction or improvement, or the commencement
of commercial operation of the Principal Property, and (iv) arrangements
pursuant to any provision of law with an effect similar to the former Section
168(f)(8) of the Internal Revenue Code of 1954.
"SEC" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution and delivery of this
13
Indenture such body is not existing and performing the duties now assigned to it
under the Trust Indenture Act, then the body performing such duties on such
date.
"Securities Act" means the Securities Act of 1933.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has
occurred).
"Subsidiary" of any Person means (i) any Person of which more than 50%
of the total voting power of shares of Capital Stock entitled (without regard to
the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by any Person or one or more of the Subsidiaries of that Person or a
combination thereof, and (ii) any partnership, joint venture or other Person in
which such Person or one or more of the Subsidiaries of that Person or a
combination thereof has the power to control by contract or otherwise the board
of directors or equivalent governing body or otherwise controls such entity.
"Trade Payables" means, with respect to any Person, any accounts
payable or any Indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person arising in the ordinary course of business
of such Person in connection with the acquisition of goods or services.
"Trust Indenture Act" (except as herein otherwise expressly provided)
means the Trust Indenture Act of 1939 as in force at the date of this Indenture
as originally executed and, to the extent required by law, as amended.
"Trustee" initially means [ ] and any other Person or Persons appointed
as such from time to time pursuant to Section 7.08, and, subject to the
provisions of Article VII, includes its or their successors and assigns. If at
any time there is more than one such Person, "Trustee" as used with respect to
the Debt Securities of any series shall mean the Trustee with respect to the
Debt Securities of that series.
"United States" means the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States federal
income tax purposes, is a foreign corporation, a nonresident alien individual, a
nonresident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more members of which is, for United States federal income
tax purposes, a foreign corporation, a nonresident alien individual or a
nonresident alien fiduciary of a foreign estate or trust.
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States for the payment of which its full faith and
credit is pledged or (y) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United
14
States, the payment of which is unconditionally Guaranteed as a full faith and
credit obligation by the United States, which, in either case, are not callable
or redeemable at the option of the issuer thereof.
"Volumetric Production Payments" means production payment obligations
recorded as deferred revenue in accordance with United States generally accepted
accounting principles, together with all undertakings and obligations in
connection therewith.
"Yield to Maturity" means the yield to maturity, calculated at the time
of issuance of a series of Debt Securities, or, if applicable, at the most
recent redetermination of interest on such series and calculated in accordance
with accepted financial practice.
Section 1.02 Incorporation by Reference of Trust Indenture Act. This
Indenture is subject to the mandatory provisions of the Trust Indenture Act
which are incorporated by reference in and made a part of this Indenture. The
following Trust Indenture Act terms have the following meanings:
"indenture securities" means the Debt Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company and
any other obligor on the Debt Securities.
All other Trust Indenture Act terms used in this Indenture that are
defined by the Trust Indenture Act, reference to another statute or defined by
rules of the Securities and Exchange Commission have the meanings assigned to
them by such definitions.
Section 1.03 Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with United States generally accepted accounting
principles;
(c) "or" is not exclusive;
(d) "including" means including without limitation;
(e) words in the singular include the plural and words in the
plural include the singular;
(f) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof that would
be shown on a balance sheet of the
15
issuer dated such date prepared in accordance with United States generally
accepted accounting principles; and
(g) the principal amount of any Preferred Stock shall be the
greater of (i) the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect to such
Preferred Stock.
ARTICLE II
Debt Securities
Section 2.01 Forms Generally. The Debt Securities and Coupons, if any,
of each series shall be in substantially the form established without the
approval of any Holder by or pursuant to a resolution of the Board of Directors
or in one or more Indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon as
the Company may deem appropriate and as are not inconsistent with the provisions
of this Indenture or as may be required or appropriate to comply with any law or
with any rules made pursuant thereto or with any rules of any securities
exchange on which such series of Debt Securities may be listed, or to conform to
general usage, or as may, consistently herewith, be determined by the officers
executing such Debt Securities and Coupons, as evidenced by their execution of
the Debt Securities and Coupons.
The definitive Debt Securities of each series and Coupons, if any,
shall be printed, lithographed or engraved on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Debt Securities and Coupons, as evidenced by their execution of such Debt
Securities and Coupons.
Each Bearer Security and each Coupon shall bear a legend substantially
to the following effect: "Any United States Person who holds this obligation
will be subject to limitations under the United States income tax laws,
including the limitations provided in Sections 165(j) and 1287(a) of the
Internal Revenue Code."
Section 2.02 Form of Trustee's Certificate of Authentication. The
Trustee's Certificate of Authentication on all Debt Securities authenticated by
the Trustee shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
[_____________________________________],
As Trustee
By:
-----------------------------------
Authorized Signatory
16
Section 2.03 Principal Amount; Issuable in Series. The aggregate
principal amount of Debt Securities which may be executed, authenticated,
delivered and outstanding under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall be
established, without the approval of any Holders, pursuant to authority granted
by the Board of Directors and set forth in an Officers' Certificate, or
established in one or more indentures supplemental hereto, prior to the issuance
of Debt Securities of any series any or all of the following:
(a) the title of the Debt Securities of the series (which
shall distinguish the Debt Securities of the series from all other Debt
Securities);
(b) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under this
Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to this Article II);
(c) the date or dates on which the principal and premium, if
any, of the Debt Securities of the series are payable;
(d) the rate or rates (which may be fixed or variable) at
which the Debt Securities of the series shall bear interest, if any, or the
method of determining such rate or rates (including any procedures to vary or
reset such rate or rates), the date or dates from which such interest shall
accrue, the interest payment dates on which such interest shall be payable, or
the method by which such date will be determined, in the case of Registered
Securities, the record dates for the determination of Holders thereof to whom
such interest is payable, and the basis upon which interest will be calculated
if other than that of 360-day year of twelve thirty-day months;
(e) the place or places, if any, in addition to or instead of
the corporate trust office of the Trustee (in the case of Registered Securities)
or the principal London office of the Trustee (in the case of Bearer
Securities), where the principal of, and premium, if any, and interest, if any,
on Debt Securities of the series shall be payable, and the identity of the
Person to whom interest on the Debt Securities of the series, if any, shall be
payable if it is to be to a Person other than the Holder;
(f) the price or prices at which, the period or periods within
which and the terms and conditions upon which Debt Securities of the series may
be redeemed, in whole or in part, at the option of the Company;
(g) whether Debt Securities of the series are to be issued as
Registered Securities or Bearer Securities or both, and, if Bearer Securities
are issued, whether Coupons will be attached thereto, whether Bearer Securities
of the series may be exchanged for Registered Securities of the series and the
circumstances under which and the places at which any such exchanges, if
permitted, may be made;
17
(h) if any Debt Securities of the series are to be issued as
Bearer Securities or as one or more Global Securities representing individual
Bearer Securities of the series, (i) whether the provisions of Section 3.02 and
Section 4.06 or other provisions for payment of additional interest or tax
redemptions shall apply and, if other provisions shall apply, such other
provisions; (ii) whether interest in respect of any portion of a temporary
Bearer Security of the series (delivered pursuant to Section 2.08) payable in
respect of any interest payment date prior to the exchange of such temporary
Bearer Security for definitive Bearer Securities of the series shall be paid to
any clearing organization with respect to the portion of such temporary Bearer
Security held for its account and, in such event, the terms and conditions
(including any certification requirements) upon which any such interest payment
received by a clearing organization will be credited to the Persons entitled to
interest payable on such interest payment date; and (iii) the terms upon which a
temporary Bearer Security may be exchanged for one or more definitive Bearer
Securities of the series;
(i) the obligation, if any, of the Company to redeem, purchase
or repay Debt Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof, and the price or prices at
which and the period or periods within which and the terms and conditions upon
which Debt Securities of the series shall be redeemed, purchased or repaid, in
whole or in part, pursuant to such obligations;
(j) the terms, if any, upon which the Debt Securities of the
series may be convertible into or exchanged for other Debt Securities or
warrants for Indebtedness or other securities of any kind of the Company or any
other obligor and the terms and conditions upon which such conversion or
exchange shall be effected, including the initial conversion or exchange price
or rate, the conversion or exchange period and any other provision in addition
to or in lieu of those described herein;
(k) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Debt Securities of the series shall
be issuable;
(l) if the amount of principal of or any premium or interest
on Debt Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts will be determined;
(m) if the principal amount payable at the Stated Maturity of
Debt Securities of the series will not be determinable as of any one or more
dates prior to such Stated Maturity, the amount which will be deemed to be such
principal amount as of any such date for any purpose, including the principal
amount thereof which will be due and payable upon any maturity other than the
Stated Maturity or which will be deemed to be Outstanding as of any such date
(or, in any such case, the manner in which such deemed principal amount is to be
determined); and the manner of determining the equivalent thereof in the
currency of the United States for purposes of the definition of Dollar
Equivalent;
(n) any changes or additions to Article XI, including the
addition of additional covenants that may be subject to the covenant defeasance
option pursuant to Section 11.02(b)(ii);
18
(o) if other than such coin or Currency of the United States
as at the time of payment is legal tender for payment of public and private
debts, the coin or Currency or Currencies or units of two or more Currencies in
which payment of the principal of, and premium, if any, and interest on, Debt
Securities of the series shall be payable;
(p) if other than the principal amount thereof, the portion of
the principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section
6.01 or provable in bankruptcy pursuant to Section 6.02;
(q) any addition to or change in the Events of Default with
respect to the Debt Securities of the series and any change in the right of the
Trustee or the Holders to declare the principal of, and premium and interest on,
such Debt Securities due and payable;
(r) if the Debt Securities of the series shall be issued in
whole or in part in the form of a Global Security or Securities, the terms and
conditions, if any, upon which such Global Security or Securities may be
exchanged in whole or in part for other individual Debt Securities in definitive
registered form; and the Depositary for such Global Security or Securities and
the form of any legend or legends to be borne by any such Global Security or
Securities in addition to or in lieu of the legend referred to in Section 2.15;
(s) any trustees, authenticating or paying agents, transfer
agents or registrars;
(t) the applicability of, and any addition to or change in the
covenants and definitions currently set forth in this Indenture or in the terms
currently set forth in Article X;
(u) the terms, if any, of any Guarantee of the payment of
principal of, and premium, if any, and interest on, Debt Securities of the
series and any corresponding changes to the provisions of this Indenture as
currently in effect;
(v) with regard to Debt Securities of the series that do not
bear interest, the dates for certain required reports to the Trustee;
(w) the terms of any repurchase or remarketing rights of third
parties; and
(x) any other terms of the Debt Securities of the series
(which terms shall not be prohibited by the provisions of this Indenture).
All Debt Securities of any one series and the Coupons, if any,
appertaining thereto shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to such resolution of the
Board of Directors and as set forth in such Officers' Certificate or in any such
Indenture supplemental hereto. All Debt Securities of any one series need not be
issued at the same time and, unless otherwise so provided, a series may be
reopened for issuances of additional Debt Securities of such series with the
same terms or to establish additional terms of such series of Debt Securities.
The Company may also issue Debt Securities of a series with the same terms as
previously issued Debt Securities of another series.
19
Section 2.04 Execution of Debt Securities. The Debt Securities and the
Coupons, if any, shall be signed on behalf of the Company by its Chairman of the
Board, its Vice Chairman, its President or a Vice President and by its
Secretary, an Assistant Secretary, a Treasurer or an Assistant Treasurer. Such
signatures upon the Debt Securities and Coupons may be the manual or facsimile
signatures of the present or any future such authorized officers and may be
imprinted or otherwise reproduced on the Debt Securities and Coupons. The seal
of the Company, if any, may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Debt Securities and
Coupons.
Only such Debt Securities and Coupons as shall bear thereon a
certificate of authentication substantially in the form hereinbefore recited,
signed manually by the Trustee, shall be entitled to the benefits of this
Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Debt Security or Coupon executed by the Company shall be
conclusive evidence that the Debt Security or Coupon so authenticated has been
duly authenticated and delivered hereunder.
In case any officer of the Company who shall have signed any of the
Debt Securities or Coupons shall cease to be such officer before the Debt
Securities or Coupons so signed shall have been authenticated and delivered by
the Trustee, or disposed of by the Company, such Debt Securities or Coupons
nevertheless may be authenticated and delivered or disposed of as though the
Person who signed such Debt Securities or Coupons had not ceased to be such
officer of the Company; and any Debt Security or Coupon may be signed on behalf
of the Company by such Persons as, at the actual date of the execution of such
Debt Security or Coupon, shall be the proper officers of the Company, although
at the date of such Debt Security or Coupon or of the execution of this
Indenture any such Person was not such officer.
Section 2.05 Authentication and Delivery of Debt Securities. At any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Debt Securities, with appropriate Coupons, if any, of
any series executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of such Debt
Securities, and the Trustee shall thereupon authenticate and deliver said Debt
Securities and Coupons in accordance with the Company Order. In authenticating
such Debt Securities and Coupons, and accepting the additional responsibilities
under this Indenture in relation to such Debt Securities and Coupons, the
Trustee shall be entitled to receive, and (subject to Section 7.01) shall be
fully protected in relying upon:
(a) a copy of any resolution or resolutions of the Board of
Directors, certified by the Secretary or Assistant Secretary of the Company,
authorizing the terms of issuance and the form of any series of Debt Securities
and Coupons or authorizing the approval of any such terms of issuance and form
by an officer of the Company;
(b) an executed supplemental indenture, if any;
(c) an Officers' Certificate; and
(d) an Opinion of Counsel prepared in accordance with Section
12.05 which shall also state:
20
(i) that the form of such Debt Securities and Coupons has been
established by or pursuant to a resolution of the Board of Directors or by a
supplemental indenture as permitted by Section 2.01 in conformity with the
provisions of this Indenture;
(ii) that the terms of such Debt Securities and Coupons have
been established by or pursuant to a resolution of the Board of Directors or by
a supplemental indenture as permitted by Section 2.03 in conformity with the
provisions of this Indenture;
(iii) that such Debt Securities and Coupons, when
authenticated and delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company, enforceable in
accordance with their terms except as (A) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and (B) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of general
applicability;
(iv) that the Company has the corporate power to issue such
Debt Securities and Coupons and has duly taken all necessary corporate action
with respect to such issuance;
(v) that the issuance of such Debt Securities and Coupons will
not contravene the certificate of incorporation or bylaws of the Company or
result in any material violation of any of the terms or provisions of any law or
regulation or of any indenture, mortgage or other agreement known to such
counsel by which the Company is bound;
(vi) that authentication and delivery of such Debt Securities
and Coupons and the execution and delivery of any supplemental indenture will
not violate the terms of this Indenture; and
(vii) such other matters as the Trustee may reasonably
request.
Such Opinion of Counsel need express no opinion as to whether a court
in the United States would render a money judgment in a currency other than that
of the United States.
The Trustee shall have the right to decline to authenticate and deliver
any Debt Securities or Coupons under this Section 2.05 if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken or if
the Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors, trustees or vice presidents shall
determine that such action would expose the Trustee to personal liability to
existing Holders.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Debt Securities and Coupons, if any, of any
series. Unless limited by the terms of such appointment, an authenticating agent
may authenticate Debt Securities whenever the Trustee may do so. Each reference
in this Indenture to authentication by the Trustee includes authentication by
such agent. An authenticating agent has the same rights as any Registrar, paying
agent or agent for service of notices and demands.
21
Unless otherwise provided in the form of Debt Security for any series,
each Debt Security shall be dated the date of its authentication.
Section 2.06 Denomination of Debt Securities. Unless otherwise provided
in the form of Debt Security for any series, the Debt Securities of each series
shall be issuable only as Registered Securities in such denominations as shall
be specified or contemplated by Section 2.03. In the absence of any such
specification with respect to the Debt Securities of any series, the Debt
Securities of such series shall be issuable in denominations of $1,000 and any
integral multiple thereof.
Section 2.07 Registration of Transfer and Exchange. (a) The Company
shall keep or cause to be kept a register for each series of Registered
Securities issued hereunder (hereinafter collectively referred to as the "Debt
Security Register"), in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and the transfer of Registered Securities as provided in this Article
II. At all reasonable times the Debt Security Register shall be open for
inspection by the Trustee. Subject to Section 2.15, upon due presentment for
registration of transfer of any Registered Security at any office or agency to
be maintained by the Company in accordance with the provisions of Section 4.02,
the Company shall execute and, upon receipt of a Company Order requesting
authentication and delivery, the Trustee shall authenticate and deliver in the
name of the transferee or transferees a new Registered Security or Registered
Securities of authorized denominations for a like aggregate principal amount.
Except as otherwise specified pursuant to Section 2.03, in no event may
Registered Securities, including Registered Securities received in exchange for
Bearer Securities, be exchanged for Bearer Securities.
Unless and until otherwise determined by the Company by resolution of
the Board of Directors, the register of the Company for the purpose of
registration, exchange or registration of transfer of the Registered Securities
shall be kept at the corporate trust office of the Trustee and, for this
purpose, the Trustee shall be designated "Registrar".
Registered Securities of any series (other than a Global Security,
except as set forth below) may be exchanged for a like aggregate principal
amount of Registered Securities of the same series of other authorized
denominations. Subject to Section 2.15, Registered Securities to be exchanged
shall be surrendered at the office or agency to be maintained by the Company as
provided in Section 4.02, and the Company shall execute and, upon receipt of a
Company Order requesting the authentication and delivery, the Trustee shall
authenticate and deliver in exchange therefor the Registered Security or
Registered Securities which the Holder making the exchange shall be entitled to
receive.
At the option of the Holder of Bearer Securities of any series, except
as otherwise specified as contemplated by Section 2.03(h) or Section 2.03(r)
with respect to a Global Security representing Bearer Securities, Bearer
Securities of such series may be exchanged for Registered Securities (if the
Debt Securities of such series are issuable as Registered Securities) or Bearer
Securities of the same series, of any authorized denomination or denominations,
of like tenor and aggregate principal amount, upon surrender of the Bearer
Securities to be exchanged at the office or agency of the Company maintained for
such purpose, with all unmatured Coupons and all matured Coupons in Default
thereto appertaining; provided, however, that delivery of a Bearer
22
Security shall occur only outside the United States. If such Holder is unable to
produce any such unmatured Coupon or Coupons or matured Coupon or Coupons in
Default, such exchange may be effected if such Holder's Bearer Securities are
accompanied by payment in funds acceptable to the Company and the Trustee in an
amount equal to the face amount of such missing Coupon or Coupons, or the
surrender of such missing Coupon or Coupons may be waived by the Company and the
Trustee if there be furnished to them such security or indemnity as they may
require to save each of them and any paying agent harmless. If thereafter such
Holder shall surrender to any paying agent any such missing Coupon in respect of
which such a payment shall have been made, such Holder shall be entitled to
receive the amount of such payment; provided, however, that, except as otherwise
provided in Section 2.12, interest represented by Coupons shall be payable only
upon presentation and surrender of those Coupons at an office or agency located
outside the United States.
Whenever any Debt Securities are so surrendered for exchange, the
Company shall execute, and, upon receipt of a Company Order requesting the
authentication and delivery, the Trustee shall authenticate and deliver, the
Debt Securities that the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange.
(b) All Registered Securities presented or surrendered for
registration of transfer, exchange or payment shall (if so required by the
Company, the Trustee or the Registrar) be duly endorsed or be accompanied by a
written instrument or instruments of transfer, in form satisfactory to the
Company, the Trustee and the Registrar, duly executed by the Registered Holder
or his attorney duly authorized in writing.
All Debt Securities issued in exchange for or upon transfer of Debt
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture as the Debt
Securities surrendered for such exchange or transfer.
No service charge shall be made for any exchange or registration of
transfer of Debt Securities (except as provided by Section 2.09), but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto, other than those
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to the Holders.
The Company shall not be required (a) to issue, register the transfer
of or exchange any Debt Securities for a period of 15 days next preceding the
day of any mailing of notice of redemption of Debt Securities of such series or
(b) to register the transfer of or exchange any Debt Securities selected, called
or being called for redemption; provided, however, that, if specified pursuant
to Section 2.03, any Bearer Securities of any series that are exchangeable for
Registered Securities and that are called for redemption pursuant to Section
3.02 may, to the extent permitted by applicable law, be exchanged for one or
more Registered Securities of such series during the period preceding the
redemption date therefor.
23
Prior to the due presentation for registration of transfer of any Debt
Security, the Company, the Trustee, any paying agent or any Registrar may deem
and treat the Person in whose name a Debt Security is registered as the absolute
owner of such Debt Security for the purpose of receiving payment of principal
of, and premium, if any, and interest on, such Debt Security and for all other
purposes whatsoever, whether or not such Debt Security is overdue, and none of
the Company, the Trustee, any paying agent or Registrar shall be affected by
notice to the contrary.
Title to any Bearer Security and any Coupons appertaining thereto shall
pass by delivery. The Company, the Trustee, the paying agent and any agent of
the Company or the Trustee may treat the bearer of any Bearer Security and the
bearer of any Coupon as the absolute owner of such Bearer Security or Coupon for
the purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Bearer Security or Coupon be overdue,
and none of the Company, the Trustee, the paying agent or any agent of the
Company or the Trustee shall be affected by notice to the contrary.
Section 2.08 Temporary Debt Securities. Pending the preparation of
definitive Debt Securities of any series, the Company may execute and, upon
receipt of a Company Order requesting the authentication and delivery, the
Trustee shall authenticate and deliver temporary Debt Securities (printed,
lithographed, photocopied, typewritten or otherwise produced) of any authorized
denomination, and substantially in the form of the definitive Debt Securities in
lieu of which they are issued, in registered form or, if authorized, in bearer
form with one or more Coupons or without Coupons, and with such omissions,
insertions and variations as may be appropriate for temporary Debt Securities
and Coupons, all as may be determined by the Company with the concurrence of the
Trustee. Temporary Debt Securities and Coupons may contain such reference to any
provisions of this Indenture as may be appropriate. Every temporary Debt
Security shall be executed by the Company and be authenticated by the Trustee
upon the same conditions and in substantially the same manner, and with like
effect, as the definitive Debt Securities.
If temporary Debt Securities of any series are issued, the Company will
cause definitive Debt Securities of such series to be prepared without
unreasonable delay. Except as otherwise specified as contemplated by Section
2.03(h)(iii) with respect to a series of Debt Securities issuable as Bearer
Securities or as one or more Global Securities representing individual Bearer
Securities of the series, (a) after the preparation of definitive Debt
Securities of such series, the temporary Debt Securities of such series shall be
exchangeable for definitive Debt Securities of such series upon surrender of the
temporary Debt Securities of such series at the office or agency of the Company
in a Place of Payment for such series, without charge to the Holder thereof,
except as provided in Section 2.07 in connection with a transfer and except that
a Person receiving definitive Bearer Securities shall bear the cost of
insurance, postage, transportation and the like unless otherwise specified
pursuant to Section 2.03, and (b) upon surrender for cancellation of any one or
more temporary Debt Securities of any series (accompanied by any unmatured
Coupons appertaining thereto), the Company shall execute and, upon receipt of a
Company Order requesting the authentication and delivery, the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Debt Securities of the same series of authorized denominations and of
like tenor; provided, however, that no definitive Bearer Security shall be
delivered in exchange for a temporary Registered Security; and
24
provided, further, however, that delivery of a Global Security representing
individual Bearer Securities or a Bearer Security shall occur only outside the
United States. Until so exchanged, temporary Debt Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Debt Securities of such series, except as otherwise specified as
contemplated by Section 2.03(h)(ii) with respect to the payment of interest on
Global Securities in temporary form.
Unless otherwise specified pursuant to Section 2.03, the Company will
execute and deliver each definitive Global Security representing individual
Bearer Securities and each Bearer Security to the Trustee at its principal
office in London or such other place outside the United States specified
pursuant to Section 2.03.
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Debt Securities represented
thereby pursuant to Section 2.07 or this Section 2.08, the temporary Global
Security shall be endorsed by the Trustee to reflect the reduction of the
principal amount evidenced thereby, whereupon the principal amount of such
temporary Global Security shall be reduced for all purposes by the amount to
exchanged and endorsed.
Section 2.09 Mutilated, Destroyed, Lost or Stolen Debt Securities. If
(i) any mutilated Debt Security or any mutilated Coupon with the Coupon Security
to which it appertains (and all unmatured Coupons attached thereto) is
surrendered to the Trustee at its corporate trust office (in the case of
Registered Securities) or at its principal London office (in the case of Bearer
Securities) or (ii) the Company and the Trustee receive evidence to their
satisfaction of the destruction, loss or theft of any Debt Security or any
Coupon, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them and any paying agent
harmless, and neither the Company nor the Trustee receives notice that such Debt
Security or Coupon has been acquired by a bona fide purchaser, then the Company
shall execute and, upon receipt of a Company Order requesting the authentication
and delivery, the Trustee shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Debt Security or in
exchange for the Coupon Security to which such mutilated, destroyed, lost or
stolen Coupon appertained, a new Debt Security of the same series of like tenor,
form, terms and principal amount, bearing a number not contemporaneously
Outstanding, and, in the case of a Coupon Security, with such Coupons attached
thereto that neither gain nor loss in interest shall result from such exchange
or substitution. Upon the issuance of any substituted Debt Security, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses connected therewith. In case any Debt Security or Coupon which has
matured or is about to mature or which has been called for redemption shall
become mutilated or be destroyed, lost or stolen, the Company may, instead of
issuing a substituted Debt Security or Coupon, pay or authorize the payment of
the same (without surrender thereof except in the case of a mutilated Debt
Security or Coupon) if the applicant for such payment shall furnish the Company
and the Trustee with such security or indemnity as either may require to save it
harmless from all risk, however remote, and, in case of destruction, loss or
theft, evidence to the satisfaction of the Company and the Trustee of the
destruction, loss or theft of such Debt Security or Coupon and of the ownership
thereof; provided, however, that payment of principal of, and premium, if any,
and interest on, Bearer Securities or Coupons shall, except as otherwise
provided in Section 2.12, be payable only at an office or agency located outside
the United States.
25
Every substituted Debt Security of any series, with its Coupons, if
any, issued pursuant to the provisions of this Section 2.09 by virtue of the
fact that any Debt Security or Coupon is destroyed, lost or stolen shall
constitute an original additional contractual obligation of the Company, whether
or not the destroyed, lost or stolen Debt Security or Coupon shall be found at
any time, and shall be entitled to all the benefits of this Indenture equally
and proportionately with any and all other Debt Securities of that series and
Coupons, if any, duly issued hereunder. All Debt Securities and Coupons, if any,
shall be held and owned upon the express condition that the foregoing provisions
are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Debt Securities or Coupons, and shall preclude any and
all other rights or remedies, notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
Section 2.10 Cancellation of Surrendered Debt Securities. All Debt
Securities surrendered for payment, redemption, registration of transfer or
exchange and all Coupons surrendered for payment or exchange shall, if
surrendered to the Company or any paying agent or a Registrar, be delivered to
the Trustee for cancellation by it, or if surrendered to the Trustee, shall be
canceled by it, and no Debt Securities or Coupons shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. All canceled Debt Securities and Coupons held by the Trustee shall be
destroyed (subject to the record retention requirements of the Exchange Act) and
certification of their destruction (or retention) delivered to the Company,
unless otherwise directed. On request of the Company, the Trustee shall deliver
to the Company canceled Debt Securities and Coupons held by the Trustee. If the
Company shall acquire any of the Debt Securities or Coupons, however, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented thereby unless and until the same are delivered or
surrendered to the Trustee for cancellation. The Company may not issue new Debt
Securities or Coupons to replace Debt Securities or Coupons it has redeemed,
paid or delivered to the Trustee for cancellation.
Section 2.11 Provisions of the Indenture and Debt Securities for the
Sole Benefit of the Parties and the Holders. Nothing in this Indenture or in the
Debt Securities or Coupons, expressed or implied, shall give or be construed to
give to any Person, other than the parties hereto, the Holders or any Registrar
or paying agent, any legal or equitable right, remedy or claim under or in
respect of this Indenture, or under any covenant, condition or provision herein
contained; all its covenants, conditions and provisions being for the sole
benefit of the parties hereto, the Holders and any Registrar and paying agents.
Section 2.12 Payment of Interest; Interest Rights Preserved. (a)
Interest on any Registered Security that is payable and is punctually paid or
duly provided for on any interest payment date shall be paid to the Person in
whose name such Registered Security is registered at the close of business on
the regular record date for such interest notwithstanding the cancellation of
such Registered Security upon any transfer or exchange subsequent to the regular
record date. In case a Coupon Security of any series is surrendered in exchange
for a Registered Security of such series after the close of business (at an
office or agency in a Place of Payment for such
26
series) on any regular record date and before the opening of business (at such
office or agency) on the next succeeding interest payment date, such Coupon
Security shall be surrendered without the Coupon relating to such interest
payment date and interest will not be payable on such interest payment date in
respect of the Registered Security issued in exchange for such Coupon Security,
but will be payable only to the Holder of such Coupon when due in accordance
with the provisions of this Indenture. Payment of interest on Registered
Securities shall be made at the corporate trust office of the Trustee (except as
otherwise specified pursuant to Section 2.03), or at the option of the Company,
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Debt Security Register or, if provided by the terms of the
Registered Securities pursuant to Section 2.03 and in accordance with
arrangements satisfactory to the Trustee, at the option of the Registered Holder
by wire transfer to an account designated by the Registered Holder.
(b) No interest shall be payable with respect to a Bearer
Security or Coupon unless such certification requirements as are specified
pursuant to Section 2.03(h) are satisfied with respect to such Bearer Security
or Coupon. Interest on any Coupon Security that is payable and is punctually
paid or duly provided for on any interest payment date shall be paid to the
Holder of the Coupon that has matured on such interest payment date upon
surrender of such Coupon on such interest payment date at the principal London
office of the Trustee or at such other Place of Payment outside the United
States specified pursuant to Section 2.03.
Interest on any Bearer Security (other than a Coupon Security) that is
payable and is punctually paid or duly provided for on any interest payment date
shall be paid to the Holder of the Bearer Security upon presentation of such
Bearer Security and notation thereon on such interest payment date at the
principal London office of the Trustee or at such other Place of Payment outside
the United States specified pursuant to Section 2.03.
Unless otherwise specified pursuant to Section 2.03, at the direction
of the Holder of any Bearer Security or Coupon payable in Dollars, and subject
to applicable laws and regulations, payments in respect of such Bearer Security
or Coupon will be made by check drawn on a bank in New York, New York or, if
provided by the terms of such Bearer Security or Coupon pursuant to Section 2.03
and in accordance with arrangements satisfactory to the Trustee, by wire
transfer to a Dollar account maintained by such Holder with a bank outside the
United States. If such payment at the offices of all paying agents outside the
United States becomes illegal or is effectively precluded because of the
imposition of exchange controls or similar restrictions on the full payment or
receipt of such amounts in Dollars, the Company will appoint an office or agent
in the United States at which such payment may be made. Unless otherwise
specified pursuant to Section 2.03, at the direction of the Holder of any Bearer
Security or Coupon payable in a Foreign Currency, payment on such Bearer
Security or Coupon will be made by a check drawn on a bank outside the United
States or, if provided by the terms of such Bearer Security or Coupon pursuant
to Section 2.03 and in accordance with arrangements satisfactory to the Trustee,
by wire transfer to an appropriate account maintained by such Holder outside the
United States. Except as provided in this paragraph, no payment on any Bearer
Security or Coupon will be made by mail to an address in the United States or by
transfer to an account maintained by the Holder thereof in the United States.
27
(c) Subject to the foregoing provisions of this Section 2.12
and Section 2.17, each Debt Security of a particular series delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any
other Debt Security of the same series shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debt
Security.
Section 2.13 Securities Denominated in Foreign Currencies. (a) Except
as otherwise specified pursuant to Section 2.03 for Bearer Securities of any
series, payment of the principal of, and premium, if any, and interest on,
Bearer Securities of such series denominated in any Currency will be made in
such Currency.
(b) Except as otherwise specified pursuant to Section 2.03 for
Registered Securities of any series, payment of the principal of, and premium,
if any, and interest on, Registered Securities of such series denominated in any
Currency will be made in Dollars.
(c) For the purposes of calculating the principal amount of
Debt Securities of any series denominated in a Foreign Currency or in units of
two or more Foreign Currencies (including European Currency Units) for any
purpose under this Indenture, the principal amount of such Debt Securities at
any time Outstanding shall be deemed to be the Dollar Equivalent of such
principal amount as of the date of any such calculation.
In the event any Foreign Currency or Currencies or units of two or more
Currencies in which any payment with respect to any series of Debt Securities
may be made ceases to be a freely convertible Currency on United States Currency
markets, for any date thereafter on which payment of principal of, or premium,
if any, or interest on, the Debt Securities of a series is due, the Company
shall select the Currency of payment for use on such date, all as provided in
the Debt Securities of such series. In such event, the Company shall notify the
Trustee of the Currency which it has selected to constitute the funds necessary
to meet the Company's obligations on such payment date and of the amount of such
Currency to be paid. Such amount shall be determined as provided in the Debt
Securities of such series. The payment with respect to such payment date shall
be deposited with the Trustee by the Company solely in the Currency so selected.
Section 2.14 Wire Transfers. Notwithstanding any other provision to the
contrary in this Indenture, the Company may make any payment of monies required
to be deposited with the Trustee on account of principal of, or premium, if any,
or interest on, the Debt Securities (whether pursuant to optional or mandatory
redemption payments, interest payments or otherwise) by wire transfer in
immediately available funds to an account designated by the Trustee on or before
the date such moneys are to be paid to the Holders of the Debt Securities in
accordance with the terms hereof.
Section 2.15 Securities Issuable in the Form of a Global Security. (a)
If the Company shall establish pursuant to Section 2.01 and Section 2.03 that
the Debt Securities of a particular series are to be issued in whole or in part
in the form of one or more Global Securities, then the Company shall execute and
the Trustee or its agent shall, upon receipt of a Company Order requesting
authentication and delivery in accordance with Section 2.05, authenticate and
deliver, such Global Security or Securities, which (i) shall represent, and
shall be denominated in
28
an amount equal to the aggregate principal amount of, the Outstanding Debt
Securities of such series to be represented by such Global Security or
Securities, or such portion thereof as the Company shall specify in an Officers'
Certificate, (ii) shall be registered in the name of the Depositary for such
Global Security or Securities or its nominee, (iii) shall be delivered by the
Trustee or its agent to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for the individual Debt
Securities represented hereby, this Global Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary", or such other legend as may then be required by
the Depositary for such Global Security or Securities.
(b) Notwithstanding any other provision of this Section 2.15
or of Section 2.07 to the contrary, and subject to the provisions of paragraph
(c) below, unless the terms of a Global Security expressly permit such Global
Security to be exchanged in whole or in part for definitive Debt Securities in
registered form, a Global Security may be transferred, in whole but not in part
and in the manner provided in Section 2.07, only by the Depositary to a nominee
of the Depositary for such Global Security, or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary, or by the Depositary or a
nominee of the Depositary to a successor Depositary for such Global Security
selected or approved by the Company, or to a nominee of such successor
Depositary.
(c) (i) If at any time the Depositary for a Global Security or
Securities notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or Securities or if at any time the
Depositary for the Debt Securities for such series shall no longer be eligible
or in good standing under the Exchange Act or other applicable statute or
regulation, the Company shall appoint a successor Depositary with respect to
such Global Security or Securities. If a successor Depositary for such Global
Security or Securities is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company
shall execute, and the Trustee or its agent, upon receipt of a Company Order for
the authentication and delivery of such individual Debt Securities of such
series in exchange for such Global Security, will authenticate and deliver,
individual Debt Securities of such series of like tenor and terms in definitive
form in an aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security or Securities.
(ii) The Company may at any time and in its sole
discretion determine that the Debt Securities of any series or portion thereof
issued or issuable in the form of one or more Global Securities shall no longer
be represented by such Global Security or Securities. In such event the Company
will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Debt Securities of such series in
exchange in whole or in part for such Global Security, will authenticate and
deliver individual Debt Securities of such series of like tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of such series or portion thereof in exchange for such Global Security or
Securities.
(iii) If specified by the Company pursuant to Section 2.01
and Section 2.03 with respect to Debt Securities issued or issuable in the form
of a Global Security, the
29
Depositary for such Global Security may surrender such Global Security in
exchange in whole or in part for individual Debt Securities of such series of
like tenor and terms in definitive form on such terms as are acceptable to the
Company, the Trustee and such Depositary. Thereupon the Company shall execute,
and the Trustee upon receipt of a Company Order for the authentication and
delivery of definitive Debt Securities of such series, shall authenticate and
deliver, without service charge, (1) to each Person specified by such Depositary
a new Debt Security or Securities of the same series of like tenor and terms and
of any authorized denomination as requested by such Person in aggregate
principal amount equal to and in exchange for such Person's beneficial interest
in the Global Security; and (2) to such Depositary a new Global Security of like
tenor and terms and in an authorized denomination equal to the difference, if
any, between the principal amount of the surrendered Global Security and the
aggregate principal amount of Debt Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the
preceding three paragraphs, the Company will execute and the Trustee, upon
receipt of a Company Order requesting the authentication and delivery of
individual Debt Securities, will authenticate and deliver individual Debt
Securities. Upon the exchange of the entire principal amount of a Global
Security for individual Debt Securities, such Global Security shall be canceled
by the Trustee or its agent. Except as provided in the preceding paragraph,
Registered Securities issued in exchange for a Global Security pursuant to this
Section 2.15 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to
instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee or the Registrar. The Trustee or the Registrar shall
deliver such Registered Securities to the Persons in whose names such Registered
Securities are so registered.
(v) Payments in respect of the principal of, premium,
if any, and interest on any Debt Securities registered in the name of the
Depositary or its nominee will be payable to the Depositary or such nominee in
its capacity as the registered owner of such Global Security. The Company and
the Trustee may treat the person in whose names the Debt Securities, including
the Global Security, are registered as the owner thereof for the purpose of
receiving such payments and for any and all other purposes whatsoever. None of
the Company, the Trustee, any Registrar, the paying agent or any agent of the
Company or the Trustee will have any responsibility or liability for (a) any
aspect of the records relating to or payments made on account of the beneficial
ownership interests of the Global Security by the Depositary or its nominee or
any of the Depositary's direct or indirect participants, or for maintaining,
supervising or reviewing any records of the Depositary, its nominee or any of
its direct or indirect participants relating to the beneficial ownership
interests of the Global Security, (b) the payments to the beneficial owners of
the Global Security of amounts paid to the Depositary or its nominee, or (c) for
any other matter relating to the actions and practices of the Depositary, its
nominee or any of its direct or indirect participants. None of the Company, the
Trustee or any such agent will be liable for any delay by the Depositary, its
nominee, or any of its direct or indirect participants in identifying the
beneficial owners of the Debt Securities, and the Company and the Trustee may
conclusively rely on, and will be protected in relying on, instructions from the
Depositary or its nominee for all purposes (including with respect to the
registration and delivery, and the respective principal amounts, of the Debt
Securities to be issued).
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The Trustee shall deliver individual Bearer Securities issued in
exchange for a Global Security pursuant to this Section 2.15 to the Persons 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; provided, however, that individual Bearer Securities
shall be delivered in exchange for a Global Security only in accordance with the
procedures set forth in Section 2.07 and as may be specified pursuant to Section
2.03.
Notwithstanding the foregoing, the exchange of Bearer Securities for
Registered Securities will be subject to the provisions of United States income
tax laws and regulations applicable to Debt Securities in effect at the time of
such exchange.
Section 2.16 Medium Term Securities. Notwithstanding any contrary
provision herein, if all Debt Securities of a series are not to be originally
issued at one time, it shall not be necessary for the Company to deliver to the
Trustee an Officers' Certificate, resolutions of the Board of Directors,
supplemental indenture, Opinion of Counsel or Company Order or any other
document otherwise required pursuant to Section 2.01, Section 2.03, Section 2.05
or Section 12.05 at or prior to the time of authentication of each Debt Security
of such series if such documents are delivered to the Trustee or its agent at or
prior to the authentication upon original issuance of the first such Debt
Security of such series to be issued; provided, that any subsequent request by
the Company to the Trustee to authenticate Debt Securities of such series upon
original issuance shall constitute a representation and warranty by the Company
that, as of the date of such request, the statements made in the Officers'
Certificate delivered pursuant to Section 2.05 and Section 12.05 shall be true
and correct as if made on such date and that the Opinion of Counsel delivered at
or prior to such time of authentication of an original issuance of Debt
Securities shall specifically state that it shall relate to all subsequent
issuances of Debt Securities of such series that are identical to the Debt
Securities issued in the first issuance of Debt Securities of such series.
A Company Order delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph may provide that Debt
Securities which are the subject thereof will be authenticated and delivered by
the Trustee or its agent on original issue from time to time upon the written
order delivered to the Trustee or its agent by Persons designated in such
Company Order and that such Persons are authorized to determine, consistent with
the Officers' Certificate, supplemental indenture or resolution of the Board of
Directors relating to such Company Order, such terms and conditions of such Debt
Securities as are specified in such Officers' Certificate, supplemental
indenture or such resolution.
Section 2.17 Defaulted Interest. (a) Any interest on any Debt Security
of a particular series which is payable, but is not punctually paid or duly
provided for, on the dates and in the manner provided in the Debt Securities of
such series and in this Indenture (herein called "Defaulted Interest") shall, if
such Debt Security is a Registered Security, forthwith cease to be payable to
the Registered Holder thereof on the relevant record date by virtue of having
been such Registered Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Registered Securities of
such series are registered at
31
the close of business on a special record date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company shall notify
the Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each such Registered Security of such series and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a
special record date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify the
Company of such special record date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the special record date therefor to be mailed, first class postage prepaid,
to each Holder thereof at its address as it appears in the Security Register,
not less than 10 days prior to such special record date. Notice of the proposed
payment of such Defaulted Interest and the special record date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series are registered at the close of
business on such special record date. In case a Coupon Security of any such
series is surrendered in exchange for a Registered Security of such series after
the close of business (at an office or agency in a Place of Payment for such
series) on any special record date and before the opening of business (at such
office or agency) on the related proposed date of payment of Defaulted Interest,
such Coupon Security shall be surrendered without the Coupon relating to such
proposed date of payment and Defaulted Interest will not be payable on such
proposed date of payment in respect of the Registered Security issued in
exchange for such Coupon Security, but will be payable only to the Holder of
such Coupon when due in accordance with the provisions of this Indenture.
(ii) The Company may make payment of any Defaulted
Interest on the Registered Securities of such series in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Registered Securities of such series may be listed, and upon such notice as may
be required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
(b) Any Defaulted Interest payable in respect of Bearer
Securities of any series shall be payable pursuant to such procedures as may be
satisfactory to the Trustee in such manner that there is no discrimination
between the Holders of Registered Securities (if any) and Bearer Securities of
such series, and notice of the payment date therefor shall be given by the
Trustee, in the name and at the expense of the Company, in the manner provided
in Section 12.03 not more than 25 days and not less than 20 days prior to the
date of the proposed payment.
Section 2.18 Judgments. The Company may provide pursuant to Section
2.03 for Debt Securities of any series that (a)the obligation, if any, of the
Company to pay the principal of, and premium, if any, and interest on, the Debt
Securities of any series in a Foreign Currency or Dollars (the "Designated
Currency") as may be specified pursuant to Section 2.03 is of the essence and
agrees that, to the fullest extent possible under applicable law, judgments in
respect
32
of Debt Securities of such series shall be given in the Designated Currency; (b)
the obligation of the Company to make payments in the Designated Currency of the
principal of, and premium, if any, and interest on, such Debt Securities shall,
notwithstanding any payment in any other Currency (whether pursuant to a
judgment or otherwise), be discharged only to the extent of the amount in the
Designated Currency that the Holder receiving such payment may, in accordance
with normal banking procedures, purchase with the sum paid in such other
Currency (after any premium and cost of exchange) on the business day in the
country of issue of the Designated Currency or in the international banking
community (in the case of a composite currency) immediately following the day on
which such Holder receives such payment; (c) if the amount in the Designated
Currency that may be so purchased for any reason falls short of the amount
originally due, the Company shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the
Company not discharged by such payment shall be due as a separate and
independent obligation and, until discharged as provided herein, shall continue
in full force and effect.
ARTICLE III
Redemption of Debt Securities
Section 3.01 Applicability of Article. The provisions of this Article
shall be applicable to the Debt Securities of any series which are redeemable
before their Stated Maturity except as otherwise specified as contemplated by
Section 2.03 for Debt Securities of such series.
Section 3.02 Tax Redemption; Special Tax Redemption. (a) Unless
otherwise specified pursuant to Section 2.03, Bearer Securities of any series
may be redeemed at the option of the Company in whole, but not in part, at any
time, on giving not less than 30 or more than 60 days' notice in accordance with
Section 3.03 (which notice shall be irrevocable), at the redemption price
thereof (calculated without premium), plus interest accrued to the redemption
date, if the Company has or will become obligated to pay additional interest on
such Bearer Securities pursuant to Section 4.06 as a result of any change in, or
amendment to, the laws (or any regulations or rulings promulgated thereunder) of
the United States or any political subdivision or taxing authority thereof or
therein, or any change in the application or official interpretation of such
laws, regulations or rulings, which change or amendment becomes effective on or
after the date on which any Person (including any Person acting as underwriter,
broker or dealer) agrees to purchase any of such Bearer Securities pursuant to
their original issuance, and such obligation cannot be avoided by the Company
taking reasonable measures available to it; provided, that no such notice of
redemption shall be given earlier than 90 days prior to the earliest date on
which the Company would be obligated to pay such additional interest were a
payment in respect of the Bearer Securities of that series then due. Prior to
the publication of any notice of redemption pursuant to this Section 3.02(a),
the Company shall deliver to the Trustee (i) an Officers' Certificate stating
that the Company is entitled to effect such redemption and setting forth a
statement of facts showing that the conditions precedent to the right of the
Company so to redeem have occurred and (ii) an Opinion of Counsel to the effect
that the Company has or will become obligated to pay such additional interest as
a result of such change or amendment.
(b) Unless otherwise specified pursuant to Section 2.03,
if the Company shall determine that any payment made outside the United States
by the Company or any of its paying
33
agents in respect of any Bearer Security or Coupon, if any, that is not a
Floating Rate Security (an "Affected Security") would, under any present or
future laws or regulations of the United States, be subject to any
certification, documentation, information or other reporting requirement of any
kind, the effect of which requirement is the disclosure to the Company, any
paying agent or any governmental authority of the nationality, residence or
identity of a beneficial owner of such Affected Security that is a United States
Alien (other than the certification requirements specified in Treasury
Regulation Section 1.163-5(c)(2)(i)(D)(3) and other than such a requirement (i)
that would not be applicable to a payment made by the Company or any one of its
paying agents (A) directly to the beneficial owner or (B) to a custodian,
nominee or other agent of the beneficial owner, or (ii) that can be satisfied by
such custodian, nominee or other agent certifying to the effect that the
beneficial owner is a United States Alien; provided, that, in any case referred
to in clause (i)(B) or (ii), payment by the custodian, nominee or agent to the
beneficial owner is not otherwise subject to any such requirement), then the
Company shall elect either (x) to redeem such Affected Securities in whole, but
not in part, at the redemption price thereof (calculated without premium), plus
interest accrued to the redemption date, or (y) if the conditions of the next
succeeding paragraph are satisfied, to pay the additional interest specified in
such paragraph. The Company shall make such determination as soon as practicable
and publish prompt notice thereof in accordance with Section 12.03 (the
"Determination Notice"), stating the effective date of such certification,
documentation, information or other reporting requirement, whether the Company
elects to redeem the Affected Securities or to pay the additional interest
specified in the next succeeding paragraph and (if applicable) the last date by
which the redemption of the Affected Securities must take place, as provided in
the next succeeding sentence. If any Affected Securities are to be redeemed
pursuant to this paragraph, the redemption shall take place on such date, not
later than one year after the publication of the Determination Notice, as the
Company shall specify by notice given to the Trustee at least 60 days before the
redemption date. Notice of such redemption shall be given to the Holders of the
Affected Securities not more than 60 days or less than 30 days prior to the
redemption date in accordance with Section 3.03. Notwithstanding the foregoing,
the Company shall not so redeem the Affected Securities if the Company shall
subsequently determine, not less than 30 days prior to the redemption date, that
subsequent payments on the Affected Securities would not be subject to any such
certification, documentation, information or other reporting requirement, in
which case the Company shall publish prompt notice of such subsequent
determination in accordance with Section 12.03, and any earlier redemption
notice given pursuant to this paragraph shall be revoked and of no further
effect. Prior to the publication of any Determination Notice pursuant to this
paragraph, the Company shall deliver to the Trustee (i) an Officers' Certificate
stating that the Company is entitled to make such determination and setting
forth a statement of facts showing that the conditions precedent to the
obligation of the Company to redeem the Affected Securities or to pay the
additional interest specified in the next succeeding paragraph have occurred and
(ii) an Opinion of Counsel to the effect that such conditions have occurred.
If and so long as the certification, documentation, information or
other reporting requirement referred to in the preceding paragraph would be
fully satisfied by payment of a backup withholding tax or similar charge, the
Company may elect to pay as additional interest such amounts as may be necessary
so that every net payment made outside the United States following the effective
date of such requirement by the Company or any of its paying agents in respect
of any Affected Security of which the beneficial owner is a United States Alien
(but without any requirement that the nationality, residence or identity of such
beneficial owner be
34
disclosed to the Company, any paying agent or any governmental authority) (after
deduction or withholding for or on account of such backup withholding tax or
similar charge that (i) would not be applicable in the circumstances referred to
in the parenthetical clause of the first sentence of the preceding paragraph or
(ii) is imposed as a result of presentation of any such Affected Security for
payment more than 15 days after the date on which such payment became due and
payable or on which payment thereof was duly provided for, whichever occurred
later), will not be less than the amount provided in any such Affected Security
to be then due and payable. If the Company elects to pay additional interest
pursuant to this paragraph, the Company shall have the right to redeem the
Affected Securities at any time in whole, but not in part, at the redemption
price thereof (calculated without premium), plus interest accrued to the
redemption date, subject to the provisions of the last three sentences of the
immediately preceding paragraph. If the Company elects to pay additional
interest pursuant to this paragraph and the condition specified in the first
sentence of this paragraph should no longer be satisfied, then the Company shall
redeem the Affected Securities in whole, but not in part, at the redemption
price thereof (calculated without premium), plus interest accrued to the
redemption date, subject to the provisions of the last three sentences of the
immediately preceding paragraph. Any redemption payments made by the Company
pursuant to the two immediately preceding sentences shall be subject to the
continuing obligation of the Company to pay additional interest pursuant to this
paragraph. If the Company elects to, or is required to, redeem the Affected
Securities pursuant to this paragraph, it shall publish prompt notice thereof in
accordance with Section 12.03. If the Affected Securities are to be redeemed
pursuant to this paragraph, the redemption shall take place on such date, not
later than one year after publication of the notice of redemption, as the
Company shall specify by notice to the Trustee at least 60 days prior to the
redemption date.
Section 3.03 Notice of Redemption; Selection of Debt Securities. In
case the Company shall desire to exercise the right to redeem all or, as the
case may be, any part of the Debt Securities of any series in accordance with
their terms, the Company shall notify the Trustee and deliver certain documents
as set forth in the third paragraph of this Section 3.03 and shall fix a date
for redemption and shall give notice of such redemption at least 30 and not more
than 60 days prior to the date fixed for redemption to the Holders of Debt
Securities of such series so to be redeemed as a whole or in part, in the manner
provided in Section 12.03. The notice if given in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives such notice. In any case, failure to give such notice or any
defect in the notice to the Holder of any Debt Security of a series designated
for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Debt Security of such series.
Each such notice of redemption shall specify (a) the date fixed for
redemption, (b) the redemption price at which Debt Securities of such series are
to be redeemed, (c) the Place or Places of Payment that payment will be made
upon presentation and surrender of such Debt Securities, (d) that any interest
accrued to the date fixed for redemption will be paid as specified in said
notice, (e) that the redemption is for a sinking fund payment (if applicable),
(f) that, unless otherwise specified in such notice, Coupon Securities of any
series, if any, surrendered for redemption must be accompanied by all Coupons
maturing subsequent to the date fixed for redemption, failing which the amount
of any such missing Coupon or Coupons will be deducted from the redemption
price, (g) if the Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be
35
exchanged for Registered Securities not subject to redemption on the applicable
redemption date pursuant to Section 2.15(c) or otherwise, the last date on which
such exchanges may be made, (h) that, unless the Company defaults in making such
redemption payment or the paying agent is prohibited from making such payment
pursuant to the terms of this Indenture, on and after the redemption date any
interest thereon or on the portions thereof to be redeemed will cease to accrue,
(i) that in the case of Original Issue Discount Securities, original issue
discount accrued after the date fixed for redemption will cease to accrue, and
(j) the terms of the Debt Securities of that series pursuant to which the Debt
Securities of that series are being redeemed. If less than all the Debt
Securities of a series are to be redeemed the notice of redemption shall specify
the CUSIP numbers of the Debt Securities of that series to be redeemed. In case
any Debt Security of a series is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be
redeemed and shall state that on and after the date fixed for redemption, upon
surrender of such Debt Security, a new Debt Security or Debt Securities of that
series in principal amount equal to the unredeemed portion thereof, and with
appropriate Coupons, will be issued.
At least 60 days before the redemption date unless the Trustee consents
to a shorter period, the Company shall give notice to the Trustee of the
redemption date, the principal amount of Debt Securities to be redeemed and the
series and terms of the Debt Securities pursuant to which such redemption will
occur. Such notice shall be accompanied by an Officers' Certificate and an
Opinion of Counsel from the Company to the effect that such redemption will
comply with the conditions herein. If fewer than all the Debt Securities of a
series are to be redeemed, the record date relating to such redemption shall be
selected by the Company and given to the Trustee, which record date shall be not
less than 15 days after the date of notice to the Trustee.
On or prior to the redemption date for any Registered Securities, the
Company shall deposit with the Trustee or with a paying agent (or, if the
Company is acting as its own paying agent, segregate and hold in trust) an
amount of money in the Currency in which such Debt Securities are denominated
(except as provided pursuant to Section 2.03) sufficient to pay the redemption
price, plus interest accrued to the redemption date, of such Registered
Securities or any portions thereof that are to be redeemed on that date. In the
case of any redemption pertaining to Bearer Securities or Coupon Securities, the
Company shall, no later than the business day prior to such redemption date,
deposit with the Trustee or with a paying agent (other than the Company) an
amount of money in the Currency in which such Debt Securities are denominated
(except as provided pursuant to Section 2.03) sufficient to pay the redemption
price, plus interest accrued to the redemption date, of such Bearer Securities
or Coupon Securities or any portion thereof that are to be redeemed on the
redemption date.
If less than all the Debt Securities of like tenor and terms of a
series are to be redeemed (other than pursuant to mandatory sinking fund
redemptions) the Trustee shall select, in such manner as in its sole discretion
it shall deem appropriate and fair, the Debt Securities of that series or
portions thereof (in multiples of $1,000) to be redeemed. In any case where more
than one Registered Security of such series is registered in the same name, the
Trustee in its discretion may treat the aggregate principal amount so registered
as if it were represented by one Registered Security of such series. The Trustee
shall promptly notify the Company in writing of the Debt Securities selected for
redemption and, in the case of any Debt Securities selected for
36
partial redemption, the principal amount thereof to be redeemed. If any Debt
Security called for redemption shall not be so paid upon surrender thereof on
such redemption date, the principal, premium, if any, and interest shall bear
interest until paid from the redemption date at the rate borne by the Debt
Securities of that series. If less than all the Debt Securities of unlike tenor
and terms of a series are to be redeemed, the particular Debt Securities to be
redeemed shall be selected by the Company. Provisions of this Indenture that
apply to Debt Securities called for redemption also apply to portions of Debt
Securities called for redemption.
Section 3.04 Payment of Debt Securities Called for Redemption. If
notice of redemption has been given as provided in Section 3.03, the Debt
Securities or portions of Debt Securities of the series with respect to which
such notice has been given shall become due and payable on the date and at the
Place or Places of Payment stated in such notice at the applicable redemption
price, together with any interest accrued to the date fixed for redemption, and
on and after said date (unless the Company shall default in the payment of such
Debt Securities at the applicable redemption price, together with any interest
accrued to said date) any interest on the Debt Securities or portions of Debt
Securities of any series so called for redemption shall cease to accrue, any
original issue discount in the case of Original Issue Discount Securities shall
cease to accrue and any Coupons for such interest appertaining to any Coupon
Securities to be redeemed, except to the extent described below, shall be void.
On presentation and surrender of such Debt Securities at the Place or Places of
Payment in said notice specified, the said Debt Securities or the specified
portions thereof shall be paid and redeemed by the Company at the applicable
redemption price, together with any interest accrued thereon to the date fixed
for redemption (except for interest accrued in respect of any Debt Securities or
portions thereof called for redemption that have been delivered by the Company
to the Trustee for cancellation).
If any Coupon Security surrendered for redemption shall not be
accompanied by all Coupons appertaining thereto maturing on or after the
applicable redemption date, the redemption price for such Coupon Security may be
reduced by an amount equal to the face amount of all such missing Coupons. If
thereafter the Holder of such Coupon shall surrender to any paying agent outside
the United States any such missing Coupon in respect of which a deduction shall
have been made from the redemption price, such Holder shall be entitled to
receive the amount so deducted. The surrender of such missing Coupon or Coupons
may be waived by the Company and the Trustee, if there be furnished to them such
security or indemnity as they may require to save each of them and any paying
agent harmless.
Any Debt Security that is to be redeemed only in part shall be
surrendered at the corporate trust office of the Trustee or such other office or
agency of the Company as is specified pursuant to Section 2.03 (in the case of
Registered Securities) and at the principal London office of the Trustee or such
other office or agency of the Company outside the United States as is specified
pursuant to Section 2.03 (in the case of Bearer Securities) with, if the
Company, the Registrar or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company, the
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing, and the Company shall execute, and, upon receipt of
a Company Order requesting authentication and delivery, the Trustee shall
authenticate and deliver to the Holder of such Debt Security without service
charge, a new Debt Security or Debt Securities of the same series, of like tenor
and form, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the
37
unredeemed portion of the principal of the Debt Security so surrendered, and, in
the case of a Coupon Security, with appropriate Coupons attached; except that if
a Global Security is so surrendered, the Company shall execute, and, upon
receipt of a Company Order requesting authentication and delivery, the Trustee
shall authenticate and deliver to the Depositary for such Global Security,
without service charge, a new Global Security in a denomination equal to and in
exchange for the unredeemed portion of the principal of the Global Security so
surrendered. In the case of a Debt Security providing appropriate space for such
notation, at the option of the Holder thereof, the Trustee, in lieu of
delivering a new Debt Security or Debt Securities as aforesaid, may make a
notation on such Debt Security of the payment of the redeemed portion thereof.
Section 3.05 Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of Debt Securities of any
series is herein referred to as a "mandatory sinking fund payment", and any
payment in excess of such minimum amount provided for by the terms of Debt
Securities of any series is herein referred to as an "optional sinking fund
payment".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any Debt Securities of a series in cash, the Company may at its
option (a) deliver to the Trustee Debt Securities of that series (together with
the unmatured Coupons, if any, appertaining thereto) theretofore purchased or
otherwise acquired by the Company or (b) receive credit for the principal amount
of Debt Securities of that series which have been redeemed either at the
election of the Company pursuant to the terms of such Debt Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Debt Securities; provided, that such Debt Securities have not been
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee at the redemption price specified in such Debt
Securities for redemption through operation of the sinking fund and the amount
of such mandatory sinking fund payment shall be reduced accordingly.
Section 3.06 Redemption of Debt Securities for Sinking Fund. Not less
than 60 days prior to each sinking fund payment date for any series of Debt
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency in which the Debt Securities of
such series are denominated (except as provided pursuant to Section 2.03) and
the portion thereof, if any, which is to be satisfied by delivering and
crediting Debt Securities of that series pursuant to this Section 3.06 (which
Debt Securities, if not previously redeemed, will accompany such certificate)
and whether the Company intends to exercise its right to make any permitted
optional sinking fund payment with respect to such series. Such certificate
shall also state that no Event of Default has occurred and is continuing with
respect to such series. Such certificate shall be irrevocable and upon its
delivery the Company shall be obligated to make the cash payment or payments
therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Company to deliver such certificate (or to deliver
the Debt Securities and Coupons, if any, specified in this paragraph) shall not
constitute a Default, but such failure shall require that the sinking fund
payment due on the next succeeding sinking fund payment date for that series
shall be paid entirely in cash and shall be sufficient to redeem the principal
amount of such Debt Securities subject to a mandatory sinking fund payment
without the option to deliver or
38
credit Debt Securities as provided in this Section 3.06 and without the right to
make any optional sinking fund payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made in cash
which shall equal or exceed $100,000 (or a lesser sum if the Company shall so
request) with respect to the Debt Securities of any particular series shall be
applied by the Trustee on the sinking fund payment date on which such payment is
made (or, if such payment is made before a sinking fund payment date, on the
sinking fund payment date following the date of such payment) to the redemption
of such Debt Securities at the redemption price specified by the terms of such
Debt Securities for operation of the sinking fund together with any accrued
interest to the date fixed for redemption. Any sinking fund moneys not so
applied or allocated by the Trustee to the redemption of Debt Securities shall
be added to the next cash sinking fund payment received by the Trustee for such
series and, together with such payment, shall be applied in accordance with the
provisions of this Section 3.06. Any and all sinking fund moneys with respect to
the Debt Securities of any particular series held by the Trustee on the last
sinking fund payment date with respect to Debt Securities of such series and not
held for the payment or redemption of particular Debt Securities shall be
applied by the Trustee, together with other moneys, if necessary, to be
deposited sufficient for the purpose, to the payment of the principal of the
Debt Securities of that series at its Stated Maturity.
The Trustee shall select the Debt Securities to be redeemed upon such
sinking fund payment date in the manner specified in the last paragraph of
Section 3.03 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 3.03 except that the notice of
redemption shall also state that the Debt Securities are being redeemed by
operation of the sinking fund. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Section 3.04.
At least one business day before each sinking fund payment date, the
Company shall pay to the Trustee (or, if the Company is acting as its own paying
agent, the Company shall segregate and hold in trust) in cash a sum in the
Currency in which the Debt Securities of such series are denominated (except as
provided pursuant to Section 2.03) equal to any interest accrued to the date
fixed for redemption of Debt Securities or portions thereof to be redeemed on
such sinking fund payment date pursuant to this Section 3.06.
The Trustee shall not redeem any Debt Securities of a series with
sinking fund moneys or mail any notice of redemption of such Debt Securities by
operation of the sinking fund for such series during the continuance of a
Default in payment of interest on such Debt Securities or of any Event of
Default (other than an Event of Default occurring as a consequence of this
paragraph) with respect to such Debt Securities, except that if the notice of
redemption of any such Debt Securities shall theretofore have been mailed in
accordance with the provisions hereof, the Trustee shall redeem such Debt
Securities if cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this Article III.
Except as aforesaid, any moneys in the sinking fund for such series at the time
when any such Default or Event of Default shall occur and any moneys thereafter
paid into such sinking fund shall, during the continuance of such Default or
Event of Default, be held as security for the payment of such Debt Securities;
provided, however, that in case such Event of Default or
39
Default shall have been cured or waived as provided herein, such moneys shall
thereafter be applied on the next sinking fund payment date for such Debt
Securities on which such moneys may be applied pursuant to the provisions of
this Section 3.06.
ARTICLE IV
Covenants of the Company
Section 4.01 Payment of Principal of, and Premium, If Any, and Interest
on, Debt Securities. The Company, for the benefit of each series of Debt
Securities, will duly and punctually pay or cause to be paid the principal of,
and premium, if any, and interest on, each of the Debt Securities and pay any
Coupons at the Place of Payment, at the respective times and in the manner
provided herein, in the Debt Securities and in the Coupons. Each installment of
interest on the Registered Securities may, at the Company's option, be paid by
mailing checks for such interest payable to the Person entitled thereto pursuant
to Section 2.07(a) to the address of such Person as it appears on the Debt
Security Register, or if provided by the terms of the Registered Securities
pursuant to Section 2.03 and in accordance with arrangements satisfactory to the
Trustee, at the option of the Registered Holder by wire transfer to an account
designated by the Registered Holder. Any interest due on Coupon Securities on or
before the Stated Maturity of the related Debt Security, other than additional
interest, if any, payable as provided in Section 4.06 in respect of principal
of, or premium, if any, on such a Debt Security, shall be payable only upon
presentation and surrender of the several Coupons for such interest installments
as are evidenced thereby as they severally mature. Payments of principal of or
premium, if any, on any Debt Security shall be payable only upon presentation
and surrender of the Debt Security.
Principal, premium and interest of Debt Securities of any series shall
be considered paid on the date due if on such date (a) the Trustee or any paying
agent holds in accordance with this Indenture money sufficient to pay in the
Currency in which the Debt Securities of such series are denominated with
respect to Bearer Securities or in Dollars with respect to Registered Securities
(in each case, except as otherwise provided pursuant to Section 2.03) all
principal, premium and interest then due and (b) the Trustee or such paying
agent, as the case may be, is not prohibited from paying such money to the
Holders on that date pursuant to the terms of this Indenture.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Debt Securities and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
Section 4.02 Maintenance of Offices or Agencies for Registration of
Transfer, Exchange and Payment of Debt Securities. The Company will maintain in
each Place of Payment for any series of Debt Securities and Coupons, if any, an
office or agency where Debt Securities and Coupons of such series (but, except
as otherwise provided in Section 2.12, unless such Place of Payment is located
outside the United States, not Bearer Securities or Coupons) may be presented or
surrendered for payment, where Debt Securities of such series may be surrendered
for transfer or exchange and where notices and demands to or upon the Company in
respect of the Debt Securities and Coupons of such series and this Indenture may
be served. So long as any Bearer Securities of any series remain outstanding,
the Company will maintain for such purposes one or more offices or agencies
outside the United States in such city or cities
40
specified pursuant to Section 2.03 and, if any Bearer Securities are listed on a
securities exchange that requires an office or agency for the payment of
principal of, and premium, if any, or interest on, such Bearer Securities in a
location other than the location of an office or agency specified pursuant to
Section 2.03, the Company will maintain for such purposes an office or agency in
such location so long as any Bearer Securities are listed on such securities
exchange and such exchange so requires. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of such
office or agency. If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the corporate trust office of the Trustee (in the case of Registered
Securities) and at the principal London office of the Trustee (in the case of
Bearer Securities), and the Company hereby appoints the Trustee as its agent to
receive all presentations, surrenders, notices and demands.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designation; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligations described in the preceding
paragraph. The Company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
Section 4.03 Appointment to Fill a Vacancy in the Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so
that there shall at all times be a Trustee hereunder with respect to each series
of Debt Securities.
Section 4.04 Duties of Paying Agents, etc. (a) The Company shall cause
each paying agent, if any, other than the Trustee, to execute and deliver to the
Trustee an instrument in which such agent shall agree with the Trustee, subject
to the provisions of this Section 4.04,
(i) that it will hold all sums held by it as such
agent for the payment of the principal of, and premium, if any, or interest on,
the Debt Securities of any series and the payment of any related Coupons
(whether such sums have been paid to it by the Company or by any other obligor
on the Debt Securities or Coupons of such series) in trust for the benefit of
the Holders of the Debt Securities and Coupons of such series;
(ii) that it will give the Trustee notice of any
failure by the Company (or by any other obligor on the Debt Securities or
Coupons of such series) to make any payment of the principal of, and premium, if
any, or interest on, the Debt Securities of such series or any payment on any
related Coupons when the same shall be due and payable; and
(iii) that it will at any time during the continuance
of an Event of Default, upon the written request of the Trustee, forthwith pay
to the Trustee all sums so held by it as such agent.
41
(b) If the Company shall act as its own paying agent, it
will, on or before each due date of the principal of, and premium, if any, or
interest on, the Debt Securities and Coupons, if any, of any series, set aside,
segregate and hold in trust for the benefit of the Holders of the Debt
Securities and Coupons of such series a sum sufficient to pay such principal,
premium, if any, or interest so becoming due. The Company will promptly notify
the Trustee of any failure by the Company to take such action or the failure by
any other obligor on such Debt Securities or Coupons to make any payment of the
principal of, and premium, if any, or interest on, such Debt Securities or
Coupons when the same shall be due and payable.
(c) Anything in this Section 4.04 to the contrary
notwithstanding, the Company may, at any time, for the purpose of obtaining a
satisfaction and discharge of this Indenture, or for any other reason, pay or
cause to be paid to the Trustee all sums held in trust by it or any paying
agent, as required by this Section 4.04, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such paying agent.
(d) Whenever the Company shall have one or more paying
agents with respect to any series of Debt Securities and Coupons, it will, prior
to each due date of the principal of, and premium, if any, or interest on, any
Debt Securities of such series, deposit with any such paying agent a sum
sufficient to pay the principal, premium or interest so becoming due, such sum
to be held in trust for the benefit of the Persons entitled thereto, and (unless
any such paying agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
(e) Anything in this Section 4.04 to the contrary
notwithstanding, the agreement to hold sums in trust as provided in this Section
4.04 is subject to the provisions of Section 11.05.
(f) The Company initially appoints the Trustee as the
paying agent hereunder.
Section 4.05 Statement by Officers as to Default. The Company will
deliver to the Trustee, on or before a date not more than four months after the
end of each fiscal year of the Company (currently on a calendar year basis)
ending after the date hereof, an Officers' Certificate stating, as to each
officer signing such certificate, that (i) in the course of his performance of
his duties as an officer of the Company he would normally have knowledge of any
Default, (ii) whether or not to the best of his knowledge any Default occurred
during such year and (iii) if to the best of his knowledge the Company is in
Default, specifying all such Defaults and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with
Section 314(a)(4) of the Trust Indenture Act.
Section 4.06 Payment of Additional Interest. Unless otherwise provided
pursuant to Section 2.03, the provisions of this Section 4.06 shall be
applicable to Bearer Securities of any series.
The Company will, subject to the exceptions and limitations set forth
below, pay as additional interest to the Holder of any Bearer Security or Coupon
that is a United States Alien such amounts as may be necessary so that every net
payment on such Bearer Security or Coupon, after deduction or withholding for or
on account of any present or future tax, assessment or other
42
governmental charge by the United States (or any political subdivision or taxing
authority thereof or therein) imposed upon or as a result of such payment, will
not be less than the amount provided in such Bearer Security or Coupon to be
then due and payable. However, the Company will not be required to make any such
payment of additional interest for or on account of:
(a) any tax, assessment or other governmental charge that
would not have been imposed but for (i) the existence of any present or former
connection between such Holder (or between a fiduciary, settlor or beneficiary
of, or a Person holding a power over, such Holder, if such Holder is an estate
or a trust, or a member or shareholder of such Holder, if such Holder is a
partnership or corporation) and the United States, including such Holder (or
such fiduciary, settlor, beneficiary, Person holding a power, member or
shareholder) being or having been a citizen or resident thereof or being or
having been engaged in trade or business or present therein or having or having
had a permanent establishment therein or (ii) such Holder's past or present
status as a personal holding company, foreign personal holding company or
private foundation or other tax-exempt organization with respect to the United
States or as a corporation that accumulates earnings to avoid United States
federal income tax;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge that
would not have been imposed but for the presentation by the Holder of a Bearer
Security or Coupon for payment more than 15 days after the date on which such
payment became due and payable or on which payment thereof was duly provided
for, whichever occurs later;
(d) any tax, assessment or other governmental charge that is
payable otherwise than by deduction or withholding from a payment on a Bearer
Security or Coupon;
(e) any tax, assessment or other governmental charge which is
required to be deducted or withheld from a payment on a Bearer Security or
Coupon because such payment is made by or through a U.S. middleman (as defined
in Treasury Regulation Section 1.6049-5(c)(5)) that, as a custodian or nominee
of the Holder, collects the payment for, or on behalf of, the Holder;
(f) any tax, assessment or other governmental charge that
would not have been imposed but for a failure to comply with applicable
certification, documentation, information or other reporting requirement
concerning the nationality, residence, identity or connection with the United
States of the Holder or beneficial owner of a Bearer Security or Coupon if,
without regard to any tax treaty, such compliance is required by statute or
regulation of the United States as a precondition to relief or exemption from
such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed
on a Holder that actually or constructively owns ten percent or more of the
combined voting power of all classes of stock of the Company or that is a
controlled foreign corporation related to the Company through stock ownership;
or
43
(h) any tax, assessment, or other governmental charge imposed
on a Holder that is a foreign bank pursuant to a determination that amounts paid
or accrued with respect to a Bearer Security or Coupon constitute interest
received by the bank on an extension of credit made pursuant to a loan agreement
entered into in the ordinary course of the bank's trade or business (within the
meaning of Section 881(c)(3)(A) of the Internal Revenue Code);
nor shall additional interest be paid with respect to a payment on a Bearer
Security or Coupon to a Holder that is a fiduciary or partnership or other than
the sole beneficial owner of such payment to the extent a beneficiary or settlor
with respect to such fiduciary or a member of such partnership or a beneficial
owner would not have been entitled to the additional interest had such
beneficiary, settlor, member or beneficial owner been the Holder of such Bearer
Security or Coupon.
Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of, or premium, if any, or interest on, any Debt
Security or payment with respect to any Coupon of any series, such mention shall
be deemed to include mention of the payment of additional interest provided for
in the terms of such Debt Securities and this Section 4.06 to the extent that,
in such context, additional interest is, was or would be payable in respect
thereof pursuant to the provisions of this Section 4.06 and express mention of
the payment of additional interest (if applicable) in any provisions hereof
shall not be construed as excluding additional interest in those provisions
hereof where such express mention is not made.
If the payment of additional interest becomes required in respect of
the Debt Securities of a series, at least ten days prior to the first interest
payment date with respect to which such additional interest will be payable (or
if the Debt Securities of that series will not bear interest prior to its Stated
Maturity, the first day on which a payment of principal, and premium, if any, is
made and on which such additional interest will be payable), and at least ten
days prior to each date of payment of principal, and premium, if any, or
interest if there has been any change with respect to the matters set forth in
the below-mentioned Officers' Certificate, the Company will furnish the Trustee
and each paying agent with an Officers' Certificate that shall specify by
country the amount, if any, required to be withheld on such payments to Holders
of Debt Securities or Coupons that are United States Aliens, and the Company
will pay to the Trustee or such paying agent the additional interest, if any,
required by the terms of such Debt Securities and this Section 4.06. The Company
covenants to indemnify the Trustee and any paying agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers' Certificate
furnished pursuant to this Section 4.06.
Section 4.07 Limitation on Liens. The Company shall not, and shall not
permit any of its Subsidiaries to, create or permit to exist any Lien on any
Principal Property or shares of Capital Stock or Indebtedness of a Subsidiary of
the Company that owns or leases Principal Property, whether owned on the issue
date of the Debt Securities or thereafter acquired, securing any obligation
unless the Company contemporaneously secures the Debt Securities equally and
ratably with (or prior to) such obligation until such time as such obligation is
no longer secured by a Lien. The preceding sentence shall not require the
Company to secure the Debt Securities if the Lien consists of either of the
following:
44
(a) Permitted Liens; or
(b) Liens securing Indebtedness if, after giving pro forma
effect to the incurrence of such Indebtedness (and the receipt and application
of the proceeds thereof) or the securing of outstanding Indebtedness, the sum of
(without duplication) (i) all Indebtedness of the Company and its Subsidiaries
secured by Liens on Principal Property (other than Permitted Liens) and (ii) all
Attributable Indebtedness in respect of Sale and Leaseback Transactions with
respect to any Principal Property, at the time of determination does not exceed
15% of Adjusted Consolidated Net Tangible Assets.
Section 4.08 Limitation on Sales and Leasebacks. The Company shall not,
and shall not permit any of its Subsidiaries to, directly or indirectly, enter
into any Sale and Leaseback Transaction with respect to any Principal Property
unless either, (a) the Company or such Subsidiary would be entitled to create a
Lien on such Principal Property securing Indebtedness in an amount equal to the
Attributable Indebtedness with respect to such Sale and Leaseback Transaction
without securing the Debt Securities pursuant to Section 4.07 or (b) the
Company, within six months after the effective date of such Sale and Leaseback
Transaction, applies to the voluntary defeasance or retirement of Debt
Securities or other Indebtedness an amount equal to the Attributable
Indebtedness in respect of such Sale and Leaseback Transaction.
Section 4.09 Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
Section 4.07 and Section 4.08 with respect to the Debt Securities of any series
if before or after the time for such compliance the Holders of at least a
majority in aggregate principal amount of the Outstanding Debt Securities of
such series shall either waive such compliance in such instance or generally
waive compliance with such term, provision or condition, but no such waiver
shall extend to or affect such term, provision or condition except to the extent
so expressly waived, and, until such waiver shall become effective, the
obligations of the Company in respect of any such term, provision or condition
shall remain in full force and effect.
Section 4.10 Existence. Other than in connection with a transaction
permitted pursuant to Article X, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if an
officer of the Company shall determine that the preservation thereof is no
longer desirable in the conduct of the Company's business.
Section 4.11 Further Instruments and Acts. The Company will, upon
request of the Trustee, execute and deliver such further instruments and do such
further acts as may reasonably be necessary or proper to carry out more
effectually the purposes of this Indenture.
45
ARTICLE V
Holders' Lists and Reports
By the Company and the Trustee
Section 5.01 Company to Furnish Trustee Information as to Names and
Addresses of Holders; Preservation of Information. The Company covenants and
agrees that it will furnish or cause to be furnished to the Trustee with respect
to the Registered Securities of each series:
(a) not more than 15 days after each record date with respect
to the payment of interest, if any, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Registered Holders as of
such record date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and contents as of a date not more than 15 days prior to the time
such list is furnished;
provided, however, that so long as the Trustee shall be the Registrar, such
lists shall not be required to be furnished.
The Company shall also be required to furnish to the Trustee at all
such times set forth above all information in the possession or control of the
Company or any of its paying agents other than the Trustee as to the names and
addresses of the Bearer Holders of all series; provided, however, that the
Company shall have no obligation to investigate any matter relating to any
Bearer Holders.
The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders (1)
contained in the most recent list furnished to it as provided in this Section
5.01 or (2) received by it in the capacity of paying agent or Registrar (if so
acting) hereunder.
The Trustee may destroy any list furnished to it as provided in this
Section 5.01 upon receipt of a new list so furnished.
Section 5.02 Communications to Holders. Holders may communicate
pursuant to Section 312(b) of the Trust Indenture Act with other Holders with
respect to their rights under this Indenture or the Debt Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
Section 312(c) of the Trust Indenture Act.
Section 5.03 Reports by Company. (a) The Company covenants and agrees,
and any obligor hereunder shall covenant and agree, to file with the Trustee and
the Holders (in the manner and to the extent provided in Section 5.04), within
15 days after the Company or such obligor, as the case may be, is required to
file the same with the Securities and Exchange Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as said Commission may from time to time by
rules and regulations prescribe) which the Company or such obligor, as the case
may be, may be required to file with said Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company or such obligor, as the
case may be, is not required to file information, documents or reports pursuant
to either of such Sections, then to file with the Trustee, the
46
Holders (in the manner and to the extent provided in Section 5.04) and said
Commission, in accordance with rules and regulations prescribed from time to
time by said Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations.
(b) The Company covenants and agrees, and any obligor
hereunder shall covenant and agree, to file with the Trustee, the Holders (in
the manner and to the extent provided in Section 5.04) and the Securities and
Exchange Commission, in accordance with the rules and regulations prescribed
from time to time by said Commission, such additional information, documents,
and reports with respect to compliance by the Company or such obligor, as the
case may be, with the conditions and covenants provided for in this Indenture as
may be required from time to time by such rules and regulations.
Section 5.04 Reports by Trustee. As promptly as practicable after each
January 1 beginning with the January 1 following the date of this Indenture, and
in any event prior to March 1 in each year, the Trustee shall mail to each
Holder a brief report dated as of December 31 of the prior year if and to the
extent required by Section 313(a) of the Trust Indenture Act. The Trustee also
shall comply with Section 313(b) of the Trust Indenture Act.
Reports pursuant to this Section 5.04 shall be transmitted by mail:
(a) to all Registered Holders, as the names and addresses of
such Holders appear in the Debt Security Register;
(b) to such Bearer Holders of any series as have, within two
years preceding such transmission, filed their names and addresses with the
Trustee for such series for that purpose; and
(c) except in the cases of reports under Section 313(b)(2) of
the Trust Indenture Act, to each Holder of a Debt Security of any series whose
name and address appear in the information preserved at the time by the Trustee
in accordance with Section 5.02.
A copy of each report at the time of its mailing to Holders shall be
filed with the Securities and Exchange Commission and each stock exchange (if
any) on which the Debt Securities of any series are listed. The Company agrees
to notify promptly the Trustee whenever the Debt Securities of any series become
listed on any stock exchange and of any delisting thereof.
Section 5.05 Record Dates for Action by Holders. If the Company shall
solicit from the Holders of Debt Securities of any series any action (including
the making of any demand or request, the giving of any direction, notice,
consent or waiver or the taking of any other action), the Company may, at its
option, by resolution of the Board of Directors, fix in advance a record date
for the determination of Holders of Debt Securities entitled to take such
action, but the Company shall have no obligation to do so. Any such record date
shall be fixed at the Company's discretion. If such a record date is fixed, such
action may be sought or given before or after the record date, but only the
Holders of Debt Securities of record at the close of
47
business on such record date shall be deemed to be Holders of Debt Securities
for the purpose of determining whether Holders of the requisite proportion of
Debt Securities of such series Outstanding have authorized or agreed or
consented to such action, and for that purpose the Debt Securities of such
series Outstanding shall be computed as of such record date.
ARTICLE VI
Remedies of the Trustee and Holders in Event of Default
Section 6.01 Events of Default. If any one or more of the following
shall have occurred and be continuing with respect to Debt Securities of any
series (each of the following, an "Event of Default"):
(a) default in the payment of any installment of interest upon
any Debt Securities of that series or any payment with respect to the related
Coupons, if any, as and when the same shall become due and payable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or premium, if
any, on any Debt Securities of that series as and when the same shall become due
and payable, whether at maturity, upon redemption, by declaration, upon required
repurchase or otherwise; or
(c) default in the payment of any sinking fund payment with
respect to any Debt Securities of that series as and when the same shall become
due and payable; or
(d) default in the performance, or breach, of any covenant of
the Company in this Indenture, including failure on the part of the Company to
comply with Article X, (other than a covenant or a default in whose performance
or whose breach is elsewhere in this Section specifically dealt with or which
has expressly been included in this Indenture solely for the benefit of a series
of Debt Securities other than that series), and continuance of such default or
breach for a period of 90 days after the date on which written notice specifying
such failure, stating that such notice is a "notice of default" hereunder, and
requiring the Company to remedy the same shall have been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in aggregate principal amount of the Debt
Securities of that series at the time Outstanding; or
(e) if an event of default as defined in any mortgage,
indenture, bonds, debentures, notes or instrument under which there may be
issued, or by which there may be secured or evidenced, any Indebtedness of the
Company for money borrowed, whether such Indebtedness now exists or shall
hereafter be created, shall happen and shall result in more than $50,000,000 (or
its equivalent in any other currency) in principal amount of such Indebtedness
becoming or being declared due and payable before the date on which it would
otherwise become due and payable, and that acceleration shall not be rescinded
or annulled, or that Indebtedness shall not have been discharged, within a
period of 10 days after there has been given, by registered or certified mail,
to the Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in principal amount of the Debt Securities of that series at the
time outstanding a written notice specifying the event of default and requiring
the Company
48
to cause the acceleration to be rescinded or annulled or to cause that
Indebtedness to be discharged and stating that such notice is a "notice of
default" hereunder; or
(f) the Company shall (i) voluntarily commence any proceeding
or file any petition seeking relief under Title 11 of the United States Code or
any other federal or state bankruptcy, insolvency or similar law, (ii) consent
to the institution of, or fail to controvert within the time and in the manner
prescribed by law, any such proceeding or the filing of any such petition, (iii)
apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator or similar official for the Company or for a substantial part of
its property, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general assignment
for the benefit of creditors, (vi) admit in writing its inability or fail
generally to pay its debts as they become due, (vii) take corporate action for
the purpose of effecting any of the foregoing, or (viii) take any comparable
action under any foreign laws relating to insolvency; or
(g) the entry of an order or decree by a court having
competent jurisdiction in the premises for (i) relief in respect of the Company
or a substantial part of any of its property under Title 11 of the United States
Code or any other federal or state bankruptcy, insolvency or similar law, (ii)
the appointment of a receiver, trustee, custodian, sequestrator or similar
official for the Company or for a substantial part of any of its property or
(iii) the winding-up or liquidation of the Company, and such order or decree
shall continue unstayed and in effect for 60 consecutive days; or any similar
relief is granted under any foreign laws and the order or decree stays in effect
for 60 consecutive days; or
(h) any other Event of Default provided with respect to Debt
Securities of that series;
then and in each and every case that an Event of Default described in clause
(a), (b), (c), (d), (e) or (h) with respect to Debt Securities of that series at
the time Outstanding occurs and is continuing, unless the principal of and
interest on all the Debt Securities of that series shall have already become due
and payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Debt Securities of that series then Outstanding
hereunder, by notice in writing to the Company (and to the Trustee if given by
Holders), may declare the principal of (or, if the Debt Securities of that
series are Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the terms of that series) and interest
on all the Debt Securities of that series to be due and payable immediately, and
upon any such declaration the same shall become and shall be immediately due and
payable, anything in this Indenture or in the Debt Securities or Coupons
appertaining thereto of that series contained to the contrary notwithstanding.
If an Event of Default described in clause (f) or (g) occurs, then and in each
and every such case, unless the principal of and interest on all the Debt
Securities shall have become due and payable, the principal of (or, if any Debt
Securities are Original Issue Discount Debt Securities, such portion of the
principal amount as may be specified in the terms thereto) and interest on all
the Debt Securities then Outstanding hereunder shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holders, anything in this Indenture or in the Debt Securities
contained to the contrary notwithstanding.
49
In case the Trustee or any Holder shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee or such Holder, then and in
every such case the parties hereto shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of
the parties hereto shall continue as though no such proceeding had been taken.
The Holders of a majority in principal amount of the Debt Securities of
a particular series by notice to the Trustee may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
already rendered and if all existing Events of Default have been cured or waived
except nonpayment of principal or interest that has become due solely because of
acceleration. Upon any such rescission, the parties hereto shall be restored
respectively to their several positions and rights hereunder, and all rights,
remedies and powers of the parties hereto shall continue as though no such
proceeding had been taken.
The foregoing Events of Default shall constitute Events of Default
whatever the reason for any such Event of Default and whether it is voluntary or
involuntary or is effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which with the giving of notice and the lapse of time would become an
Event of Default under clause (d), (e) or (h) indicating its status and what
action the Company is taking or proposes to take with respect thereto.
Section 6.02 Collection of Indebtedness by Trustee, etc. If an Event of
Default occurs and is continuing, the Trustee, in its own name and as trustee of
an express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and unpaid
or enforce the performance of any provision of the Debt Securities of the
affected series or this Indenture, and may prosecute any such action or
proceedings to judgment or final decree, and may enforce any such judgment or
final decree against the Company or any other obligor upon the Debt Securities,
and the Coupons, if any, appertaining thereto, of such series (and collect in
the manner provided by law out of the property of the Company or any other
obligor wherever situated upon the Debt Securities and Coupons of such series)
the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor upon the Debt Securities
and Coupons, if any, of any series under Title 11 of the United States Code or
any other federal or state bankruptcy, insolvency or similar law, or in case a
receiver, trustee or other similar official shall have been appointed for its
property, or in case of any other similar judicial proceedings relative to the
Company or any other obligor upon the Debt Securities of any series, its
creditors or its property, the Trustee, irrespective of whether the principal of
Debt Securities and Coupons, if any, of any series shall then be due and payable
as therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand pursuant to the provisions of this
Section 6.02, shall be entitled and empowered, by intervention in such
proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal, premium, if any, and interest (or, if
50
the Debt Securities of such series are Original Issue Discount Debt Securities,
such portion of the principal amount as may be specified in the terms of such
series) owing and unpaid in respect of the Debt Securities and Coupons of such
series, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities incurred, and all advances
made, by the Trustee except as a result of its negligence or bad faith) and of
the Holders thereof allowed in any such judicial proceedings relative to the
Company, or any other obligor upon the Debt Securities and Coupons of such
series, its creditors or its property, and to collect and receive any moneys or
other property payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of such Holders and of the Trustee
on their behalf, and any receiver, assignee or trustee in bankruptcy or
reorganization is hereby authorized by each of such Holders to make payments to
the Trustee, and, in the event that the Trustee shall consent to the making of
payments directly to such Holders, to pay to the Trustee such amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other reasonable expenses and liabilities
incurred, and all advances made, by the Trustee except as a result of its
negligence or bad faith.
All rights of action and of asserting claims under this Indenture, or
under any of the Debt Securities and the Coupons, if any, appertaining thereto,
of any series, may be enforced by the Trustee without the possession of any such
Debt Securities or Coupons, or the production thereof in any trial or other
proceedings relative thereto, and any such action or proceedings instituted by
the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment (except for any amounts payable to the Trustee pursuant
to Section 7.06) shall be for the ratable benefit of the Holders of all the Debt
Securities or Coupons in respect of which such action was taken.
In case of an Event of Default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
Section 6.03 Application of Moneys Collected by Trustee. Any moneys
collected by the Trustee pursuant to Section 6.02 with respect to Debt
Securities and Coupons, if any, of any series shall be applied in the order
following, at the date or dates fixed by the Trustee for the distribution of
such moneys, upon presentation of the several Debt Securities or Coupons of such
series in respect of which moneys have been collected, and the notation thereon
of the payment, if only partially paid, and upon surrender thereof if fully
paid:
FIRST: To the payment of all money due the Trustee pursuant to
Section 7.06;
SECOND: In case the principal of the Outstanding Debt
Securities in respect of which such moneys have been collected shall
not have become due, to the payment of interest on the Debt Securities
or Coupons of such series in the order of the maturity of
51
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the rate or Yield to Maturity (in the case
of Original Issue Discount Debt Securities) borne by the Debt
Securities or Coupons of such series, such payments to be made ratably
to the Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Outstanding Debt
Securities in respect of which such moneys have been collected shall
have become due, by declaration or otherwise, to the payment of the
whole amount then owing and unpaid upon the Debt Securities or Coupons
of such series for principal and premium, if any, and interest, with
interest on the overdue principal and premium, if any, and (to the
extent that such interest has been collected by the Trustee) upon
overdue installments of interest at the rate or Yield to Maturity (in
the case of Original Issue Discount Debt Securities) borne by the Debt
Securities or Coupons of such series; and, in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Debt Securities and Coupons of such series, then to the payment of such
principal and premium, if any, and interest, without preference or
priority of principal and premium, if any, over interest, or of
interest over principal and premium, if any, or of any installment of
interest over any other installment of interest, or of any Debt
Security or Coupon of such series over any Debt Security or Coupon of
such series, ratably to the aggregate of such principal and premium, if
any, and interest; and
FOURTH: The remainder, if any, shall be paid to the Company,
its successors or assigns, or to whomsoever may be lawfully entitled to
receive the same, or as a court of competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.03. At least 15 days before such record date,
the Company shall mail to each Holder and the Trustee a notice that states the
record date, the payment date and amount to be paid.
Section 6.04 Limitation on Suits by Holders. No Holder of any Debt
Security or Coupon of any series shall have any right by virtue or by availing
of any provision of this Indenture to institute any action or proceeding at law
or in equity or in bankruptcy or otherwise, upon or under or with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless such Holder previously shall have given to the
Trustee written notice of an Event of Default with respect to Debt Securities of
that same series and of the continuance thereof and unless the Holders of not
less than 25% in aggregate principal amount of the Outstanding Debt Securities
of that series shall have made written request upon the Trustee to institute
such action or proceedings in respect of such Event of Default in its own name
as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action or proceedings and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 6.06; it being
understood and intended, and being expressly covenanted by the Holder of every
Debt Security or Coupon with every other Holder and the Trustee, that no one or
more Holders shall have any right in any
52
manner whatever by virtue or by availing of any provision of this Indenture to
affect, disturb or prejudice the rights of any Holders, or to obtain or seek to
obtain priority over or preference to any other such Holder, or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all such Holders. For the protection and
enforcement of the provisions of this Section 6.04, each and every Holder and
the Trustee shall be entitled to such relief as can be given either at law or in
equity.
Notwithstanding any other provision in this Indenture, however, the
right of any Holder of any Debt Security or Coupon to receive payment of the
principal of, and premium, if any, and (subject to Section 2.12) interest on,
such Debt Security or Coupon, on or after the respective due dates expressed in
such Debt Security, and to institute suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of such Holder.
Section 6.05 Remedies Cumulative; Delay or Omission in Exercise of
Rights Not a Waiver of Default. All powers and remedies given by this Article VI
to the Trustee or to the Holders shall, to the extent permitted by law, be
deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the Holders, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder to exercise any right or power accruing upon any Default
occurring and continuing as aforesaid, shall impair any such right or power, or
shall be construed to be a waiver of any such Default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article VI or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Holders.
Section 6.06 Rights of Holders of Majority in Principal Amount of Debt
Securities to Direct Trustee and to Waive Default. The Holders of a majority in
aggregate principal amount of the Debt Securities of any series at the time
Outstanding shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee, with respect to the Debt Securities
of such series; provided, however, that such direction shall not be otherwise
than in accordance with law and the provisions of this Indenture, and that
subject to the provisions of Section 7.01, the Trustee shall have the right to
decline to follow any such direction if the Trustee being advised by counsel
shall determine that the action so directed may not lawfully be taken, or if the
Trustee shall by a responsible officer or officers determine that the action so
directed would involve it in personal liability or would be unjustly prejudicial
to Holders of Debt Securities of such series not taking part in such direction;
and provided, further, however, that nothing in this Indenture contained shall
impair the right of the Trustee to take any action deemed proper by the Trustee
and which is not inconsistent with such direction by such Holders. Prior to the
acceleration of the maturity of the Debt Securities of any series, as provided
in Section 6.01, the Holders of a majority in aggregate principal amount of the
Debt Securities of that series at the time Outstanding may on behalf of the
Holders of all the Debt Securities and any related Coupons of that series waive
any past Default or Event of Default and its consequences for that series
specified in the terms thereof as contemplated by Section 2.03, except (i) a
Default in the payment of the principal of, and premium, if any, or interest on,
any of the Debt Securities or in the payment of any related Coupon and (ii) a
Default in respect of a provision that under Section
53
9.02 cannot be amended without the consent of each Holder affected thereby. In
case of any such waiver, such Default shall cease to exist, any Event of Default
arising therefrom shall be deemed to have been cured for every purpose of this
Indenture, and the Company, the Trustee and the Holders of the Debt Securities
of that series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.
Section 6.07 Trustee to Give Notice of Defaults Known to It, but May
Withhold Such Notice in Certain Circumstances. The Trustee shall, within 90 days
after the occurrence of a Default known to it with respect to a series of Debt
Securities or Coupons, if any, give to the Holders thereof, in the manner
provided in Section 12.03, notice of all Defaults with respect to such series
known to the Trustee, unless such Defaults shall have been cured or waived
before the giving of such notice; provided, that, except in the case of Default
in the payment of the principal of, or premium, if any, or interest on, any of
the Debt Securities or Coupons of such series or in the making of any sinking
fund payment with respect to the Debt Securities of such series, the Trustee
shall be protected in withholding such notice if and so long as the board of
directors, the executive committee or a committee of directors or responsible
officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Holders thereof and provided further that, in
the case of any Default as described in Section 6.01(d)with respect to Debt
Securities of such series, no such notice to Holders of Debt securities of such
series shall be given until the 90th day after the date of the notice specified
in such Section shall have been given. Except with respect to a Default or an
Event of Default pursuant to Section 6.01(a), (b) or (c), the Trustee will not
be charged with knowledge of any Default or Event of Default unless written
notice thereof shall have been given to a responsible officer by the Company or
any Holder and such notice references the Debt Securities generally, the Company
or this Indenture.
Section 6.08 Requirement of an Undertaking To Pay Costs in Certain
Suits under the Indenture or Against the Trustee. All parties to this Indenture
agree, and each Holder of any Debt Security or Coupon by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in
any suit for the enforcement of any right or remedy under this Indenture, or in
any suit against the Trustee for any action taken or omitted by it as Trustee,
the filing by any party litigant in such suit of an undertaking to pay the costs
of such suit in the manner and to the extent provided in the Trust Indenture
Act, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit,
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section 6.08 shall not apply to
any suit instituted by the Trustee, to any suit instituted by any Holder, or
group of Holders, holding in the aggregate more than ten percent in principal
amount of the Outstanding Debt Securities of that series or to any suit
instituted by any Holder for the enforcement of the payment of the principal of,
or premium, if any, or interest on, any Debt Security or Coupon on or after the
due date for such payment expressed in such Debt Security or Coupon.
54
ARTICLE VII
Concerning the Trustee
Section 7.01 Certain Duties and Responsibilities. The Trustee, prior to
the occurrence of an Event of Default and after the curing or waiving of all
Events of Default which may have occurred, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture. In case an
Event of Default has occurred (which has not been cured or waived), the Trustee
shall exercise such of the rights and powers vested in it by this Indenture, and
use the same degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(a) this subsection shall not be construed to limit the effect
of the first paragraph of this Section 7.01;
(b) prior to the occurrence of an Event of Default with
respect to the Debt Securities of a series and after the curing or waiving of
all Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with
respect to Debt Securities and Coupons, if any, of any series shall be
determined solely by the express provisions of this Indenture, and the Trustee
shall not be liable except for the performance of such duties and obligations
with respect to such series as are specifically set forth in this Indenture, and
no implied covenants or obligations with respect to such series shall be read
into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture;
(c) the Trustee shall not be liable for an error of judgment
made in good faith by a responsible officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(d) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it with respect to Debt Securities of any series
in good faith in accordance with the direction of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Debt Securities of
that series relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to Debt Securities
of such series.
55
None of the provisions of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any personal financial liability
in the performance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if there shall be reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 7.02 Certain Rights of Trustee. Except as otherwise provided in
Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note or other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by a Company Order (unless
other evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Company;
(c) whenever in the administration of the Indenture, the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically provided) may, in the absence of bad faith on
its part, rely on an Officers' Certificate;
(d) the Trustee may consult with counsel or require an Opinion
of Counsel, and the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any action taken or
suffered or omitted by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders of Debt Securities or Coupons of any series
pursuant to the provisions of this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby;
(f) the Trustee shall not be liable for any action taken or
omitted by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;
(g) prior to the occurrence of an Event of Default and after
the curing of all Events of Default which may have occurred, the Trustee shall
not be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, approval, bond, debenture, note,
56
coupon, other evidence of Indebtedness, or other paper or document, unless
requested in writing to do so by the Holders of a majority in aggregate
principal amount of the then Outstanding Debt Securities of a series affected by
such matter; provided, however, that if the payment within a reasonable time to
the Trustee of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is not, in the opinion of the Trustee,
reasonably assured to the Trustee by the security afforded to it by the terms of
this Indenture, the Trustee may require reasonable indemnity against such costs,
expenses or liabilities as a condition to so proceeding. The reasonable expense
of every such investigation shall be paid by the Company or, if paid by the
Trustee, shall be repaid by the Company upon demand;
(h) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed by it with due care
hereunder;
(i) if any property other than cash shall at any time be
subject to a Lien in favor of the Holders, the Trustee, if and to the extent
authorized by a receivership or bankruptcy court of competent jurisdiction or by
the supplemental instrument subjecting such property to such lien, shall be
entitled to make advances for the purpose of preserving such property or of
discharging tax Liens or other prior Liens or encumbrances thereon; and
(j) for all purposes under this Indenture, the Trustee shall
not be deemed to have notice or knowledge of any Default or Event of Default
(other than under Section 6.01(a), (b) or (c)) unless written notice of such
Default or Event of Default is received by a responsible officer from the
Company or a Holder and such notice references the Debt Securities generally,
the Company or this Indenture.
Section 7.03 Trustee Not Liable for Recitals in Indenture or in Debt
Securities. The recitals contained herein, in the Debt Securities (except the
Trustee's certificate of authentication) and in any Coupons shall be taken as
the statements of the Company, and the Trustee assumes no responsibility for the
correctness of the same. The Trustee makes no representations as to the validity
or sufficiency of this Indenture or of the Debt Securities or Coupons, if any,
of any series or any prospectus related to the Debt Securities of any series.
The Trustee shall not be accountable for the use or application by the Company
of any of the Debt Securities or of the proceeds thereof.
Section 7.04 Trustee, Paying Agent or Registrar May Own Debt
Securities. The Trustee or any paying agent or Registrar, in its individual or
any other capacity, may become the owner or pledgee of Debt Securities or
Coupons and subject to the provisions of the Trust Indenture Act relating to
conflicts of interest and preferential claims may otherwise deal with the
Company with the same rights it would have if it were not Trustee, paying agent
or Registrar.
Section 7.05 Moneys Received by Trustee to Be Held in Trust. Subject to
the provisions of Section 11.05, all moneys received by the Trustee shall, until
used or applied as herein provided, be held in trust for the purposes for which
they were received, but need not be segregated from other funds except to the
extent required by law. The Trustee shall be under no liability for interest on
any moneys received by it hereunder. So long as no Event of Default
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shall have and be continuing, all interest allowed on any such moneys shall be
paid from time to time to the Company upon a Company Order.
Section 7.06 Compensation and Reimbursement. The Company covenants and
agrees to pay in Dollars to the Trustee from time to time, and the Trustee shall
be entitled to, reasonable compensation for all services rendered by it
hereunder (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and, except as otherwise
expressly provided herein, the Company will pay or reimburse in Dollars the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents, attorneys and counsel and of all Persons not
regularly in its employ and including all costs, expenses and losses associated
with the payment of principal of, premium, if any, and interest on any Debt
Securities denominated in a Foreign Currency) except any such expense,
disbursement or advances as may arise from its negligence or bad faith. The
Company also covenants to indemnify in Dollars the Trustee for, and to hold it
harmless against, any loss, liability or expense incurred without negligence,
willful misconduct or bad faith on the part of the Trustee, arising out of or in
connection with the acceptance or administration of this trust or trusts
hereunder, including the reasonable costs and expenses of defending itself
against any claim of liability in connection with the exercise or performance of
any of its powers or duties hereunder. The obligations of the Company under this
Section 7.06 to compensate and indemnify the Trustee and to pay or reimburse the
Trustee for expenses, disbursements and advances shall constitute additional
Indebtedness hereunder and shall survive the satisfaction and discharge of this
Indenture. Such additional Indebtedness shall be secured by a Lien prior to that
of the Debt Securities and Coupons, if any, upon all property and funds held or
collected by the Trustee, as such, except funds held in trust for the payment of
principal of, and premium, if any, or interest on, particular Debt Securities
and Coupons.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(f) or (g) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency, reorganization or other similar
law.
Section 7.07 Right of Trustee to Rely on an Officers' Certificate Where
No Other Evidence Specifically Prescribed. Except as otherwise provided in
Section 7.01, whenever in the administration of the provisions of this Indenture
the Trustee shall deem it necessary or desirable that a matter be proved or
established prior to taking or suffering or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the
Trustee, be deemed to be conclusively proved and established by an Officers'
Certificate delivered to the Trustee and such certificate, in the absence of
negligence or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the provisions of
this Indenture upon the faith thereof.
Section 7.08 Separate Trustee; Replacement of Trustee. The Company may,
but need not, appoint a separate Trustee for any one or more series of Debt
Securities. The Trustee may resign with respect to one or more or all series of
Debt Securities at any time by giving
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notice to the Company. The Holders of a majority in principal amount of the Debt
Securities of a particular series may remove the Trustee for such series and
only such series by so notifying the Trustee and may appoint a successor
Trustee. The Company shall remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or other public officer takes charge of the
Trustee or its property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders of
a majority in principal amount of the Debt Securities of a particular series and
such Holders do not reasonably promptly appoint a successor Trustee, or if a
vacancy exists in the office of Trustee for any reason (the Trustee in such
event being referred to herein as the retiring Trustee), the Company shall
promptly appoint a successor Trustee with respect to the affected series of Debt
Securities. No resignation or removal of the Trustee and no appointment of a
successor Trustee shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable requirements of this
Section 7.08.
If no successor Trustee with respect to the Debt Securities of any
series shall have been so appointed by the Company or the Holders and accepted
in the manner required by this Section 7.08, any Holder who has been a bona fide
Holder of a Debt Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the Debt
Securities of such series.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the Lien provided for
in Section 7.06. The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Debt Securities of any series and
each appointment of a successor Trustee with respect to the Debt Securities of
any series to all Holders of Debt Securities of such series in the manner
provided in Section 12.03. Each notice shall include the name of the successor
Trustee with respect to the Debt Securities of such series and the address of
the corporate trust office of such successor Trustee.
If a successor Trustee does not take office within 60 days after the
retiring Trustee gives notice of resignation or is removed, the retiring Trustee
or the Holders of 25% in principal amount of the Debt Securities of any
applicable series may petition any court of competent jurisdiction for the
appointment of a successor Trustee for the Debt Securities of such series.
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If the Trustee fails to comply with Section 7.10, any Holder of Debt
Securities of any applicable series may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for the Debt Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this Section
7.08, the Company's obligations under Section 7.06 shall continue for the
benefit of the retiring Trustee.
In the case of the appointment hereunder of a separate or successor
trustee with respect to the Debt Securities of one or more (but not all) series,
the Company, any retiring Trustee and each successor or separate Trustee with
respect to the Debt Securities of any applicable series shall execute and
deliver an indenture supplemental hereto (1) which shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of any retiring Trustee with respect to the Debt
Securities of any series as to which any such retiring Trustee is not retiring
shall continue to be vested in such retiring Trustee and (2) that shall add to
or change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such separate, retiring or successor Trustee shall be
Trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee.
Section 7.09 Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Debt Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Debt Securities so
authenticated; and in case at that time any of the Debt Securities shall not
have been authenticated, any successor to the Trustee may authenticate such Debt
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Debt Securities or in this Indenture
provided that the certificate of the Trustee shall have.
Section 7.10 Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of Section 310(a) of the Trust Indenture Act. The
Trustee shall have a combined capital and surplus of at least $50,000,000 as set
forth in its most recent published annual report of condition. No obligor upon
the Debt Securities or Coupons, if any, of a particular series or Person
directly or indirectly controlling, controlled by or under common control with
such obligor shall serve as Trustee upon the Debt Securities and Coupons of such
series. The Trustee shall comply with Section 310(b) of the Trust Indenture Act;
provided, however, that there shall be excluded from the operation of Section
310(b)(1) of the Trust Indenture Act this Indenture or any indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding if the
requirements for such exclusion set forth in Section 310(b)(1) of the Trust
Indenture Act are met.
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Section 7.11 Preferential Collection of Claims Against Company. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
Section 7.12 Compliance with Tax Laws. The Trustee hereby agrees to
comply with all United States federal income tax information reporting and
withholding requirements applicable to it with respect to payments of premium
(if any) and interest on the Debt Securities, whether acting as Trustee,
Registrar, paying agent or otherwise with respect to the Debt Securities.
ARTICLE VIII
Concerning the Holders
Section 8.01 Evidence of Action by Holders. Whenever in this Indenture
it is provided that the Holders of a specified percentage in aggregate principal
amount of the Debt Securities of any or all series may take action (including
the making of any demand or request, the giving of any direction, notice,
consent or waiver or the taking of any other action) the fact that at the time
of taking any such action the Holders of such specified percentage have joined
therein may be evidenced (a) by any instrument or any number of instruments of
similar tenor executed by Holders in Person or by agent or proxy appointed in
writing, (b) by the record of the Holders voting in favor thereof at any meeting
of Holders duly called and held in accordance with the provisions of Section
5.02 or (c) by a combination of such instrument or instruments and any such
record of such a meeting of Holders.
Section 8.02 Proof of Execution of Instruments and of Holding of Debt
Securities. Subject to the provisions of Section 7.01, Section 7.02 and Section
12.11, proof of the execution of any instrument by a Holder or his agent or
proxy shall be sufficient if made in accordance with such reasonable rules and
regulations as may be prescribed by the Trustee or in such manner as shall be
satisfactory to the Trustee.
The ownership of Registered Securities of any series shall be proved by
the Debt Security Register or by a certificate of the Registrar for such series.
The ownership of Bearer Securities shall be proved by production of
such Bearer Securities or by a certificate executed by any bank or trust
company, which certificate shall be dated and shall state on the date thereof a
Bearer Security bearing a specified identifying number or other mark was
deposited with or exhibited to the Person executing such certificate by the
Person named in such certificate, or by any other proof of possession reasonably
satisfactory to the Trustee. The holding by the Person named in any such
certificate of any Bearer Security specified therein shall be presumed to
continue for a period of one year unless at the time of determination of such
holding (1) another certificate bearing a later date issued in respect of the
same Bearer Security shall be produced, (2) such Bearer Security shall be
produced by some other Person, (3) such Bearer Security shall have been
registered on the Debt Security Register, if, pursuant to Section 2.03, such
Bearer Security can be so registered, or (4) such Bearer Security shall have
been canceled or paid.
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The Trustee may require such additional proof of any matter referred to
in this Section 8.02 as it shall deem necessary.
Section 8.03 Who May Be Deemed Owner of Debt Securities. Prior to due
presentment for registration of transfer of any Registered Security, the
Company, the Trustee, any paying agent and any Registrar may deem and treat the
Person in whose name any Registered Security shall be registered upon the books
of the Company as the absolute owner of such Registered Security (whether or not
such Registered Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the principal of and premium, if any, and (subject to Section
2.03) interest on such Registered Security and for all other purposes, and
neither the Company nor the Trustee nor any paying agent nor any Registrar shall
be affected by any notice to the contrary; and all such payments so made to any
such Holder for the time being, or upon his order, shall be valid and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Registered Security.
The Company, the Trustee and any paying agent may deem and treat the
Holder of any Bearer Security or Coupon as the absolute owner of such Bearer
Security or Coupon (whether or not such Debt Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of and premium,
if any, and (subject to Section 2.03) interest on such Bearer Security or Coupon
and for all other purposes, and neither the Company nor the Trustee nor any
paying agent shall be affected by any notice to the contrary; and all such
payments so made to any such Holder for the time being, or upon his order, shall
be valid and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Bearer Security or
Coupon.
None of the Company, the Trustee, any paying agent or the Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
Section 8.04 Instruments Executed by Holders Bind Future Holders. At
any time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Debt Securities of any series specified in
this Indenture in connection with such action and subject to the following
paragraph, any Holder of a Debt Security which is shown by the evidence to be
included in the Debt Securities the Holders of which have consented to such
action may, by filing written notice with the Trustee at its corporate trust
office and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Holder. Except as aforesaid, any such action taken by
the Holder of any Debt Security shall be conclusive and binding upon such Holder
and upon all future Holders and owners of such Debt Security and all past,
present and future Holders of Coupons, if any, appertaining thereto, and of any
Debt Security issued upon transfer thereof or in exchange or substitution
therefor, irrespective of whether or not any notation in regard thereto is made
upon such Debt Security or such other Debt Securities or Coupons. Any action
taken by the Holders of the percentage in aggregate principal amount of the Debt
Securities of any series specified in this Indenture in connection
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with such action shall be conclusively binding upon the Company, the Trustee and
the Holders of all the Securities and Coupons of such series.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders of Registered Securities entitled to give
their consent or take any other action required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders of Registered
Securities at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders of Registered Securities after such record date. No such
consent shall be valid or effective for more than 120 days after such record
date unless the consent of the Holders of the percentage in aggregate principal
amount of the Debt Securities of such series specified in this Indenture shall
have been received within such 120-day period.
ARTICLE IX
Supplemental Indentures
Section 9.01 Purposes for Which Supplemental Indenture May Be Entered
into Without Consent of Holders. The Company and the Trustee may from time to
time and at any time, without the consent of Holders, enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof) for one or
more of the following purposes:
(a) to evidence the succession pursuant to Article X of
another Person to the Company, or successive successions, and the assumption by
the Successor Company (as defined in Section 10.01) of the covenants, agreements
and obligations of the Company in this Indenture and in the Debt Securities;
(b) to surrender any right or power herein conferred upon the
Company, to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the Holders of all
or any series of Debt Securities and the Coupons, if any, appertaining thereto
(and if such covenants are to be for the benefit of less than all series of Debt
Securities, stating that such covenants are expressly being included solely for
the benefit of such series), and to make the occurrence, or the occurrence and
continuance, of a Default in any of such additional covenants, restrictions,
conditions or provisions a Default or an Event of Default permitting the
enforcement of all or any of the several remedies provided in this Indenture;
provided, that in respect of any such additional covenant, restriction,
condition or provision such supplemental indenture may provide for a particular
period of grace after Default (which period may be shorter or longer than that
allowed in the case of other Defaults) or may provide for an immediate
enforcement upon such Default or may limit the right of the Holders of a
majority in aggregate principal amount of any or all series of Debt Securities
to waive such default;
(c) to cure any ambiguity or to correct or supplement any
provision contained herein, in any supplemental indenture or in any Debt
Security of any series that may be defective or inconsistent with any other
provision contained herein, in any supplemental indenture or in the
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Debt Securities of such series; to convey, transfer, assign, mortgage or pledge
any property to or with the Trustee, or to make such other provisions in regard
to matters or questions arising under this Indenture, provided that any such
action shall not adversely affect the interests of any Holders of Debt
Securities of any series;
(d) to modify or amend this Indenture in such a manner as to
permit the qualification of this Indenture or any Indenture supplemental hereto
under the Trust Indenture Act as then in effect, except that nothing herein
contained shall permit or authorize the inclusion in any Indenture supplemental
hereto of the provisions referred to in Section 316(a)(2) of the Trust Indenture
Act;
(e) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registerable as to principal,
to change or eliminate any restrictions on the payment of principal of, or
premium, if any, on, Registered Securities or of principal of, or premium, if
any, or interest on, Bearer Securities or to permit Registered Securities to be
exchanged for Bearer Securities; provided, that any such action shall not
adversely affect the interests of the Holders of Debt Securities or any Coupons
of any series in any material respect or permit or facilitate the issuance of
Debt Securities of any series in uncertificated form;
(f) to comply with Article X;
(g) to add Guarantees with respect to the Debt Securities or
to secure the Debt Securities;
(h) to make any change that does not adversely affect the
rights of any Holder;
to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Debt Securities; provided,
however, that any such addition, change or elimination (i) shall neither (A)
apply to any Debt Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor (B)
modify the rights of the Holder of any such Debt Security with respect to such
provision or (ii) shall become effective only when there is no such Debt
Security Outstanding;
(i) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Debt Securities of one or
more series and to add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; and
(j) to establish the form or terms of Debt Securities and
Coupons, if any, of any series as permitted by Section 2.01 and Section 2.03.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
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Any supplemental indenture authorized by the provisions of this Section
9.01 may be executed by the Company and the Trustee without the consent of the
Holders of any of the Debt Securities or Coupons, if any, appertaining thereto
at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
After an amendment under this Section 9.01 becomes effective, the
Company shall mail to Holders of Debt Securities of each series affected thereby
a notice briefly describing such amendment. The failure to give such notice to
all such Holders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section 9.01.
Section 9.02 Modification of Indenture with Consent of Holders of Debt
Securities. Without notice to any Holder but with the consent (evidenced as
provided in Section 8.01) of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Debt Securities of each series
affected by such supplemental indenture, the Company, when authorized by a
resolution of the Board of Directors, and the Trustee may from time to time and
at any time enter into an Indenture or Indentures supplemental hereto (which
shall conform to the provisions of the Trust Indenture Act as in force at the
date of execution thereof) for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
of any supplemental indenture or of modifying in any manner the rights of the
Holders of the Debt Securities of such series; provided, that no such
supplemental indenture, without the consent of the Holders of each Debt Security
so affected, shall (i) reduce the percentage in principal amount of Debt
Securities of any series whose Holders must consent to an amendment; (ii) reduce
the rate of or extend the time for payment of interest on any Debt Security or
Coupon or reduce the amount of any payment to be made with respect to any
Coupon; (iii) reduce the principal of or change the Stated Maturity of the
principal of, or any installment of principal of or interest on, any Debt
Security or reduce the amount of principal of any Original Issue Discount
Security that would be due and payable upon declaration of acceleration of
maturity; (iv) reduce the premium payable upon the redemption of any Debt
Security or change the time at which any Debt Security may or shall be redeemed
in accordance with Article III; (v) make any Debt Security payable in Currency
other than that stated in the Debt Security; (vi) release any security that may
have been granted in respect of the Debt Securities; (vii) make any change in
Section 6.06 or the second sentence of this Section 9.02; (viii) change any
obligation of the Company to pay additional interest pursuant to Section 4.06;
(ix) limit the obligation of the Company to maintain a paying agency outside the
United States for payment on Bearer Securities as provided in Section 4.02 or
limit the obligation of the Company to redeem an Affected Security as provided
in Section 3.02(b); (x) change any Place of Payment where any Debt Security or
any premium or interest thereon is payable; (xi) impair the right to institute
suit for the enforcement of any payment on or after the Stated Maturity of any
Debt Security (or in the case of redemption, on or after the date fixed for
redemption); or (xii) modify any of the provisions of this Section, Section 4.09
or Section 6.06, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Debt Security affected thereby,
provided, however, that this Section 9.02 shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section, Section 4.09, or the deletion of this
proviso, in accordance with the requirements of Section 7.08 and Section
9.01(a).
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A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has been expressly included solely for
the benefit of one or more particular series of Debt Securities and Coupons, if
any, or which modifies the rights of the Holders of Debt Securities and Coupons
of such series with respect to such covenant or other provision, shall be deemed
not to affect the rights under this Indenture of the Holders of Debt Securities
and Coupons, if any, of any other series.
Upon the request of the Company, accompanied by a copy of a resolution
of the Board of Directors authorizing the execution of any such supplemental
indenture, and upon the filing with the Trustee of evidence of the consent of
Holders as aforesaid, the Trustee shall join with the Company in the execution
of such supplemental indenture unless such supplemental indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion but shall not be obligated to enter
into such supplemental indenture. The Trustee shall be entitled to receive, and
shall be fully protected in relying upon (subject to Section 7.01), an Officers'
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to Holders of Debt Securities of each series affected thereby
a notice briefly describing such amendment. The failure to give such notice to
all such Holders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section 9.02.
Section 9.03 Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture pursuant to the provisions of this Article IX, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
Section 9.04 Debt Securities May Bear Notation of Changes by
Supplemental Indentures. Debt Securities and Coupons, if any, of any series
authenticated and delivered after the execution of any supplemental indenture
pursuant to the provisions of this Article IX may, and shall if required by the
Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. New Debt Securities and Coupons of
any series so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the Debt Securities
and Coupons of such series then Outstanding. Failure to make the appropriate
notation or to issue a new Debt Security or Coupon of such series shall not
affect the validity of such amendment.
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Section 9.05 Payment for Consent. Neither the Company nor any Affiliate
of the Company shall, directly or indirectly, 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 Debt Securities or Coupons, if any,
appertaining thereto unless such consideration is offered to be paid to all
Holders that so consent, waive or agree to amend in the time frame set forth in
solicitation documents relating to such consent, waiver or agreement.
ARTICLE X
Consolidation, Merger, Sale or Conveyance
Section 10.01 Consolidations and Mergers of the Company. The Company
shall not consolidate with, or sell or convey or lease all or substantially all
of its assets to, or merge with or into any other Person, unless (i) either (a)
the Company shall be the continuing corporation in the case of a merger or (b)
the resulting, surviving or transferee Person if other than the Company (the
"Successor Company") shall be a corporation organized and existing under the
laws of the United States, any state thereof or the District of Columbia and the
Successor Company shall expressly assume, by an Indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Debt Securities and Coupons, if any,
according to their tenor, and this Indenture; (ii) immediately after giving
effect to such transaction, no Default or Event of Default would occur or be
continuing; (iii) the Successor Company waives any right to redeem any Bearer
Security under circumstances in which the Successor Company would be entitled to
redeem such Bearer Security but the Company would not have been so entitled to
redeem if the consolidation, merger, conveyance, transfer or lease had not
occurred; and (iv) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger or transfer and such supplemental indenture (if any) comply with this
Indenture.
Section 10.02 Rights and Duties of Successor Corporation. In case of
any consolidation or merger, or conveyance or sale of the assets of the Company
as an entirety or substantially as an entirety in accordance with Section 10.01,
the Successor Company shall succeed to and be substituted for the Company, with
the same effect as if it had been named herein as the party of the first part,
and the predecessor corporation shall be relieved of any further obligation
under the Indenture and the Securities. The Successor Company thereupon may
cause to be signed, and may issue either in its own name or in the name of the
Company, any or all the Debt Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of the Successor Company, instead of the Company, and subject to
all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Debt Securities and Coupons, if
any, appertaining thereto, which previously shall have been signed and delivered
by the officers of the Company to the Trustee for authentication, and any Debt
Securities and Coupons, if any, appertaining thereto, which the Successor
Company thereafter shall cause to be signed and delivered to the Trustee for
that purpose. All the Debt Securities and Coupons, if any, appertaining thereto
so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Debt Securities and Coupons, if any, appertaining thereto
theretofore or
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thereafter issued in accordance with the terms of this Indenture as though all
such Debt Securities and Coupons had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the Debt
Securities and Coupons, if any, appertaining thereto thereafter to be issued as
may be appropriate.
ARTICLE XI
Satisfaction and Discharge of Indenture; Defeasance;
Unclaimed Moneys
Section 11.01 Applicability of Article. If, pursuant to Section 2.03,
provision is made for the defeasance of Debt Securities of a series and if the
Debt Securities of such series are Registered Securities and denominated and
payable only in Dollars (except as provided pursuant to Section 2.03), then the
provisions of this Article XI relating to defeasance of Debt Securities shall be
applicable except as otherwise specified pursuant to Section 2.03 for Debt
Securities of such series. Defeasance provisions, if any, for Debt Securities
denominated in a Foreign Currency or for Bearer Securities may be specified
pursuant to Section 2.03.
Section 11.02 Satisfaction and Discharge of Indenture; Defeasance. (a)
If at any time (i) the Company shall have delivered to the Trustee for
cancellation all Debt Securities of any series theretofore authenticated and
delivered (other than (1) Coupons appertaining to Bearer Securities of such
series called for redemption and maturing after the relevant redemption date,
surrender of which has been waived, (2) any Debt Securities and Coupons of such
series which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.09 and (3) Debt Securities and Coupons
for whose payment money has theretofore been deposited in trust and thereafter
repaid to the Company as provided in Section 11.05) or (ii) all Debt Securities
and the Coupons, if any, of such series not theretofore delivered to the Trustee
for cancellation shall have become due and payable, whether by redemption or at
Stated Maturity or otherwise, and the Company shall deposit with the Trustee as
trust funds the entire amount in the Currency in which such Debt Securities are
denominated with respect to Bearer Securities or in Dollars with respect to
Registered Securities (in each case except as otherwise provided pursuant to
Section 2.03) sufficient to pay at maturity or upon redemption all Debt
Securities of such series not theretofore delivered to the Trustee for
cancellation, including principal and premium, if any, and interest due or to
become due on such date of maturity or redemption date, as the case may be, and
if in either case the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then this Indenture shall cease to be of
further effect (except as to any surviving rights of registration of transfer or
exchange of such Debt Securities herein expressly provided for and rights to
receive payments of principal of, and premium, if any, and interest on, such
Debt Securities and any right to receive additional interest as provided in
Section 4.06 and rights of the Trustee under Section 7.06) with respect to the
Debt Securities of such series, and the Trustee, on demand of the Company
accompanied by an Officers' Certificate and an Opinion of Counsel and at the
cost and expense of the Company, shall execute proper instruments acknowledging
satisfaction of and discharging this Indenture.
(b) Subject to Sections 11.02(c), 11.03 and 11.07, the Company
at any time may terminate, with respect to Debt Securities of a particular
series, (i) all its obligations under
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the Debt Securities of such series and this Indenture with respect to the Debt
Securities of such series ("legal defeasance option") or (ii) its obligations
with respect to the Debt Securities of such series under Section 4.07 and
Section 4.08 and clause (iii) of Section 10.01 and the related operation of
Section 6.01(d) and the operation of Section 6.01(d) and Section 6.01(h)
("covenant defeasance option"). The Company may exercise its legal defeasance
option notwithstanding its prior exercise of its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the
Debt Securities of the defeased series may not be accelerated because of an
Event of Default. If the Company exercises its covenant defeasance option,
payment of the Debt Securities of the defeased series may not be accelerated
because of an Event of Default specified in Sections 6.01(c), (d) and (h)
(except to the extent covenants or agreements referenced in such Sections remain
applicable).
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b) above, the Company's
obligations in Sections 2.07, 2.09, 4.02, 4.04, 5.01, 7.06, 7.10, 11.05, 11.06
and 11.07 shall survive until the Debt Securities of the defeased series have
been paid in full. Thereafter, the Company's obligations in Sections 7.06, 11.05
and 11.06 shall survive.
Section 11.03 Conditions of Defeasance. The Company may exercise its
legal defeasance option or its covenant defeasance option with respect to Debt
Securities of a particular series only if:
(a) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations for the payment of principal of, and
premium, if any, and interest on, the Debt Securities of such series to maturity
or redemption, as the case may be;
(b) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their opinion
that the payments of principal and interest when due and without reinvestment on
the deposited U.S. Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts as will be
sufficient to pay the principal, premium and interest when due on all the Debt
Securities of such series to maturity or redemption, as the case may be;
(c) 123 days pass after the deposit is made and during the
123-day period no Default specified in Section 6.01(f) or (g) with respect to
the Company occurs which is continuing at the end of the period;
(d) no Default has occurred and is continuing on the date of
such deposit and after giving effect thereto;
(e) the deposit does not constitute a default under any other
agreement binding on the Company;
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(f) the Company delivers to the Trustee an Opinion of Counsel
to the effect that the trust resulting from the deposit does not constitute, or
is qualified as, a regulated investment company under the Investment Company Act
of 1940;
(g) in the event of the legal defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from the Internal Revenue Service a ruling, or (ii) since
the date of this Indenture there has been a change in the applicable federal
income tax law, in either case of the effect that, and based thereon such
Opinion of Counsel shall confirm that, the Holders of Debt Securities of such
series will not recognize income, gain or loss for federal income tax purposes
as a result of such defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred;
(h) in the event of the covenant defeasance option, the
Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of Debt Securities of such series will not recognize income,
gain or loss for federal income tax purposes as a result of such covenant
defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such covenant
defeasance had not occurred;
(i) the Company shall have delivered to the Trustee an
Officers' Certificate to the effect that the Debt Securities of such series, if
then listed on any securities exchange, will not be delisted as a result of such
deposit.
(j) such Defeasance or Covenant Defeasance shall not cause the
Trustee to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of such Act); and
(k) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance and discharge of the Debt Securities of such series
as contemplated by this Article XI have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Debt Securities of such series
at a future date in accordance with Article III.
Section 11.04 Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to this
Article XI. It shall apply the deposited money and the money from U.S.
Government Obligations through any paying agent and in accordance with this
Indenture to the payment of principal of, and premium, if any, and interest on,
the Debt Securities and Coupons, if any, of the defeased series.
Section 11.05 Repayment to Company. The Trustee and any paying agent
shall promptly turn over to the Company upon request any excess money or
securities held by them at any time.
Subject to any applicable abandoned property law, the Trustee and any
paying agent shall pay to the Company upon request any money held by them for
the payment of principal,
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premium or interest that remains unclaimed for two years, and, thereafter,
Holders entitled to such money must look to the Company for payment as general
creditors.
Section 11.06 Indemnity for U.S. Government Obligations. The Company
shall pay and shall indemnify the Trustee and the Holders against any tax, fee
or other change imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
Section 11.07 Reinstatement. If the Trustee or any paying agent is
unable to apply any money or U.S. Government Obligations in accordance with this
Article XI by reason of any legal proceeding or by reason of any order or
judgment of any court or government authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Debt Securities of the defeased series shall be revived and
reinstated as though no deposit had occurred pursuant to this Article XI until
such time as the Trustee or any paying agent is permitted to apply all such
money or U.S. Government Obligations in accordance with this Article XI.
ARTICLE XII
Miscellaneous Provisions
Section 12.01 Successors and Assigns of Company Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Company or the Trustee shall bind its successors and
assigns, whether so expressed or not.
Section 12.02 Acts of Board, Committee or Officer of Successor Company
Valid. Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any Successor Company.
Section 12.03 Required Notices or Demands. Except as otherwise
expressly provided in this Indenture, any notice or demand which by any
provision of this Indenture is required or permitted to be given or served by
the Trustee or by the Holders to or on the Company may be given or served by
being deposited postage prepaid in a post office letter box in the United States
addressed (until another address is filed by the Company with the Trustee) as
follows: Pioneer Natural Resources Company, 5205 N. O'Connor Blvd., Suite 1400,
Irving, Texas 75039, Attention: Chief Financial Officer. Except as otherwise
expressly provided in this Indenture, any notice, direction, request or demand
by the Company or by any Holder to or upon the Trustee may be given or made, for
all purposes, by being deposited postage prepaid in a post office letter box in
the United States addressed to the corporate trust office of the Trustee
initially at [ ], Attention: [ ]. The Company or the Trustee by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
Any notice required or permitted to a Registered Holder by the Company
or the Trustee pursuant to the provisions of this Indenture shall be deemed to
be properly mailed by being deposited postage prepaid in a post office letter
box in the United States addressed to such
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Holder at the address of such Holder as shown on the Debt Security Register. Any
report pursuant to Section 313 of the Trust Indenture Act shall be transmitted
in compliance with subsection (c) therein.
Any notice required or permitted to a Bearer Holder by the Company or
the Trustee pursuant to this Indenture shall be deemed to be properly given if
published on two separate business days in an Authorized Newspaper or Newspapers
in such Place or Places of Payment specified pursuant to Section 2.03, the first
such publication to be not earlier than the earliest date and not later than two
business days prior to the latest date prescribed for the giving of such notice.
Notwithstanding the foregoing, any notice to Holders of Floating Rate Debt
Securities regarding the determination of a periodic rate of interest, if such
notice is required pursuant to Section 2.03, shall be sufficiently given if
given in the manner specified pursuant to Section 2.03.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, then such
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose hereunder.
In the event of suspension of publication of any Authorized Newspaper
or by reason of any other cause it shall be impracticable to give notice by
publication, then such notification as shall be given with the approval of the
Trustee shall constitute sufficient notice for every purpose hereunder.
Failure to mail a notice or communication to a Holder or any defect in
it or any defect in any notice by publication as to a Holder shall not affect
the sufficiency of such notice with respect to other Holders. If a notice or
communication is mailed or published in the manner provided above, it is
conclusively presumed duly given.
Section 12.04 Indenture and Debt Securities to Be Construed in
Accordance with the Laws of the State of New York. This Indenture, each Debt
Security and each Coupon shall be deemed to be New York contracts, and for all
purposes shall be construed in accordance with the laws of said state (without
reference to principles of conflicts of law).
Section 12.05 Officers' Certificate and Opinion of Counsel to Be
Furnished upon Application or Demand by the Company. Upon any application or
demand by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (a) a statement that the Person
making such certificate or opinion has read such covenant or condition, (b) a
brief statement as to the nature and scope of the examination or investigation
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upon which the statements or opinions contained in such certificate or opinion
are based, (c) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 12.06 Payments Due on Legal Holidays. In any case where the
date of maturity of interest on or principal of and premium, if any, on the Debt
Securities of a series or the date fixed for redemption or repayment of any Debt
Security or the making of any sinking fund payment shall not be a business day
at any Place of Payment for the Debt Securities of such series, then payment of
interest or principal and premium, if any, or the making of such sinking fund
payment need not be made on such date at such Place of Payment, but may be made
on the next succeeding business day at such Place of Payment with the same force
and effect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date. If a record date is
not a business day, the record date shall not be affected.
Section 12.07 Provisions Required by Trust Indenture Act to Control. If
and to the extent that any provision of this Indenture limits, qualifies or
conflicts with another provision included in this Indenture which is required to
be included in this Indenture by any of Sections 310 to 318, inclusive, of the
Trust Indenture Act, such required provision shall control.
Section 12.08 Computation of Interest on Debt Securities. Interest, if
any, on the Debt Securities shall be computed on the basis of a 360-day year of
twelve 30-day months, except as may otherwise be provided pursuant to Section
2.03.
Section 12.09 Rules by Trustee, Paying Agent and Registrar. The Trustee
may make reasonable rules for action by or a meeting of Holders. The Registrar
and any paying agent may make reasonable rules for their functions.
Section 12.10 No Recourse Against Others. An incorporator or any past,
present or future director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Debt Securities, the Coupons or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Debt Security or Coupon, each Holder shall waive and release all such liability.
The waiver and release shall be part of the consideration for the issue of the
Debt Securities and Coupons.
Section 12.11 Severability. In case any provision in this Indenture,
the Debt Securities or the Coupons shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 12.12 Effect of Headings. The article and section headings
herein and in the Table of Contents are for convenience only and shall not
affect the construction hereof.
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Section 12.13 Indenture May Be Executed in Counterparts. This Indenture
may be executed in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one and the same
instrument.
The Trustee hereby accepts the trusts in this Indenture upon the terms
and conditions hereinafter set forth.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly signed as of the date first written above.
PIONEER NATURAL RESOURCES COMPANY
By:
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Name:
-----------------------------------------
Title:
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, as Trustee
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By:
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Name:
-----------------------------------------
Title:
----------------------------------------
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