Exhibit 4.1
CHANDLER (U.S.A.), INC.
____% Senior Debentures due 2014
---------
FORM OF INDENTURE
Dated as of _______, 1999
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U.S. TRUST COMPANY OF TEXAS, N.A.
Trustee
TABLE OF CONTENTS
PAGE
ARTICLE 1
Definitions and Incorporation by Reference
SECTION 1.1 Definitions............................................................................ 1
SECTION 1.2 Other Definitions...................................................................... 8
SECTION 1.3 Incorporation by Reference of Trust Indenture Act...................................... 8
SECTION 1.4 Rules of Construction.................................................................. 9
ARTICLE 2
The Debentures
SECTION 2.1 Form and Dating........................................................................ 9
SECTION 2.2 Execution and Authentication........................................................... 10
SECTION 2.3 Registrar and Paying Agent............................................................. 10
SECTION 2.4 Paying Agent To Hold Money in Trust.................................................... 11
SECTION 2.5 Debentureholder Lists.................................................................. 11
SECTION 2.6 Transfer............................................................................... 11
SECTION 2.7 Replacement Debentures................................................................. 12
SECTION 2.8 Outstanding Debentures................................................................. 12
SECTION 2.9 Temporary Debentures................................................................... 13
SECTION 2.10 Cancelation............................................................................ 13
SECTION 2.11 Defaulted Interest..................................................................... 13
SECTION 2.12 CUSIP Numbers.......................................................................... 13
ARTICLE 3
Redemption
SECTION 3.1 Notices to Trustee.................................................................... 14
SECTION 3.2 Selection of Debentures To Be Redeemed................................................ 14
SECTION 3.3 Notice of Redemption.................................................................. 14
SECTION 3.4 Effect of Notice of Redemption........................................................ 15
SECTION 3.5 Deposit of Redemption Price........................................................... 15
SECTION 3.6 Debentures Redeemed in Part........................................................... 16
PAGE
ARTICLE 4
Covenants
SECTION 4.1 Payment of Debentures................................................................. 16
SECTION 4.2 SEC Reports........................................................................... 16
SECTION 4.3 Limitation on Subsidiary Debt and Preferred Stock..................................... 17
SECTION 4.4 Limitation on Liens................................................................... 17
SECTION 4.5 Limitation on Sale and Leaseback Transactions......................................... 17
SECTION 4.6 Limitation on Mergers and Consolidations.............................................. 17
SECTION 4.7 Limitation on Issuances or Dispositions of Stock of Subsidiaries...................... 18
SECTION 4.8 Compliance Certificate................................................................ 18
SECTION 4.9 Further Instruments and Acts.......................................................... 18
ARTICLE 5
Defaults and Remedies
SECTION 5.1 Events of Default..................................................................... 18
SECTION 5.2 Acceleration.......................................................................... 20
SECTION 5.3 Other Remedies........................................................................ 21
SECTION 5.4 Waiver of Past Defaults............................................................... 21
SECTION 5.5 Control by Majority................................................................... 21
SECTION 5.6 Limitation on Suits................................................................... 21
SECTION 5.7 Rights of Holders To Receive Payment.................................................. 22
SECTION 5.8 Collection Suit by Trustee............................................................ 22
SECTION 5.9 Trustee May File Proofs of Claim...................................................... 22
SECTION 5.10 Priorities............................................................................ 22
SECTION 5.11 Undertaking for Costs................................................................. 23
SECTION 5.12 Waiver of Stay or Extension Laws...................................................... 23
ARTICLE 6
Trustee
SECTION 6.1 Duties of Trustee..................................................................... 23
SECTION 6.2 Rights of Trustee..................................................................... 25
SECTION 6.3 Individual Rights of Trustee.......................................................... 26
SECTION 6.4 Trustee's Disclaimer.................................................................. 26
SECTION 6.5 Notice of Defaults.................................................................... 26
SECTION 6.6 Reports by Trustee to Holders......................................................... 26
SECTION 6.7 Compensation and Indemnity............................................................ 26
SECTION 6.8 Replacement of Trustee................................................................ 27
SECTION 6.9 Successor Trustee by Merger........................................................... 28
SECTION 6.10 Eligibility; Disqualification......................................................... 28
SECTION 6.11 Preferential Collection of Claims Against Company..................................... 29
PAGE
ARTICLE 7
Discharge of Indenture; Defeasance
SECTION 7.1 Discharge of Liability on Debentures; Defeasance...................................... 29
SECTION 7.2 Conditions to Defeasance.............................................................. 30
SECTION 7.3 Application of Trust Money............................................................ 31
SECTION 7.4 Repayment to Company.................................................................. 31
SECTION 7.5 Indemnity for Government Obligations.................................................. 31
SECTION 7.6 Reinstatement......................................................................... 31
ARTICLE 8
Amendments
SECTION 8.1 Without Consent of Holders............................................................ 32
SECTION 8.2 With Consent of Holders............................................................... 32
SECTION 8.3 Compliance with Trust Indenture Act................................................... 33
SECTION 8.4 Revocation and Effect of Consents and Waivers......................................... 33
SECTION 8.5 Notation on or Exchange of Debentures................................................. 34
SECTION 8.6 Trustee To Sign Amendments............................................................ 34
ARTICLE 9
Miscellaneous
SECTION 9.1 Trust Indenture Act Controls.......................................................... 34
SECTION 9.2 Notices............................................................................... 34
SECTION 9.3 Communication by Holders with Other Holders........................................... 35
SECTION 9.4 Certificate and Opinion as to Conditions Precedent.................................... 35
SECTION 9.5 Statements Required in Certificate or Opinion......................................... 36
SECTION 9.6 When Debentures Disregarded........................................................... 36
SECTION 9.7 Rules by Trustee, Paying Agent and Registrar.......................................... 36
SECTION 9.8 Legal Holidays........................................................................ 36
SECTION 9.9 GOVERNING LAW......................................................................... 36
SECTION 9.10 No Recourse Against Others............................................................ 37
SECTION 9.11 Successors............................................................................ 37
SECTION 9.12 Multiple Originals.................................................................... 37
SECTION 9.13 Table of Contents; Headings........................................................... 37
Appendix -- Provisions Relating to Debentures
Exhibit I -- Form of Debenture
Exhibit II -- Assignment Form
INDENTURE dated as of ______, 1999, between CHANDLER (U.S.A.), INC., an
Oklahoma corporation (the "COMPANY"), and U.S. TRUST COMPANY OF TEXAS, N.A., as
trustee (the "TRUSTEE").
Each party agrees as follows for the benefit of the other parties and
for the equal and ratable benefit of the Holders of the Company's ____% Senior
Debentures due 2014 issued on the date hereof ("DEBENTURES"). Except as
otherwise provided herein, the Debentures will be limited to $24,000,000 in
aggregate principal amount outstanding.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 DEFINITIONS.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Value" means, as to any particular lease under which any
Person is at the time liable other than a Capital Lease Obligation, and at any
date as of which the amount thereof is to be determined, the total net amount of
rent required to be paid by such Person under such lease during the initial term
thereof as determined in accordance with GAAP, discounted from the last date of
such initial term to the date of determination at a rate per annum equal to the
discount rate which would be applicable to a Capital Lease Obligation with like
term in accordance with GAAP. The net amount of rent required to be paid under
any such lease for any such period shall be the aggregate amount of rent payable
by the lessee with respect to such period after excluding amounts required to be
paid on account of insurance, taxes, assessments, utility, operating and labor
costs and similar charges. In the case of any lease which 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 required to be paid
under such lease subsequent to the first date upon which it may be so
terminated. "Attributable Value" means, as to a Capital Lease Obligation under
which any Person is at the time liable and at any date as of which the amount
thereof is to be determined, the capitalized amount thereof that would appear on
the face of a balance sheet of such Person in accordance with GAAP.
"Board of Directors" means the Board of Directors of the Company or any
committee thereof duly authorized to act on behalf of such Board of Directors.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each day which is not a Legal Holiday.
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other Debt arrangements
conveying the right to use) real or personal property of such Person which is
required to be classified and accounted for as a capital lease or a liability on
the face of a balance sheet of such Person in accordance with GAAP. The stated
maturity of such obligation shall be the date of the last payment of rent or any
other amount due under such lease or other Debt arrangements prior to the first
date upon which such lease may be terminated by the lessee without payment of a
penalty.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock of
such Person.
"Closing Date" means ____, 1999.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means the party named as such in this Indenture until a
successor replaces it under this Indenture and, thereafter, means the successor
and, for purposes of any provision contained herein and required by the TIA,
each other obligor on the indenture securities.
"Company Request," "Company Order" and "Company Consent" mean a written
request, order or consent, respectively, signed in the name of the Company by
its Chairman of the Board, Chief Executive Officer, Chief Operating Officer,
President or a Vice President, and by its Treasurer, an Assistant Treasurer,
Controller, an Assistant Controller, Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Consolidated Subsidiaries" of any Person means all other Persons that
would be accounted for as consolidated Persons in such Person's financial
statements in accordance with GAAP.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be administered, which
office at the date hereof is located at 2001 Ross Avenue, Suite 2700, Dallas,
Texas 75201.
"Debentures" means the Debentures issued under this Indenture.
"Debt" means (without duplication), with respect to any Person, whether
recourse is to all or a portion of the assets of such Person, and whether or not
contingent, (i) every obligation of such Person for money borrowed, (ii) every
obligation of such Person evidenced by bonds (other
than surety or fidelity bonds issued by such Person in the ordinary course of
business), debentures, notes or other similar instruments, (iii) every
reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such Person
other than as entered into in the ordinary course of business, (iv) every
obligation of such Person issued or assumed as the deferred purchase price of
property or services (but excluding trade accounts payable or accrued
liabilities arising in the ordinary course of business), (v) every Capital Lease
Obligation of such Person, (vi) the maximum fixed redemption or repurchase price
of Redeemable Stock of such Person at the time of determination, (vii) every
payment obligation of such Person under interest rate swap or similar agreements
or foreign currency hedge, exchange or similar agreements at the time of
determination and (viii) every obligation of the type referred to in clauses (i)
through (vii) of another Person and all dividends of another Person the payment
of which, in either case, such Person has Guaranteed or is responsible or
liable, directly or indirectly, as obligor, guarantor or otherwise and such
obligations secured by (or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured by) any Lien on assets
or property (including, without limitation, accounts and contract rights)
owned by such Person, even though such Person has not assumed or become
liable for the payment of such obligation; PROVIDED, that if the obligation
so secured has not been assumed in full by such Person or is otherwise not
such Person's legal liability in full, the amount of such obligation for the
purposes of this definition shall be limited to the lesser of the amount of
such obligation secured by such Lien or the fair market value of the assets
or property owned by such Person securing such Lien. Notwithstanding the
foregoing, the term "Debt" shall not include obligations owed under the terms
of insurance or reinsurance policies or agreements or endorsements, with
recourse, of negotiable instruments in the ordinary course of business.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United
States, consistently applied, that are in effect from time to time.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Debt of any other Person (the "primary obligor") in any manner,
whether directly or indirectly, and including without limitation any obligation
of such Person, (i) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Debt or to purchase (or to advance or supply funds
for the purchase of) any security for the payment of such Debt, (ii) to purchase
property, securities or services for the purpose of assuring the holder of such
Debt of the payment of such Debt or (iii) to maintain working capital, equity
capital or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such Debt (and "Guaranteed"
and "Guaranteeing" shall have meanings correlative to the foregoing); PROVIDED,
HOWEVER, that the Guarantee by a Person shall not include endorsements by such
Person for collection or deposit in the ordinary course of business.
"Holder" or "Debentureholder" means the Person in whose name a
Debenture is
registered on the Registrar's books.
"Incur" means, with respect to any Debt or other obligation of any
Person, to create, issue, incur (by conversion, exchange or otherwise), assume,
Guarantee or otherwise become liable in respect of such Debt or other obligation
or the recording, as required pursuant to GAAP or otherwise, of any such Debt or
other obligation on the balance sheet of such Person (and "Incurrence,"
"Incurred," "Incurrable" and "Incurring" shall have meanings correlative to the
foregoing); PROVIDED, HOWEVER, that a change in GAAP that results in an
obligation of such Person that exists at such time becoming Debt shall not be
deemed an Incurrence of such Debt.
"Indenture" means this Indenture as amended and supplemented from time
to time.
"Issue Date" means the date on which the Debentures are originally
issued.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, deposit agreement, security
interest, lien, charge, easement (other than any title defect or easement not
materially impairing usefulness or marketability), encumbrance, preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever on or with respect to such property or assets (including,
without limitation, any conditional sale or other title retention agreement
having substantially the same economic effect as any of the foregoing).
"Officer" means the Chairman of the Board, the Chief Executive Officer,
the Chief Financial Officer, the President, any Vice President, the Treasurer or
the Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company or the Trustee.
"Permitted Debt and Preferred Stock" means (i) Debt outstanding on the
Issue Date after giving effect to the application of the proceeds from the
Debentures, (ii) Debt or Preferred Stock issued to and held by the Company or a
Wholly Owned Subsidiary of the Company, but only so long as held or owned by the
Company or a Wholly Owned Subsidiary of the Company; (iii) Debt Incurred or
Preferred Stock issued by a Person prior to the time (A) such Person became a
Subsidiary of the Company, (B) such Person merges into or consolidates with a
Subsidiary of the Company or (C) another Subsidiary of the Company merges into
or consolidates with such Person (in a transaction in which such Person becomes
a Subsidiary of the Company), or Debt Incurred or Preferred Stock issued by a
Person and thereafter assumed by a Subsidiary of the Company in a transaction in
which the property of such Person is sold, leased or otherwise disposed of as an
entirety or substantially as an entirety to such Subsidiary, in each such case
in which such Debt or Preferred Stock was not Incurred or issued in anticipation
of such transaction; (iv) Debt Incurred for the purpose of financing all or any
part of the purchase price
or the cost of construction of or improvements to the present or future
property, whether real or personal, of the Company or any Subsidiary
incurring such debt in an aggregate principal amount not to exceed the
greater of the fair market value or actual cost of acquisition or
construction of such property, construction or improvements (or additions to
improvements); (v) Debt or Preferred Stock that is exchanged for, or the
proceeds of which are used to refinance or refund, any Debt or Preferred
Stock permitted to be outstanding pursuant to clauses (i) through (iv) (or
any extension or renewal thereof) (A) in an aggregate principal amount not to
exceed the principal amount of the Debt, in the case of Debt, or the
liquidation preference of the Preferred Stock, in the case of Preferred
Stock, so exchanged, refinanced or refunded and (B) provided that such Debt
or Preferred Stock does not require the payment of all or a portion of the
principal or liquidation value thereof (whether pursuant to purchase,
redemption, defeasance, retirement, sinking fund payment, payment at stated
maturity or otherwise, but excluding any payment or retirement required by
virtue of acceleration of such Debt upon an event of default thereunder or
"change of control" or similar provision thereunder) prior to the scheduled
maturity or maturities of the Debt or Preferred Stock being refinanced or
refunded; (vi) Debt arising from agreements providing for indemnification,
adjustment of purchase price or similar obligations or from guarantees or
letters of credit, surety bonds or performance bonds securing any obligations
of any Subsidiary of the Company pursuant to such agreements, in each case
Incurred in connection with the disposition of any business assets of any
subsidiary of the Company (other than Guarantees of Debt or other obligations
Incurred by any Person acquiring all or any portion of such business assets
for the purpose of financing such acquisition) in a principal amount not to
exceed the gross proceeds actually received by any such Subsidiary in
connection with such disposition; and (vii) Debt not otherwise permitted to
be Incurred pursuant to clauses (i) through (vi) above) which, together with
the sum of all other outstanding Debt Incurred pursuant to this clause (vii),
has an aggregate principal amount not in excess of $2.0 million.
"Permitted Liens" means (i) Liens securing only the Debentures; (ii)
Liens in favor of the Company; (iii) Liens on property of a Person existing at
the time (A) such Person becomes a Subsidiary of the Company, (B) is merged into
or consolidated with the Company (or any Subsidiary of the Company), (C) any
Subsidiary of the Company merges into or consolidates with such Person or (D)
the property of such Person is sold, leased or otherwise disposed of as an
entirety or substantially as an entirety to the Company or a Subsidiary thereof,
in each such case not securing Debt Incurred in anticipation of such
transaction; (iv) Liens on property existing at the time of acquisition thereof;
(v) Liens on property of the Company or any Subsidiary of the Company securing
(A) all or any portion of the cost of acquiring, constructing, altering,
improving or repairing any property, real or personal, or improvements used or
to be used in connection with such property or (B) Debt Incurred by the Company
or any Subsidiary of the Company prior to or within one year after the later of
the acquisition, the completion of construction, alteration, improvement or
repair, or the commencement of commercial operation thereof, which Debt is
Incurred for the purpose of financing all or any part of the purchase price
thereof or such construction, alteration, improvement or repair, provided that,
in the case of clause (A) or (B) above, such Liens (1) are created not later
than one year after such acquisition,
construction, alteration, improvement or repair, or the commencement of
commercial operation, whichever is later, (2) are limited to the property
acquired, constructed, altered, approved or repaired and (3) do not secure Debt
in excess of the cost of such acquisition, construction, alteration, improvement
or repair; (vi) Liens in favor of the United States of America or any State,
territory or possession thereof (or the District of Columbia), or any
department, agency, instrumentality or political subdivision of the United
States of America or any State, territory or possession thereof (or the District
of Columbia), to secure partial, progress, advance or other payments pursuant to
any contract or statute or to secure any Debt incurred for the purpose of
financing all or any part of the purchase price or the cost of constructing or
improving the property subject to such Liens; (vii) Liens in favor of any
insurance company to secure the obligations of any Subsidiary under any
insurance or reinsurance agreement or arrangement (whether faculative or treaty)
granted or incurred in the ordinary course of business to the extent required
under such insurance or reinsurance agreement or arrangement; (viii) mechanics',
workmen's, materialmen's or similar Liens arising in the ordinary course of
business; (ix) Liens to secure any extension, renewal, refinancing or refunding
(or successive extensions, renewals, refinancings or refundings), in whole or in
part, of any Debt secured by Liens referred to in the foregoing clauses (i) to
(vii) so long as such Lien does not extend to any other property (other than
improvements to such property) and the principal amount of the Debt so secured
is not increased; (x) Liens to secure Debt in an aggregate principal amount not
to exceed $2.0 million at any one time outstanding (without duplication of any
other Debt specified in clauses (i) through (ix) above or clauses (xi) or (xii)
below); (xi) Liens securing Debt owed by the Company to one or more Wholly Owned
Subsidiaries of the Company (but only if such Debt is held by such Wholly Owned
Subsidiaries); (xii) 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 Debt) 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 or other fixed maturity investments
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
insurance or reinsurance obligations 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; (xiii) easements, rights-of-way,
zoning, similar restrictions and other similar encumbrances or title defects
incurred in the ordinary course of business which, in the aggregate, are not
material in amount and which do not, in any case, materially detract from the
value of the property subject thereto (as such property is used by the company
or any Subsidiary of the Company) or materially interfere with the ordinary
conduct of the business of the Company or any Subsidiary of the Company; and
(xiv) Liens of the Trustee under this indenture.
"Person" means any individual, corporation, partnership, joint venture,
limited liability company, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Preferred Stock," as applied to the Capital Stock of any Person, means
Capital Stock of such Person of any class or classes (however designated) that
ranks prior, as to the payment of dividends or as to the distribution of assets
upon any voluntary or involuntary liquidation, dissolution or winding up of such
Person, to shares of any other class of Capital Stock of such Person.
"principal" of a Debenture means the principal of the Debenture plus
the premium, if any, payable on the Debenture that is due or overdue or is to
become due at the relevant time.
"Redeemable Stock" of any Person means any equity security of such
Person that by its terms or otherwise is required to be redeemed prior to the
Stated Maturity of the Debentures or is redeemable at the option of the holder
thereof at any time prior to the Stated Maturity of the Debentures.
"Sale and Leaseback Transaction" of any Person means an arrangement
with any lender or investor or to which such lender or investor is a party
providing for the leasing by such Person of any property or assets of such
Person which has been or is being sold or transferred by such Person more
than one year after the acquisition thereof or the completion of construction
or commencement of operation thereof to such lender or investor or to any
Person to whom funds have been or are to be advanced by such lender or
investor on the security of such property or asset. The STATED MATURITY of
such arrangement shall be the date of the last payment of rent or any other
similar amount due under such arrangement prior to the first date on which
such arrangement may be terminated by the lessee without payment of a penalty.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Significant Subsidiary" means any Subsidiary that would be a
"Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the SEC.
"Stated Maturity" means, with respect to any security, the date
specified in such security as the fixed date on which the final 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" means, with respect to any Person, any corporation more
than 50% of the outstanding voting stock of which is owned, directly or
indirectly, by such Person, and any partnership, association, limited liability
company, business trust, joint venture or other entity in which such Person owns
more than 50% of the equity interests or has the power (i) to elect a majority
of the board of directors or other governing body or (ii) to direct the
policies, management or affairs thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb), as amended.
"Trustee" means the party named as such in this Indenture until a
successor replaces it hereunder and, thereafter, means the successor.
"Trust Officer" means the Chairman of the Board, the President, Vice
President or any other officer or assistant officer of the Trustee assigned by
the Trustee to administer its corporate trust matters.
"Uniform Commercial Code" means the New York Uniform Commercial Code as
in effect from time to time.
"U.S. Government Obligations" means direct obligations (or certificates
representing an ownership interest in such obligations) of the United States of
America (including any agency or instrumentality thereof) for the payment of
which the full faith and credit of the United States of America is pledged and
which are not callable or redeemable at the issuer's option.
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person all of the outstanding Capital Stock or other ownership interests of
which (other than directors' qualifying shares) shall at the time be owned by
such Person or by one or more Wholly Owned Subsidiaries of such Person or by
such Person and one or more Wholly Owned Subsidiaries of such Person.
SECTION 1.2 OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
- ---- -------
"Bankruptcy Law" 5.1
"covenant defeasance option" 7.1(b)
"Custodian" 5.1
"Defaulted Interest" 2.11
"Event of Default" 5.1
"Insurance Law" 5.1
"legal defeasance option" 7.1(b)
"Legal Holiday" 9.8
"Paying Agent" 2.3
"protected purchaser" 2.7
"Registrar" 2.3
SECTION 1.3 INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. This
Indenture is subject to the mandatory provisions of the TIA, which are
incorporated by reference in and made a part of this Indenture. The following
TIA terms have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Debentures.
"indenture security holder" means a Holder or Debentureholder.
"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 indenture securities.
All other TIA terms used but not otherwise defined in this Indenture
that are defined by the TIA, defined by TIA reference to another statute or
defined by SEC rule have the meanings assigned to them by such definitions.
SECTION 1.4 RULES OF CONSTRUCTION. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
(5) words in the singular include the plural and words in the
plural include the singular;
(6) the principal amount of any noninterest bearing or other
discount security at any date shall be the principal amount thereof
that would be shown on a balance sheet of the issuer dated such date
prepared in accordance with GAAP;
(7) the principal amount of any Preferred Stock shall be (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, whichever is greater.
ARTICLE 2
THE DEBENTURES
SECTION 2.1 FORM AND DATING. Provisions relating to the Debentures
are set forth in the APPENDIX, which is hereby incorporated in and expressly
made a part of this Indenture. The Debentures and the Trustee's certificate
of authentication with respect thereto shall each be substantially in the
form of EXHIBIT I hereto, which is hereby incorporated in and expressly made
a part of this Indenture. The Debentures may have notations, legends or
endorsements required by law, stock exchange rule, agreements to which the
Company is subject, if any, or usage (provided that any such notation, legend
or endorsement is in a form acceptable to the Company). Each Debenture shall
be dated the date of its authentication.
SECTION 2.2 EXECUTION AND AUTHENTICATION. One or more Officers shall
sign the Debentures for the Company by manual or facsimile signature.
If an Officer whose signature is on a Debenture no longer holds that
office at the time the Trustee authenticates the Debenture, the Debenture shall
be valid nevertheless.
A Debenture shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Debenture. The
signature shall be conclusive evidence that the Debenture has been authenticated
under this Indenture.
The Trustee shall authenticate and make available for delivery
Debentures as set forth in the Appendix.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate the Debentures. Any such appointment shall be
evidenced by an instrument signed by a Trust Officer, a copy of which shall be
furnished to the Company. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Debentures whenever the Trustee may do so.
Each reference in this Indenture to authentication by the Trustee includes
authentication by such agent and provide the Trustee with a copy of the
agreement. An authenticating agent has the same rights as any Registrar, Paying
Agent or agent for service of notices and demands.
SECTION 2.3 REGISTRAR AND PAYING AGENT. The Company shall maintain an
office or agency where Debentures may be presented for registration of transfer
or for exchange (the "Registrar") and an office or agency where Debentures may
be presented for payment (the "Paying Agent"). The Registrar shall keep a
register of the Debentures and of their transfer and exchange. The Company may
have one or more co-registrars and one or more additional paying agents. The
term "Paying Agent" includes any additional paying agent, and the term
"Registrar" includes any coregistrars. The Company initially appoints the
Trustee as (i) Registrar and Paying Agent in connection with the Debentures and
(ii) the Debentures Custodian (as defined in the Appendix) with respect to the
Global Debentures (as defined in the Appendix).
The Company shall enter into an appropriate agency agreement with any
Registrar or Paying Agent not a party to this Indenture, which shall incorporate
the terms of the TIA. The agreement shall implement the provisions of this
Indenture that relate to such agent. The Company shall notify the Trustee of the
name and address of any such agent and provide the Trustee with a copy of the
agreement. If the Company fails to maintain a Registrar or Paying Agent, the
Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 6.7. The Company or any of its domestically
organized Wholly Owned Subsidiaries may act as Paying Agent or Registrar.
The Company may remove any Registrar or Paying Agent upon written
notice to such
Registrar or Paying Agent and to the Trustee; PROVIDED, HOWEVER, that no such
removal shall become effective until acceptance of an appointment by a successor
as evidenced by an appropriate agreement entered into by the Company and such
successor Registrar or Paying Agent, as the case may be, and delivered to the
Trustee. The Registrar or Paying Agent may resign at any time upon written
notice; PROVIDED, HOWEVER, that the Trustee may resign as Paying Agent or
Registrar only if the Trustee also resigns as Trustee in accordance with Section
6.8.
SECTION 2.4 PAYING AGENT TO HOLD MONEY IN TRUST. Prior to each due date
of the principal and interest on any Debenture, the Company shall deposit with
the Paying Agent (or if the Company or a Subsidiary is acting as Paying Agent,
segregate and hold in trust for the benefit of the Persons entitled thereto) a
sum sufficient to pay such principal and interest when so becoming due. The
Company shall require each Paying Agent (other than the Trustee) to agree in
writing that the Paying Agent shall hold in trust for the benefit of
Debentureholders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Debentures and shall notify the
Trustee of any default by the Company in making any such payment. If the Company
or a Subsidiary of the Company acts as Paying Agent, it shall segregate the
money held by it as Paying Agent and hold it as a separate trust fund. The
Company at any time may require a Paying Agent other than the Trustee to pay all
money held by it to the Trustee and to account for any funds disbursed by the
Paying Agent. Upon complying with this Section, the Paying Agent shall have no
further liability for the money delivered to the Trustee.
SECTION 2.5 DEBENTUREHOLDER LISTS. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Debentureholders. If the Trustee is not the
Registrar, the Company shall furnish, or cause the Registrar to furnish, to the
Trustee, in writing at least five Business Days before each interest payment
date, dated as of the record date, and at such other times as the Trustee may
request in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Debentureholders.
SECTION 2.6 TRANSFER. The Debentures shall be issued in registered form
and shall be transferable only upon the surrender of a Debenture for
registration of transfer. When a Debenture is presented to the Registrar with a
request to register a transfer, the Registrar shall register the transfer as
requested if the requirements of Section 8-401(a)(l) of the Uniform Commercial
Code are met. To permit registration of transfers, the Company shall execute and
the Trustee shall authenticate Debentures at the Registrar's request. The
Company may require payment of a sum sufficient to pay all taxes, assessments or
other governmental charges in connection with any transfer pursuant to this
Section. The Company shall not be required to make and the Registrar need not
register transfers of Debentures selected for redemption (except, in the case of
Debentures to be redeemed in part, the portion thereof not to be redeemed) or
any Debentures for a period of 15 days before a selection of Debentures to be
redeemed.
Prior to the due presentation for registration of transfer of any
Debenture, the Company, the Trustee, the Paying Agent and the Registrar may deem
and treat the Person in whose name a Debenture is registered as the absolute
owner of such Debenture for the purpose of receiving
payment of principal of and interest, if any, on such Debenture and for all
other purposes whatsoever, whether or not such Debenture is overdue, and none of
the Company, the Trustee, the Paying Agent or the Registrar shall be affected by
or be required to act in accordance with notice to the contrary.
Any Holder of a Global Debenture shall, by acceptance of such Global
Debenture, agree that transfers of beneficial interest in such Global Debenture
may be effected only through a book-entry system maintained by (i) the Holder of
such Global Debenture (or its agent) or (ii) any Holder of a beneficial interest
in such Global Debenture, and that ownership of a beneficial interest in such
Global Debenture shall be required to be reflected in a book entry. None of the
Company, the Trustee, the Paying Agent or the Registrar shall have any duty with
respect to or obligation for the maintenance of any book-entry system respecting
any Debenture maintained under these provisions.
All Debentures issued upon any transfer or exchange pursuant to the
terms of this Indenture will evidence the same debt and will be entitled to the
same benefits under this Indenture as the Debentures surrendered upon such
transfer or exchange.
SECTION 2.7 REPLACEMENT DEBENTURES. If a mutilated Debenture is
surrendered to the Registrar or if the Holder of a Debenture claims that the
Debenture has been lost, destroyed or wrongfully taken, the Company shall issue
and the Trustee shall authenticate a replacement Debenture if the requirements
of Section 8-405 of the Uniform Commercial Code are met, such that the Holder
(i) satisfies the Company or the Trustee regarding those requirements within a
reasonable time after he has notice of such loss, destruction or wrongful taking
and the Registrar does not register a transfer prior to receiving such
notification, (ii) makes such request to the Company or the Trustee prior to the
Debenture being acquired by a protected purchaser as defined in Section 8-303 of
the Uniform Commercial Code (a "protected purchaser") and (iii) satisfies any
other reasonable requirements of the Trustee. If required by the Trustee or the
Company, such Holder shall furnish an indemnity bond sufficient in the judgment
of the Trustee to protect the Company, the Trustee, the Paying Agent and the
Registrar from any loss that any of them may suffer if a Debenture is replaced.
The Company and the Trustee may charge the Holder for their expenses in
replacing a Debenture. In the event any such mutilated, lost, destroyed or
wrongfully taken Debenture has become or is about to become due and payable, the
Company in its discretion may pay such Debenture instead of issuing a new
Debenture in replacement thereof.
Every replacement Debenture is an additional obligation of the Company.
The provisions of this Section 2.7 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, lost, destroyed or wrongfully taken Debentures.
SECTION 2.8 OUTSTANDING DEBENTURES. Debentures outstanding at any time
are all Debentures authenticated by the Trustee except for those canceled by it,
those delivered to it for cancelation and those described in this Section as not
outstanding. A Debenture does not
cease to be outstanding because the Company or an Affiliate of the Company holds
the Debenture.
If a Debenture is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Debenture is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in accordance with
this Indenture, on a redemption date or maturity date money sufficient to pay
all principal and interest payable on that date with respect to the Debentures
(or portions thereof) to be redeemed or maturing, as the case may be, then on
and after that date such Debentures (or portions thereof) cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.9 TEMPORARY DEBENTURES. In the event that Definitive
Debentures (as defined in the Appendix) are to be issued under the terms of this
Indenture, until such Definitive Debentures are ready for delivery, the Company
may prepare and the Trustee shall authenticate temporary Debentures. Temporary
Debentures shall be substantially in the form of Definitive Debentures but may
have variations that the Company considers appropriate for temporary Debentures.
Without unreasonable delay, the Company shall prepare and the Trustee shall
authenticate Definitive Debentures and deliver them in exchange for temporary
Debentures upon surrender of such temporary Debentures at the office or agency
of the Company, without charge to the Holder.
SECTION 2.10 CANCELATION. The Company at any time may deliver
Debentures to the Trustee for cancelation. The Registrar and the Paying Agent
shall forward to the Trustee any Debentures surrendered to them for registration
of transfer, exchange or payment. The Trustee and no one else shall cancel all
Debentures surrendered for registration of transfer, exchange, payment or
cancelation and, at the option of the Trustee, either cremated, shredded or
otherwise disposed of. the Trustee shall execute and forward to the Company an
appropriate certificate describing the Debenture involved and the manner of
disposition. The Company may not issue new Debentures to replace Debentures it
has redeemed, paid or delivered to the Trustee for cancelation. The Trustee
shall not authenticate Debentures in place of canceled Debentures other than
pursuant to the terms of this Indenture.
SECTION 2.11 DEFAULTED INTEREST. If the Company defaults in a payment
of interest on the Debentures, the Company shall pay the defaulted interest
(plus interest on such defaulted interest to the extent lawful) ("Defaulted
Interest") in any lawful manner. The Company may pay the defaulted interest to
the Persons who are Debentureholders on a subsequent special record date. The
Company shall fix or cause to be fixed any such special record date and payment
date to the reasonable satisfaction of the Trustee and shall promptly mail or
cause to be mailed to each Debentureholder a notice that states the special
record date, the payment date and the amount of defaulted interest to be paid.
SECTION 2.12 CUSIP NUMBERS. The Company in issuing the Debentures may
use "CUSIP" numbers (if then generally in use) for the Debentures. If there are
one or more CUSIP numbers for the Debentures, the Trustee shall use "CUSIP"
numbers in any notice of redemption as a convenience to Holders; PROVIDED,
HOWEVER, that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Debentures or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Debentures, and any such redemption shall
not be affected by any defect in or omission of such numbers.
ARTICLE 3
REDEMPTION
SECTION 3.1 NOTICES TO TRUSTEE. If the Company elects to redeem
Debentures pursuant to paragraph 5 of the Debentures, it shall notify the
Trustee in writing of the redemption date, the principal amount of Debentures to
be redeemed and the paragraph of the Debentures pursuant to which the redemption
will occur.
The Company shall give each notice to the Trustee provided for in this
Section at least 60 days before the redemption date unless the Trustee consents
to a shorter period. 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 for redemption set forth herein and
in the Debentures. If fewer than all the Debentures 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 fewer than 15 days after
the date of notice to the Trustee. Any such notice may be canceled at any time
prior to notice of such redemption being mailed to any Holder and upon
cancelation shall thereby be void and of no effect.
SECTION 3.2 SELECTION OF DEBENTURES TO BE REDEEMED. If fewer than all
the Debentures are to be redeemed, the Trustee shall select in its sole
discretion the Debentures to be redeemed pro rata or by lot or by a method that
complies with applicable legal and securities exchange requirements, if any, and
that the Trustee in its sole discretion shall deem to be fair and appropriate
and in accordance with methods generally used at the time of selection by
fiduciaries in similar circumstances. The Trustee shall make the selection from
outstanding Debentures not previously called for redemption. The Trustee may
select for redemption portions of the principal of Debentures that have
denominations larger than $1,000. Debentures and portions of them the Trustee
selects shall be in amounts of $1,000 or a whole multiple of $1,000. Provisions
of this Indenture that apply to Debentures called for redemption also apply to
portions of Debentures called for redemption. The Trustee shall notify the
Company promptly of the Debentures or portions of Debentures to be redeemed.
SECTION 3.3 NOTICE OF REDEMPTION. At least 30 days but not more than 60
days before a date for redemption of Debentures, the Company shall mail a notice
of redemption by first-class mail to each Holder of Debentures to be redeemed at
such Holder's registered address.
The notice shall identify the Debentures to be redeemed and shall
state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) that Debentures called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(5) if fewer than all the outstanding Debentures are to be
redeemed, the certificate numbers and principal amounts of the
particular Debentures to be redeemed;
(6) 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, interest on Debentures
(or portion thereof) called for redemption ceases to accrue on and
after the redemption date;
(7) the paragraph of the Debentures pursuant to which the
Debentures called for redemption are being redeemed;
(8) the CUSIP number, if any, printed on the Debentures being
redeemed; and
(9) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed
on the Debentures.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense. In such event,
the Company shall provide the Trustee with the information required by this
Section.
SECTION 3.4 EFFECT OF NOTICE OF REDEMPTION. Once notice of redemption
is mailed, Debentures called for redemption become due and payable on the
redemption date and at the redemption price stated in the notice. Upon surrender
to the Paying Agent, such Debentures shall be paid at the redemption price
stated in the notice, plus accrued interest, if any, to the redemption date;
PROVIDED, HOWEVER, that if the redemption date is after a regular record date
for interest payment and on or prior to the interest payment date, the accrued
interest shall be payable to the Debentureholder of the redeemed Debentures
registered on the relevant record date. Failure to give notice or any defect in
the notice to any Holder shall not affect the validity of the notice to any
other Holder.
SECTION 3.5 DEPOSIT OF REDEMPTION PRICE. Prior to 10:00 a.m. (Dallas
time) on the redemption date, the Company shall deposit with the Paying Agent
(or, if the Company or a Subsidiary is the Paying Agent, shall segregate and
hold in trust) money sufficient to pay the
redemption price of and accrued interest on all Debentures to be redeemed on
that date other than Debentures or portions of Debentures called for redemption
that have been delivered by the Company to the Trustee for cancelation.
SECTION 3.6 DEBENTURES REDEEMED IN PART. Upon surrender of a Debenture
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate for the Holder (at the Company's expense) a new Debenture equal in
principal amount to the unredeemed portion of the Debenture surrendered. The
Debentures so surrendered shall be canceled.
ARTICLE 4
COVENANTS
SECTION 4.1 PAYMENT OF DEBENTURES. The Company shall promptly pay the
principal of and interest on the Debentures on the dates and in the manner
provided in the Debentures and in this Indenture. Principal and interest shall
be considered paid on the date due if on such date the Trustee or the Paying
Agent holds in accordance with this Indenture (or if the Company is the Paying
Agent, the Company has segregated and is holding in trust for the benefit of the
Holders) money sufficient to pay all principal and interest then due and the
Trustee or the Paying Agent, as the case may be, is not prohibited from paying
such money to the Debentureholders 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 Debentures, and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.2 SEC REPORTS. The Company shall file with the SEC, to the
extent the SEC accepts such filings and whether or not the Company has a class
of securities registered under the Exchange Act or is otherwise subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, all annual
reports, quarterly reports and other documents that the Company is required to
file with the SEC or (if the Company is not subject to the reporting
requirements of Section 13 or 15(d) of the Exchange Act) would be required to
file with the SEC if the Company were subject to Section 13 or 15(d) of the
Exchange Act within the time periods such reports and documents are required to
be so filed or (if the Company is not subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act) would be required to be so filed if the
Company were subject to Section 13 or 15(d) of the Exchange Act.
The Company also shall (i) file with the Trustee (with exhibits), and
provide to each Holder (without exhibits), without cost to the Trustee or
Holder, copies of all reports and documents filed by the Company with the SEC
within 15 days after the date on which the Company files such reports and
documents with the SEC or the date on which the Company would be required to
file such reports and documents with the SEC if the Company were subject
to Section 13 or 15(d) of the Exchange Act; and (ii) if the filing of such
reports and documents with the SEC is not accepted by the SEC or is prohibited
under the Exchange Act, supply at the Company's cost copies of such reports and
documents (including any exhibits thereto) to any Holder promptly on its written
request. The Company also shall comply with the other provisions of TIA
Section 314(a).
SECTION 4.3 LIMITATION ON SUBSIDIARY DEBT AND PREFERRED STOCK. The
Company shall not permit any Subsidiary of the Company to Incur or suffer to
exist any Debt or issue any Preferred Stock except for Permitted Debt and
Preferred Stock.
SECTION 4.4 LIMITATION ON LIENS. The Company shall not, and shall not
permit any Subsidiary of the Company to, Incur any Lien on any property or
assets of the Company or any Subsidiary to secure Debt without making, or
causing such Subsidiary to make, effective provision for securing the Debentures
(and, if required by its governing instruments, any other Debt of the Company or
of such Subsidiary that is not subordinate to the Debentures) equally and
ratably with such Debt as to such property or assets for so long as such Debt
will be so secured or, in the event such Debt is Debt of the Company which is
subordinate in right of payment to the Debentures, prior to such Debt as to such
property or assets for so long as such Debt will be secured; PROVIDED, HOWEVER,
that nothing contained in this covenant shall prevent, restrict or apply to, and
there shall be excluded from secured Debt in any computation under this Section,
Liens existing on the date of this Indenture and Permitted Liens.
SECTION 4.5 LIMITATION ON SALE AND LEASEBACK TRANSACTIONS. The Company
shall not, and shall not permit any Subsidiary of the Company to, enter into any
Sale and Leaseback Transaction with respect to any property or assets (except
for a period not exceeding three years) unless (i) the Company or such
Subsidiary would be entitled to Incur a Lien on such property or assets to
secure Debt by reason of the provisions described in clauses (i) through
(xiv) of the definition of Permitted Liens in an amount equal to the
Attributable Value of such Sale and Leaseback Transaction without equally and
ratably securing the Debentures or (ii) the Company shall apply an amount
equal to the Attributable Value with respect to such Sale and Leaseback
Transaction within six months of such sale to the defeasance or retirement
(other than any mandatory retirement, mandatory prepayment or sinking fund
payment or by payment at maturity) of Debt securities or other debt for
borrowed money of the Company or a Subsidiary thereof that matures more than
one year after the creation of such Debt or to the purchase, construction or
development of other comparable property.
SECTION 4.6 LIMITATION ON MERGERS AND CONSOLIDATIONS. The Company shall
not consolidate with or merge into any Person, or sell, lease, convey, transfer
or otherwise dispose of all or substantially all of its assets to any Person,
unless (i) the Person formed by or surviving such consolidation or merger (if
other than the Company), or to which the sale, lease, conveyance, transfer or
other disposition will be made (collectively, the "Successor"), is a corporation
organized and existing under the laws of the United States or any State thereof
or the District of Columbia, and the Successor assumes by supplemental indenture
in a form satisfactory to the Trustee all of the obligations of the Company
under the Indenture and under the Debentures, (ii) after giving effect to such
transaction, no Default or Event of Default exists and (iii) the Company or such
Person shall have delivered to the Trustee an officer's certificate
and an opinion of counsel, each in a form satisfactory to the Trustee and
stating that the conditions specified in clauses (i) and (ii) above have been
satisfied.
SECTION 4.7 LIMITATION ON ISSUANCES OR DISPOSITIONS OF STOCK OF
SUBSIDIARIES. The Company shall not, and will not permit any Subsidiary to,
issue, sell or otherwise dispose of any shares of capital stock of any
Subsidiary except for (i) director's qualifying shares, if required by
applicable state laws, (ii) shares or other dispositions to the Company or to
one or more Wholly Owned Subsidiaries of the Company, (iii) the sale or other
disposition of all or any part of the Capital Stock of any Subsidiary for
consideration which is at least equal to the fair value of such Capital Stock as
determined by the Company's board of directors (acting in good faith) or (iv)
any issuance, sale, assignment, transfer or other disposition made in compliance
with an order of a court or regulatory authority of competent jurisdiction,
other than an order issued at the request of the Company, any Subsidiary or any
affiliate of the Company or any Subsidiary.
SECTION 4.8 COMPLIANCE CERTIFICATE. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company,
beginning with the fiscal year of the Company ending December 31, 1999, an
Officers' Certificate stating that in the course of the performance by the
signers of their duties as Officers of the Company they would normally have
knowledge of any Default and whether or not the signers know of any Default that
occurred during such period. If they do, the certificate shall describe the
Default, its status 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 TIA.
SECTION 4.9 FURTHER INSTRUMENTS AND ACTS. Upon request of the Trustee,
the Company shall execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Indenture.
ARTICLE 5
DEFAULTS AND REMEDIES
SECTION 5.1 EVENTS OF DEFAULT. An "Event of Default" occurs if:
(i) the Company defaults in any payment of interest on any
Debenture when the same becomes due and payable, and such default
continues for a period of 30 days;
(ii) the Company defaults in the payment of the principal of
any Debenture when the same becomes due and payable at its Stated
Maturity, upon redemption or repurchase, upon declaration or otherwise;
(iii) the Company fails to comply with any of its covenants
or agreements in the Debentures or this Indenture (other than those
referred to in (i) or (ii) above) and such failure continues for 60
days after the notice specified below;
(iv) Debt of the Company is not paid within any applicable
grace period after final maturity or the acceleration by the holders
thereof because of a default and the total amount of such Debt unpaid
or accelerated exceeds $5.0 million or its foreign currency equivalent
at the time and such failure continues for 20 days after the notice
specified below;
(v) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief
against it in an involuntary case;
(C) consents to the appointment of a Custodian of it
or for any substantial part of its property; or
(D) makes a general assignment for the benefit of its
creditors;
or takes any comparable action under any foreign laws relating to
insolvency;
(vi) a court of competent jurisdiction enters a judgment,
order or decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case;
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for any substantial part of its property; or
(C) orders the winding up or liquidation of the
Company or any Significant Subsidiary;
or any similar relief is granted under any foreign laws and the
judgement, order or decree remains unstayed and in effect for 60 days;
(vii) the Company or any Significant Subsidiary pursuant to or
within the meaning of any Insurance Law consents to the appointment of
a Custodian of it or for any substantial part of its property or any
state insurance regulatory authority with jurisdiction over the Company
or any Significant Subsidiary enters an order or decree or takes
similar action under any Insurance Law that (A) appoints a Custodian of
the Company or any Significant Subsidiary or for any substantial part
of its property or (B) orders the winding up or liquidation of the
Company or any Significant Subsidiary and, in the case of (A) or
(B), such order or decree remains unstayed and in effect for 60 days;
(viii) any judgment or decree for the payment of money in
excess of $5 million or its foreign currency equivalent at the time is
entered against the Company or any Subsidiary of the Company and is not
discharged, waived or stayed and either (A) an enforcement proceeding
has been commenced by any creditor upon such judgment or decree which
proceeding is not stayed or abandoned within 30 days following the
commencement thereof, or (B) such judgment or decree remains
outstanding for a period of 60 days following the entry thereof during
which such judgment or decree is not discharged, waived or the
execution thereof stayed and, in either case, the default continues for
ten days after the date on which the notice specified below shall have
been given.
The foregoing 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 term "Bankruptcy Law" means Title 11, UNITED STATES CODE, or any
similar Federal or state law for the relief of debtors. The term "Insurance Law"
means [CHAPTER 44 OF THE NEBRASKA REVISED STATUTES OF 1943] and all similar
state laws of the State of Nebraska and such other jurisdictions in which the
Company or any Significant Subsidiary conducts business that govern the conduct
or operations of any insurance company, and the rules and regulations
promulgated thereunder. The term "Custodian" means any receiver, trustee,
assignee, liquidator, custodian, conservator, supervisor, rehabilitator,
sequestrator or similar official under any Bankruptcy Law or Insurance Law.
A Default under clause (iii), (iv) or (viii) is not an Event of Default
until the Trustee or the Holders of at least 25% in principal amount of the
outstanding Debentures notify the Company of the Default and the Company does
not cure such Default within the time specified after receipt of such notice.
Such notice must specify the Default, demand that it be remedied and state that
such notice is a "Notice of Default."
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, the lapse of time or both would
become an Event of Default under clause (iii), (iv) or (viii), its status and
what action the Company is taking or proposes to take with respect thereto.
SECTION 5.2 ACCELERATION. If an Event of Default (other than an Event
of Default specified in Section 5.1(v), (vi) or (vii) with respect to the
Company) or any Significant Subsidiary occurs and is continuing, the Trustee
by notice to the Company, or the Holders of at least 25% in principal amount
of the outstanding Debentures by notice to the Company, may declare the
principal of and accrued but unpaid interest on all the Debentures to be due
and payable. Upon such a declaration, such principal and interest shall be
due and payable immediately. If an Event of Default specified in Section
5.1(v) or (vi) with respect to the Company occurs, the principal of and
interest on all the Debentures shall IPSO FACTO become and be immediately due
and payable without any declaration
or other act on the part of the Trustee or any Debentureholders. The Holders of
a majority in principal amount of the Debentures by notice to the Trustee may
rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived except nonpayment of principal or interest that has become
due solely because of acceleration. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
SECTION 5.3 OTHER REMEDIES. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal of or interest on the Debentures or to enforce the performance of
any provision of the Debentures or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Debentures or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Debentureholder in exercising any right or remedy
accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. No remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 5.4 WAIVER OF PAST DEFAULTS. The Holders of a majority in
principal amount of the Debentures by notice to the Trustee may waive an
existing Default and its consequences except (i) a Default or Event of
Default in the payment of the principal of or interest on a Debenture, (ii) a
Default or Event of Default arising from the failure to redeem or purchase
any Debenture when required pursuant to the terms of this Indenture or (iii)
a Default or Event of Default in respect of a provision that under Section
8.2 cannot be amended without the consent of each Debentureholder affected.
When a Default or Event of Default is waived, it is deemed cured, but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any consequent right.
SECTION 5.5 CONTROL BY MAJORITY. The Holders of a majority in principal
amount of the Debentures may direct the time, method and place of conducting any
proceeding for exercising any remedy available to the Trustee or of exercising
any trust or power conferred on the Trustee. However, the Trustee may refuse to
follow any direction that conflicts with law or this Indenture or, subject to
Section 6.1, that the Trustee determines is unduly prejudicial to the rights of
any other Debentureholders or would involve the Trustee in personal liability;
PROVIDED, HOWEVER, that the Trustee may take any other action deemed proper by
the Trustee that is not inconsistent with such direction. Prior to taking any
action hereunder, the Trustee shall be entitled to indemnification satisfactory
to it in its sole discretion against all losses, liabilities and expenses caused
by taking or not taking such action.
SECTION 5.6 LIMITATION ON SUITS. Except to enforce the right to receive
payment of principal, premium (if any) or interest when due, no Debentureholder
may pursue any remedy with respect to this Indenture or the Debentures unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in principal amount of the
Debentures make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of security or
indemnity; and
(5) the Holders of a majority in principal amount of the
Debentures do not give the Trustee a direction inconsistent with the
request during such 60-day period.
A Debentureholder may not use this Indenture to prejudice the rights of
another Debentureholder or to obtain a preference or priority over another
Debentureholder.
SECTION 5.7 RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
principal of and special interest and interest on the Debentures held by such
Holder, on or after the respective due dates expressed in the Debentures, or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder.
SECTION 5.8 COLLECTION SUIT BY TRUSTEE. If an Event of Default
specified in Section 5.1(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount then due and owing (together with interest on any
unpaid interest to the extent lawful) and the amounts provided for in Section
6.7.
SECTION 5.9 TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may file such
proofs of claim and other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee and the Debentureholders allowed in
any judicial proceedings relative to the Company, any Subsidiary, their
respective creditors or their respective property and, unless prohibited by law
or applicable regulations, may vote on behalf of the Holders in any election of
a trustee in bankruptcy or other Person performing similar functions, and any
Custodian in any such judicial proceeding is hereby authorized by each Holder to
make payments to the Trustee and, in the event that the Trustee shall consent to
the making of such payments directly to the Holders, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and its counsel, and any other amounts due
the Trustee under Section 6.7.
SECTION 5.10 PRIORITIES. If the Trustee collects any money or property
pursuant to this Article 5, it shall pay out the money or property in the
following order:
FIRST: to the Trustee for amounts due under Section 6.7;
SECOND: to Debentureholders for amounts due and unpaid on the
Debentures for principal and interest, ratably, and any special interest without
preference or priority of any kind, according to the amounts due and payable on
the Debentures for principal, any special interest and interest, respectively;
and
THIRD: to the Company.
The Trustee may fix a record date and payment date for any payment to
Debentureholders pursuant to this Section. At least 15 days before such record
date, the Trustee shall mail to each Debentureholder and the Company a notice
that states the record date, the payment date and amount to be paid.
SECTION 5.11 UNDERTAKING FOR COSTS. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 5.5 or a suit by Holders of more
than 10% in principal amount of the Debentures.
SECTION 5.12 WAIVER OF STAY OR EXTENSION LAWS. The Company (to the
extent it may lawfully do so) shall not at any time insist upon, or plead, or in
any manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and shall not hinder, delay or impede the execution
of any power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE 6
TRUSTEE
SECTION 6.1 DUTIES OF TRUSTEE.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise 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 Person
would exercise or use under the circumstances in the conduct of such Person's
own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, with respect to any certificates or opinions
that are required by any provisions of this Indenture to be delivered
to the Trustee, the Trustee shall examine the certificates and opinions
to determine whether or not they conform to the requirements of this
Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of
paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 5.2, 5.4 and 5.5.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c) and (g) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated
from other funds except to the extent required by law.
(g) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it shall have reasonable grounds to believe that repayment
of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it.
(h) 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 and to the provisions of the TIA.
(i) In the absence of bad faith, negligence or willful
misconduct on the part of the Trustee, the Trustee shall not be responsible for
the application of any money by any Paying Agent other than the Trustee.
SECTION 6.2 RIGHTS OF TRUSTEE.
(a) The Trustee may rely and shall be fully protected in
acting or refraining from acting on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not
be liable for and shall be fully protected in respect of any action it takes or
omits to take in good faith in reliance on the Officers' Certificate or Opinion
of Counsel.
(c) The Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any attorney or
agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers.
(e) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Debentures shall be full and complete authorization and protection from
liability in respect to any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such counsel.
(f) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
Debenture, note or other paper or document unless requested in writing to do so
by the Holders of not less than a majority in principal amount of the Debentures
at the time outstanding, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney.
(g) The Trustee shall be under no obligation to exercise any
of its rights and powers under this Indenture at the request of any Holder of
Debentures unless such Holder shall have offered to the trustee security and
indemnity satisfactory to the Trustee in its sole discretion against any loss,
liability or expense and then only to the extent required by the terms of this
Indenture. The Trustee shall not be deemed to have any knowledge of a Default or
Event of Default other than (i) any Event of Default occurring pursuant to
Section 5.1(i) or 5.1(ii) or (ii)
any Default or Event of Default of which a Trust Officer shall have received
written notification or obtained actual knowledge.
(h) The Trustee may consult with counsel, and the advice or
opinion of counsel with respect to legal matters relating to this Indenture and
the Debentures shall be full and complete authorization and protection from
liability with respect to any action taken, omitted or suffered by it hereunder
in good faith and in accordance with the advice or opinion of such counsel.
SECTION 6.3 INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its individual
or any other capacity may become the owner or pledgee of Debentures and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee. Any Paying Agent, Registrar, co-registrar or
co-paying agent may do the same with like rights. However, the Trustee must
comply with Sections 6.10 and 6.11.
SECTION 6.4 TRUSTEE'S DISCLAIMER. The Trustee shall not be responsible
for and makes no representation as to the validity or adequacy of this Indenture
or the Debentures, it shall not be accountable for the Company's use of the
proceeds from the Debentures, and it shall not be responsible for any statement
of the Company in this Indenture or in any document issued in connection with
the sale of the Debentures or in the Debentures other than the Trustee's
certificate of authentication.
SECTION 6.5 NOTICE OF DEFAULTS. If a Default occurs and is continuing
and if it is known to the Trustee, the Trustee shall mail to each
Debentureholder notice of the Default within 30 days after it is actually known
to a Trust Officer, but in no event later than 90 days after the occurrence of
the Event of Default. Except in the case of a Default in payment of principal of
or interest on any Debenture (including payments pursuant to the mandatory
redemption provisions of such Debenture, if any, or any accelerated payment of
principal or interest), the Trustee may withhold the notice if and so long as a
committee of its Trust Officers in good faith determines that withholding the
notice is in the interests of Debentureholders. The Trustee shall not be deemed
to have any knowledge of a Default or Event of Default other than (i) any Event
of Default occurring pursuant to Section 5.1(i) or 5.1(ii) or (ii) any Default
or Event of Default of which a Trust Officer shall have received written
notification or obtained actual knowledge.
SECTION 6.6 REPORTS BY TRUSTEE TO HOLDERS. As promptly as practicable
after each March 15 beginning with the March 15 following the date of this
Indenture, and in any event prior to April 15 in each year, the Trustee shall
mail to each Debentureholder a brief report dated as of March 15 that complies
with Section 313(a) of the TIA. The Trustee shall also comply with Section
313(b) of the TIA.
A copy of each report at the time of its mailing to Debentureholders
shall be filed with the SEC and each stock exchange (if any) on which the
Debentures are listed. The Company agrees to notify promptly the Trustee
whenever the Debentures become listed on any stock exchange and of any delisting
thereof.
SECTION 6.7 COMPENSATION AND INDEMNITY. The Company shall pay to the
Trustee from time to time compensation for its services as may be agreed upon by
the Company and the Trustee. The Trustee's compensation shall not be limited by
any law on compensation of a trustee of an express trust. The Company shall
reimburse the Trustee upon request for all reasonable out-of-pocket expenses,
disbursements and advances incurred or made by it, including costs of
collection, in addition to the compensation for its services. Such expenses
shall include the reasonable compensation and expenses, disbursements and
advances of the Trustee's agents, counsel, accountants and experts. The Company
shall indemnify and defend the Trustee, its directors, officers, employees,
stockholders and agents, against any and all loss, liability or expense
(including reasonable attorneys' fee, disbursements and costs of litigation)
incurred by it or any of them arising out of or in connection with the
administration of this trust and the performance of its duties hereunder. The
Trustee shall notify the Company of any claim for which it may seek indemnity
promptly upon obtaining actual knowledge thereof; PROVIDED, HOWEVER, that any
failure so to notify the Company shall not relieve the Company of its indemnity
obligations hereunder. The Company shall defend the claim and the indemnified
party shall provide reasonable cooperation at the Company's expense in the
defense. Such indemnified parties may have separate counsel and the Company
shall pay the fees and expenses of such counsel and costs of litigation;
PROVIDED, HOWEVER, that the Company shall not be required to pay such fees and
expenses if it assumes such indemnified parties' defense and, in such
indemnified parties' reasonable judgment, there is no conflict of interest
between the Company and such parties in connection with such defense. The
Company need not reimburse any expense or indemnify against any loss, liability
or expense incurred by an indemnified party through such party's own willful
misconduct, negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Debentures on all money or property held
or collected by the Trustee other than money or property held in trust to pay
principal of and interest and any liquidated damages on particular Debentures.
The Company's payment obligations pursuant to this Section shall
survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any bankruptcy law or the resignation or
removal of the Trustee. When the Trustee incurs expenses after the occurrence of
a Default specified in Section 5.1(v) or (vi) with respect to the Company, the
expenses are intended to constitute expenses of administration under the
Bankruptcy Law.
SECTION 6.8 REPLACEMENT OF TRUSTEE. The Trustee may resign at any time
by so notifying the Company. The Holders of a majority in principal amount of
the Debentures may remove the Trustee by so notifying the Trustee and may
appoint a successor Trustee. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 6.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of
the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders of
a majority in principal amount of the Debentures 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 notify each Holder
of such event and appoint a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Debentureholders. After the successor Trustee has delivered its
written acceptance of appointment, 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 6.7.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee or the Holders of
10% in principal amount of the Debentures may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 6.10, any Debentureholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 6.7 shall continue for the
benefit of the retiring Trustee.
SECTION 6.9 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 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 Debentures 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 Debentures so authenticated; and in
case at that time any of the Debentures shall not have been authenticated, any
successor to the Trustee may authenticate such Debentures 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 Debentures or in this Indenture provided that the certificate of
the Trustee shall have.
SECTION 6.10 ELIGIBILITY; DISQUALIFICATION. The Trustee shall at all
times satisfy the requirements of TIA ss. 310(a). The Trustee (or in the case of
a corporation or national banking association included in a bank holding company
system, the related bank holding company) shall have a combined capital and
surplus of at least $100,000,000 as set forth in its most recent published
annual report of condition. In addition, if the Trustee is a corporation
included in a banking holding company system, the Trustee, independently of such
bank holding company, shall meet the capital requirements of TIA ss. 310(a)(2).
The Trustee shall comply with TIA ss. 310(B); PROVIDED, HOWEVER, that there
shall be excluded from the operation of TIA ss. 310(b)(1) 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 TIA ss. 310(b)(1) are met.
SECTION 6.11 PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The
Trustee shall comply with TIA ss. 311(a), excluding any creditor relationship
listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be
subject to TIA ss. 311(a) to the extent indicated.
ARTICLE 7
DISCHARGE OF INDENTURE; DEFEASANCE
SECTION 7.1 DISCHARGE OF LIABILITY ON DEBENTURES; DEFEASANCE.
(a) When (i) the Company delivers to the Trustee all
outstanding Debentures (other than Debentures replaced pursuant to Section 2.7)
for cancelation or (ii) all outstanding Debentures have become due and payable,
whether at maturity or as a result of the mailing of a notice of redemption
pursuant to Article 3 hereof and the Company irrevocably deposits with the
Trustee money or U.S. Government Obligations on which payment of principal and
interest when due will be sufficient to pay at maturity or upon redemption all
outstanding Debentures, including interest thereon to maturity or such
redemption date (other than Debentures replaced pursuant to Section 2.7), and if
in either case the Company pays all other sums payable hereunder by the Company,
then this Indenture shall, subject to Section 7.1(c), cease to be of further
effect. The Trustee shall acknowledge satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officers' Certificate and
an Opinion of Counsel and at the cost and expense of the Company.
(b) Subject to Sections 7.1(c) and 7.2, the Company at any
time may terminate (i) all of its obligations under the Debentures and this
Indenture ("legal defeasance option") or (ii) its obligations under Sections
4.2, 4.3, 4.4, 4.5, 4.6 and 4.7 and the operation of Sections 5.1(iii), 5.1(iv),
5.1(vii) and 5.1(viii) ("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
Debentures may not be accelerated because of an Event of Default. If the Company
exercises its covenant defeasance option, payment of the Debentures may not be
accelerated because of an Event of Default specified in Sections 5.1(iii),
5.1(iv) or 5.1(viii).
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 2.3, 2.4, 2.5, 2.6, 2.7, 2.8, 6.7, 6.8 and in this
Article 7 shall survive until the Debentures have been paid in full. Thereafter,
the Company's obligations in Sections 6.7, 7.4 and 7.5 shall survive.
SECTION 7.2 CONDITIONS TO DEFEASANCE. The Company may exercise its
legal defeasance option or its covenant defeasance option only if:
(1) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations for the payment of principal,
premium (if any) and interest on the Debentures to maturity or
redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus
any deposited money without investment will provide cash at such times
and in such amounts as will be sufficient to pay principal and interest
when due on all the Debentures to maturity or redemption, as the case
may be;
(3) 123 days pass after the deposit is made and during the
123-day period no Default specified in Section 5.1(v) or (vi) with
respect to the Company occurs which is continuing at the end of the
period;
(4) the deposit does not constitute a default under any other
agreement binding on the;
(5) 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;
(6) in the case 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, or there has been published by, 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 to the effect that, and based thereon such Opinion
of Counsel shall confirm that, the Debentureholders will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit and 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;
(7) in the case of the covenant defeasance option, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Debentureholders will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit and covenant
defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had
not occurred; and
(8) 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 Debentures as
contemplated by this Article 7 have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Debentures at a future date in
accordance with Article 3.
SECTION 7.3 APPLICATION OF TRUST MONEY. The Trustee shall hold in trust
money or U.S. Government Obligations deposited with it pursuant to this Article
7. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of and interest on the Debentures. Money and Debentures
so held in trust are not subject to Article 9.
SECTION 7.4 REPAYMENT TO COMPANY. The Trustee and the Paying Agent
shall promptly turn over to the Company upon request any excess money U.S.
Government Obligations and Debentures held by them at any time.
Subject to any applicable abandoned property law, the Trustee and the
Paying Agent shall pay to the Company upon written request any money held by
them for the payment of principal or interest that remains unclaimed for two
years, and, thereafter, Debentureholders entitled to the money must look to the
Company for payment as general creditors.
SECTION 7.5 INDEMNITY FOR GOVERNMENT OBLIGATIONS. The Company shall pay
and shall indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against deposited U.S. Government Obligations or the principal and
interest received on such U.S.
Government Obligations.
SECTION 7.6 REINSTATEMENT. If the Trustee or Paying Agent is unable to
apply any money or U.S. Government Obligations in accordance with this Article 7
by reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the
Debentures shall be revived and reinstated as though no deposit had
occurred pursuant to this Article 7 until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with this Article 7; PROVIDED, HOWEVER, that, if the Company has made
any payment of interest on or principal of any Debentures because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Debentures to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE 8
AMENDMENTS
SECTION 8.1 WITHOUT CONSENT OF HOLDERS. The Company and the Trustee may
amend this Indenture or the Debentures without notice to or consent of any
Debentureholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to provide for the assumption by a successor corporation
of the obligations of the Company under this Indenture;
(3) to provide for uncertificated Debentures in addition to or
in place of certificated Debentures; PROVIDED, HOWEVER, that the
uncertificated Debentures are issued in registered form for purposes of
Section 163(f) of the Code or in a manner such that the uncertificated
Debentures are described in Section 163(f)(2)(B) of the Code;
(4) to secure the Debentures;
(5) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon
the Company;
(6) to comply with any requirements of the SEC in connection
with qualifying, or maintaining the qualification of, this Indenture
under the TIA;
(7) to make any change that does not adversely affect the
rights of any Debentureholder in any material respect; or
(8) to provide for the issuance of the Exchange Debentures or
Private Exchange Debentures, which shall have terms substantially
identical in all material respects to the Debentures (except that the
transfer restrictions contained in the Debentures shall be modified or
eliminated, as appropriate), and which shall be treated, together with
any outstanding Debentures, as a single issue of Debentures.
After an amendment under this Section becomes effective, the Company
shall mail to Debentureholders a notice briefly describing such amendment. The
failure to give such notice to all Debentureholders, or any defect therein,
shall not impair or affect the validity of an
amendment under this Section.
SECTION 8.2 WITH CONSENT OF HOLDERS. The Company and the Trustee may
amend this Indenture or the Debentures without notice to any Debentureholder but
with the written consent of the Holders of at least a majority in principal
amount of the Debentures then outstanding (including consents obtained in
connection with a tender offer or exchange offer for the Debentures). However,
without the consent of each Debentureholder affected, an amendment may not:
(1) reduce the amount of Debentures whose Holders must consent
to an amendment or waiver;
(2) reduce the rate of or extend the time for payment of
interest or any special interest on any Debenture;
(3) reduce the principal of or extend the Stated Maturity of
any Debenture;
(4) change the time at which any Debenture may be redeemed in
accordance with Article 3;
(5) make any Debenture payable in money other than that stated
in the Debenture;
(6) make any change in Section 5.4 or 5.7 or the second
sentence of this Section 8.2.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, but it shall
be sufficient if such consent approves the substance thereof.
After an amendment under this Section becomes effective, the Company
shall mail to Debentureholders a notice briefly describing such amendment. The
failure to give such notice to all Debentureholders, or any defect therein,
shall not impair or affect the validity of an amendment under this Section.
SECTION 8.3 COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment to
this Indenture or the Debentures shall comply with the TIA as then in effect.
SECTION 8.4 REVOCATION AND EFFECT OF CONSENTS AND WAIVERS. A consent to
an amendment or a waiver by a Holder of a Debenture shall bind the Holder and
every subsequent Holder of that Debenture or portion of the Debenture that
evidences the same debt as the consenting Holder's Debenture, even if notation
of the consent or waiver is not made on the
Debenture. However, any such Holder or subsequent Holder may revoke the consent
or waiver as to such Holder's Debenture or portion of the Debenture if the
Trustee receives the notice of revocation before the date the amendment or
waiver becomes effective. After an amendment or waiver becomes effective, it
shall bind every Debentureholder. An amendment or waiver becomes effective once
both (i) the requisite number of consents have been received by the Company or
the Trustee and (ii) with respect to amendments, such amendment has been
executed by the Company and the Trustee.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Debentureholders entitled to give their consent
or take any other action described above or 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 Debentureholders 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 after
such record date. No such consent shall be valid or effective for more than 120
days after such record date.
SECTION 8.5 NOTATION ON OR EXCHANGE OF DEBENTURES. If an amendment
changes the terms of a Debenture, the Trustee may require the Holder of the
Debenture to deliver it to the Trustee. The Trustee may place an appropriate
notation on the Debenture regarding the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines, the Company
in exchange for the Debenture shall issue and the Trustee shall authenticate a
new Debenture that reflects the changed terms. Failure to make the appropriate
notation or to issue a new Debenture shall not affect the validity of such
amendment.
SECTION 8.6 TRUSTEE TO SIGN AMENDMENTS. The Trustee shall sign any
amendment authorized pursuant to this Article 9 if the amendment does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may but need not sign it. In signing such amendment the
Trustee shall be entitled to receive indemnity reasonably satisfactory to it and
to receive, and (subject to Section 6.1) shall be fully protected in relying
upon, an Officers' Certificate and an Opinion of Counsel stating that such
amendment is authorized or permitted by this Indenture and that such amendment
is the legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, subject to customary exceptions, and
complies with the provisions hereof (including Section 8.3).
ARTICLE 9
MISCELLANEOUS
SECTION 9.1 TRUST INDENTURE ACT CONTROLS. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 9.2 NOTICES. Any notice or communication shall be in writing
and delivered in person or mailed by first-class mail addressed as follows:
if to the Company:
Chandler (U.S.A.), Inc.
P.O. Box 9
Chandler, Oklahoma 74834
Attention of: R. Patrick Gilmore, General Counsel
if to the Trustee:
U.S. Trust Company of Texas, N.A.
2001 Ross Avenue, Suite 2700
Dallas, Texas 75201
Attention of: Corporate Trust Administration
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Debentureholder shall be mailed
to the Debentureholder at the Debentureholder's address as it appears on the
registration books of the Registrar and shall be sufficiently given if so mailed
within the time prescribed.
Failure to mail a notice or communication to a Debentureholder or any
defect in it shall not affect its sufficiency with respect to other
Debentureholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 9.3 COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Debentureholders may communicate pursuant to TIA ss. 312(b) with other
Debentureholders with respect to their rights under this Indenture or the
Debentures. The Company, the Trustee, the Registrar and anyone else shall have
the protection of TIA ss. 312(c).
SECTION 9.4 CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon
any request or application by the Company to the Trustee to take or refrain from
taking any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate in form and substance
satisfactory to the Trustee stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel in form and substance satisfactory
to the Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
SECTION 9.5 STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each
certificate or
opinion with respect to compliance with a covenant or condition provided for in
this Indenture shall include:
(1) a statement that the individual making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
individual, such covenant or condition has been complied with.
SECTION 9.6 WHEN DEBENTURES DISREGARDED. In determining whether the
Holders of the required principal amount of Debentures have concurred in any
direction, waiver or consent, Debentures owned by the Company or by any Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with the Company shall be disregarded and deemed not to be
outstanding, except that, for the purpose of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Debentures which the Trustee knows are so owned shall be so disregarded. Subject
to the foregoing, only Debentures outstanding at the time shall be considered in
any such determination.
SECTION 9.7 RULES BY TRUSTEE, PAYING AGENT AND REGISTRAR. The Trustee
may make reasonable rules for action by or a meeting of Debentureholders. The
Registrar and the Paying Agent may make reasonable rules for their functions.
SECTION 9.8 LEGAL HOLIDAYS. A "Legal Holiday" is a Saturday, a Sunday
or a day on which banking institutions are not required to be open in the State
of New York or Texas. If a payment date is a Legal Holiday, payment shall be
made on the next succeeding day that is not a Legal Holiday, and no interest
shall accrue for the intervening period on any accrued but unpaid interest. If a
regular record date is a Legal Holiday, the record date shall not be affected.
SECTION 9.9 GOVERNING LAW. THIS INDENTURE AND THE DEBENTURES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE
EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION
WOULD BE REQUIRED THEREBY.
SECTION 9.10 NO RECOURSE AGAINST OTHERS. A director, officer, employee
or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Debentures or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Debenture, each Debentureholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Debentures.
SECTION 9.11 SUCCESSORS. All agreements of the Company in this
Indenture and the Debentures shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
SECTION 9.12 MULTIPLE ORIGINALS. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
SECTION 9.13 TABLE OF CONTENTS; HEADINGS. The table of contents,
cross-reference sheet and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not intended
to be considered a part hereof and shall not modify or restrict any of the terms
or provisions hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed as of the date first written above.
CHANDLER (U.S.A.), INC.
By:
Name:
Title:
U.S. TRUST COMPANY OF TEXAS, N.A.
By:
Name:
Title:
APPENDIX A
PROVISIONS RELATING TO DEBENTURES
1 DEFINITIONS
1.1 DEFINITIONS
For the purposes of this Appendix the following terms shall have the
meanings indicated below:
"Cedel" means Cedel Bank, S.A., or any successor securities clearing
agency.
"Debentures Custodian" means the custodian with respect to a Global
Debenture (as appointed by the Depositary) or any successor person thereto, who
shall initially be the Trustee.
"Definitive Debenture" means a certificated Debenture that does not
include the Global Debenture Legend.
"Depositary" means The Depository Trust Company, its nominees and their
respective successors.
"Euroclear" means the Euroclear Clearance System or any successor
securities clearing agency.
"Global Debenture Legend" means the legend set forth under that caption
in Exhibit I to this Indenture.
"Regulation S" means Regulation S under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Underwriter" means Southwest Securities, Inc.
"Underwriting Agreement" means the Underwriting Agreement dated July
__, between the Company and the Initial Purchaser.
1.2 OTHER DEFINITIONS
TERM: DEFINED IN SECTION:
"Agent Members"................................................2.1(b)
"Global Debenture".............................................2.1(a)
2 THE DEBENTURES
2.1 FORM AND DATING
The Debentures issued on the date hereof will be offered and sold by
the Company pursuant to the Underwriting Agreement.
(a) GLOBAL DEBENTURE. Debentures shall be issued in the form
of one global Debenture in definitive, fully registered form (the "Global
Debenture") without interest coupons and bearing the Global Debenture Legend,
which shall be deposited on behalf of the purchasers of the Debentures
represented thereby with the Debentures Custodian, and registered in the name of
the Depositary or a nominee of the Depositary, duly executed by the Company and
authenticated by the Trustee as provided in this Indenture. The aggregate
principal amount of the Global Debenture may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depositary
or its nominee as hereinafter provided.
(b) BOOK-ENTRY PROVISIONS. This Section 2.1(b) shall apply
only to a Global Debenture deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.1(b) and pursuant to an order of the Company, authenticate and
deliver initially one Global Debenture that (a) shall be registered in the name
of the Depositary for such Global Debenture or the nominee of such Depositary
and (b) shall be delivered by the Trustee to such Depositary or pursuant to such
Depositary's instructions.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to the Global Debenture held on
their behalf by the Depositary or by the Trustee as Debentures Custodian or
under such Global Debenture, and the Depositary may be treated by the Company,
the Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Debenture for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or impair, as between
the Depositary and its Agent Members, the operation of customary practices of
such Depositary governing the exercise of the rights of a holder of a beneficial
interest in the Global Debenture.
(c) DEFINITIVE DEBENTURES. Except as provided in Section 2.3
or 2.4, owners of
beneficial interests in the Global Debenture will not be entitled to receive
physical delivery of certificated Debentures.
2.2 AUTHENTICATION. The Trustee shall authenticate and make available
for delivery upon a written order of the Company signed by two Officers
Debentures for original issue on the date hereof in an aggregate principal
amount of $24,000,000 and such order shall specify the amount of the Debentures
to be authenticated and the date on which the original issue of Debentures is to
be authenticated. The aggregate principal amount of Debentures outstanding at
any time may not exceed $24,000,000 except as provided in Section 2.7 of this
Indenture.
2.3 TRANSFER.
(a) TRANSFER OF DEFINITIVE DEBENTURES. When Definitive
Debentures are presented to the Registrar with a request to register the
transfer of such Definitive Debentures, the Registrar shall register the
transfer as requested if its reasonable requirements for such transaction are
met; PROVIDED, HOWEVER, that the Definitive Debentures surrendered for transfer
shall be duly endorsed or accompanied by a written instrument of transfer in
form reasonably satisfactory to the Company and the Registrar, duly executed
by the Holder thereof or his attorney duly authorized in writing.
(ii) written instructions [FROM THE COMPANY?] directing the
Trustee to make, or to direct the Debentures Custodian to make, an
adjustment on its books and records with respect to such Global
Debenture to reflect an increase in the aggregate principal amount of
the Debentures represented by the Global Debenture, such instructions
to contain information regarding the Depositary account to be credited
with such increase,
then the Trustee shall cancel such Definitive Debenture and cause, or direct the
Debentures Custodian to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Debentures Custodian, the
aggregate principal amount of Debentures represented by the Global Debenture to
be increased by the aggregate principal amount of the Definitive Debenture to be
exchanged and shall credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Global Debenture
equal to the principal amount of the Definitive Debenture so canceled. If the
Global Debenture is not then outstanding and the Global Debenture has not been
previously exchanged for certificated Debentures pursuant to Section 2.4 of this
Appendix A, the Company shall issue and the Trustee shall authenticate, upon
written order of the Company in the form of an Officers' Certificate, a new
Global Debenture in the appropriate principal amount.
(b) TRANSFER OF GLOBAL DEBENTURE. (i) The transfer of the
Global Debenture or beneficial interests therein shall be effected through the
Depositary, in accordance with this Indenture (including applicable restrictions
on transfer set forth herein, if any) and the procedures of the Depositary
therefor. A transferor of a beneficial interest in the Global Debenture shall
deliver a written order given in accordance with the Depositary's procedures
containing information regarding the participant account of the Depositary to be
credited with a beneficial interest in the Global Debenture and such account
shall be credited in accordance with such order with a beneficial interest in
the Global Debenture and the account of the Person making the transfer shall be
debited by an amount equal to the beneficial interest in the Global Debenture.
(ii) Notwithstanding any other provisions of this Appendix
(other than the provisions set forth in Section 2.4), a Global
Debenture may not be transferred as a whole except 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.
(c) CANCELATION OR ADJUSTMENT OF THE GLOBAL DEBENTURE. At such
time as all beneficial interests in the Global Debenture have either been
exchanged for Definitive Debentures, transferred, redeemed, repurchased or
canceled, such Global Debenture shall be returned by the Depositary to the
Trustee for cancelation or retained and canceled by the Trustee. At any time
prior to such cancelation, if any beneficial interest in a Global Debenture is
exchanged for Definitive Debentures, transferred in exchange for an interest in
another Global Debenture, redeemed, repurchased or canceled, the principal
amount of Debentures represented by such Global Debenture shall be reduced and
an adjustment shall be made on the books and records of the Trustee (if it is
then the Debentures Custodian for such Global Debenture) with respect to such
Global Debenture, by the Trustee or the Debentures Custodian, to reflect such
reduction.
(d) OBLIGATIONS WITH RESPECT TO TRANSFERS OF DEBENTURES.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate, Definitive
Debentures and the Global Debenture at the Registrar's request.
(ii) No service charge shall be made for any registration of
transfer, but the Company may require payment of a sum sufficient to
cover any transfer tax, assessments, or similar governmental charge
payable in connection therewith (other than any such transfer taxes,
assessments or similar governmental charge payable upon exchange or
transfer pursuant to Section 2.6 and 8.5).
(iii) Prior to the due presentation for registration of
transfer of any Debenture, the Company, the Trustee, the Paying Agent
or the Registrar may deem and treat the person in whose name a
Debenture is registered as the absolute owner of such Debenture for the
purpose of receiving payment of principal of and interest on such
Debenture and for all other purposes whatsoever, whether or not such
Debenture is overdue, and none of the Company, the Trustee, the Paying
Agent or the Registrar shall be affected by notice to the contrary.
(iv) All Debentures issued upon any transfer pursuant to the
terms of this Indenture shall evidence the same debt and shall be
entitled to the same benefits under this Indenture as the Debentures
surrendered upon such transfer or exchange.
(e) NO OBLIGATION OF THE TRUSTEE.
(i) The Trustee shall have no responsibility or obligation to
any beneficial owner of the Global Debenture, a member of, or a
participant in, the Depositary or any other Person with respect to the
accuracy of the records of the Depositary or its nominee or of any
participant or member thereof, with respect to any ownership interest
in the Debentures or with respect to the delivery to any participant,
member, beneficial owner or other Person (other than the Depositary) of
any notice (including any notice of redemption or repurchase) or the
payment of any amount, under or with respect to such Debentures. All
notices and communications to be given to the Holders and all payments
to be made to Holders under the Debentures shall be given or made only
to the registered Holders (which shall be the Depositary or its nominee
in the case of the Global Debenture). The rights of beneficial owners
in the Global Debenture shall be exercised only through the Depositary
subject to the applicable rules and procedures of the Depositary. The
Trustee may rely and shall be fully protected in relying upon
information furnished by the Depositary with respect to its members,
participants and any beneficial owners.
(ii) The Trustee shall have no obligation or duty to monitor,
determine or
inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with
respect to any transfer of any interest in any Debenture (including any
transfers between or among Depositary participants, members or
beneficial owners in the Global Debenture) other than to require
delivery of such certificates and other documentation or evidence as
are expressly required by, and to do so if and when expressly required
by, the terms of this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
The Trustee may rely and shall be fully protected in relying upon any
certificate, other documentation or other evidence provided to it
pursuant to the terms of this Indenture that it determines
substantially complies as to form with the express requirements of this
Indenture.
2.4 DEFINITIVE DEBENTURES
(a) The Global Debenture deposited with the Depositary as
Debentures Custodian pursuant to Section 2.1 shall be transferred to the
beneficial owners thereof in the form of Definitive Debentures in an aggregate
principal amount equal to the principal amount of the Global Debenture, in
exchange for the Global Debenture, only if such transfer complies with Section
2.3 and (i) the Depositary notifies the Company that it is unwilling or unable
to continue as a Depositary for such Global Debenture or if at any time the
Depositary ceases to be a "clearing agency" registered under the Exchange Act,
and a successor depositary is not appointed by the Company within 90 days of
such notice, or (ii) an Event of Default has occurred and is continuing or (iii)
the Company, in its sole discretion, notifies the Trustee in writing that it
elects to cause the issuance of certificated Debentures under this Indenture.
(b) If the Global Debenture is transferable to the beneficial
owners thereof pursuant to this Section 2.4 and shall be surrendered by the
Depositary to the Trustee, to be so transferred, in whole or from time to time
in part, without charge, then the Trustee shall authenticate and deliver, upon
such transfer of each portion of such Global Debenture, an equal aggregate
principal amount of Definitive Debentures of authorized denominations. Any
portion of the Global Debenture transferred pursuant to this Section shall be
executed, authenticated and delivered only in denominations of $1,000 and any
integral multiple thereof and registered in such names as the Depositary shall
direct.
(c) Subject to the provisions of Section 2.4(b), the
registered Holder of the Global Debenture may grant proxies and otherwise
authorize any Person, including Agent Members and Persons that may hold
interests through Agent Members, to take any action which a Holder is entitled
to take under this Indenture or the Debentures.
(d) In the event of the occurrence of any of the events
specified in Section 2.4(a)(i), (ii) or (iii), the Company will promptly make
available to the Trustee a reasonable supply of Definitive Debentures in fully
registered form without interest coupons.
EXHIBIT I
[FORM OF FACE OF DEBENTURE]
[Global Debenture Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
[THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC")], NEW
YORK, NEW YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF [CEDE & CO.] OR SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO [CEDE &
CO.], OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, [CEDE & CO.], HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE
HEREOF.
No. __________
____% Senior Debentures due 2014
CUSIP No. ______
CHANDLER (U.S.A.), INC., an Oklahoma corporation, promises to pay to
[CEDE & CO.], or registered assigns, the principal sum [OF DOLLARS] [LISTED ON
THE SCHEDULE OF INCREASES OR DECREASES IN GLOBAL DEBENTURE ATTACHED HERETO] on
_________, 2014.
Interest Payment Dates: January 1 and July 1.
Record Dates: December 15 and June 15.
Additional provisions of this Debenture are set forth on the other side
of this Debenture.
IN WITNESS WHEREOF, the parties have caused this instrument to be duly
executed.
CHANDLER (U.S.A.), INC.
By:
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
U.S. TRUST COMPANY OF TEXAS, N.A.
as Trustee, certifies that this is one of
the Debentures referred to in the Indenture.
By
Authorized Signatory
[FORM OF REVERSE SIDE OF DEBENTURE]
_____% Senior Debenture due 2014
1. INTEREST
(a) CHANDLER (U.S.A.), INC., an Oklahoma corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), promises to pay interest on the
principal amount of this Debenture at the rate per annum shown above. The
Company will pay interest semiannually on January 1 and July 1 of each year.
Interest on the Debentures will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from ____________,
1999. Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
2. METHOD OF PAYMENT
The Company will pay interest on the Debentures (except defaulted
interest) to the Persons who are registered holders of Debentures at the close
of business on the December 15 and June 15 next preceding the interest payment
date even if Debentures are canceled after the record date and on or before the
interest payment date. Holders must surrender Debentures to a Paying Agent to
collect principal payments. The Company will pay principal and interest in money
of the United States of America that at the time of payment is legal tender for
payment of public and private debts. Payments in respect of the Debentures
represented by a Global Debenture (including principal, premium and interest)
will be made by wire transfer of immediately available funds to the accounts
specified by The Depository Trust Company. The Company will make all payments in
respect of a certificated Debenture (including principal, premium and interest),
by mailing a check to the registered address of each Holder thereof; PROVIDED,
HOWEVER, that payments on the Debentures may also be made, in the case of a
Holder of at least $1,000,000 aggregate principal amount of Debentures and at
their expense (except for the Global Certificate Holder), by wire transfer to a
U.S. dollar account maintained by the payee with a bank in the United States if
such Holder elects payment by wire transfer by giving written notice to the
Trustee or the Paying Agent to such effect designating such account no later
than 30 days immediately preceding the relevant due date for payment (or such
other date as the Trustee may accept in its discretion).
3. PAYING AGENT AND REGISTRAR
Initially, U.S. TRUST COMPANY OF TEXAS, a national banking association
(the "Trustee"), will act as Paying Agent and Registrar. The Company may appoint
and change any Paying Agent, Registrar or co-registrar without notice. The
Company or any of its domestically incorporated Wholly Owned Subsidiaries may
act as Paying Agent, Registrar or co-registrar.
4. INDENTURE
The Company issued the Debentures under an Indenture dated as of
____, 1999 (the "Indenture"), between the Company and the Trustee. The terms of
the Debentures include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. ss.ss.
77aaa-77bbbb), as amended (the "TIA"). Terms defined in the Indenture and not
defined herein have the meanings ascribed thereto in the Indenture. The
Debentures are subject to all such terms, and Debentureholders are referred to
the Indenture and the TIA for a statement of those terms.
The Debentures are senior unsecured obligations of the Company limited
to $24,000,000 aggregate principal amount at any one time outstanding (subject
to Section 2.7 of the Indenture). The Indenture imposes certain limitations on
the ability of the Company to, among other things, permit its subsidiaries to
incur certain Debt, incur certain Liens and engage in certain Sale and Leaseback
Transactions.
5. OPTIONAL REDEMPTION
The Debentures will not be redeemable at the Company's option prior to
____, 2009. The Debentures will be redeemable at the option of the Company,
in whole or in part at any time after ___________, 2009, on not less than 30 nor
more than 60 days' prior notice, at a redemption price equal to 100% of their
principal amount plus accrued and unpaid interest thereon to the date of
redemption. Interest shall be calculated on the basis of a 360-day year
consisting of twelve 30-day months.
If money sufficient to pay the redemption price of and accrued interest
on all Debentures (or portions thereof) to be redeemed on the redemption date is
deposited with the Trustee on or before the redemption date and certain other
conditions are satisfied, on and after such date interest will cease to accrue
on such Debentures (or such portions thereof) called for redemption.
6. SINKING FUND
The Debentures are not subject to any sinking fund.
7. NOTICE OF REDEMPTION
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the redemption date to each Holder of
Debentures to be redeemed at his or her registered address. Debentures in
denominations larger than $1,000 may be redeemed in part but only in whole
multiples of $1,000. If money sufficient to pay the redemption price of and
accrued interest on all Debentures (or portions thereof) to be redeemed on the
redemption date is deposited with the Paying Agent on or before the redemption
date and certain other conditions are satisfied, on and after such date interest
ceases to accrue on such Debentures (or such portions thereof) called for
redemption.
8. DENOMINATIONS; TRANSFER
The Debentures are in registered form without coupons in denominations
of $1,000 and whole multiples of $1,000. A Holder may transfer Debentures in
accordance with the Indenture. Upon any transfer or exchange, the Registrar and
the Trustee may require a Holder, among other things, to furnish appropriate
endorsements or transfer documents and to pay any taxes required by law or
permitted by the Indenture. The Registrar need not register the transfer of any
Debentures selected for redemption (except, in the case of a Debenture to be
redeemed in part, the portion of the Debenture not to be redeemed) or to
transfer any Debentures for a period of 15 days prior to a selection of
Debentures to be redeemed.
9. PERSONS DEEMED OWNERS
The registered Holder of this Debenture may be treated as the owner of
it for all purposes.
10. UNCLAIMED MONEY
If money for the payment of principal or interest remains unclaimed for
two years, the Trustee or Paying Agent shall pay the money back to the Company
at its written request unless an abandoned property law designates another
Person. After any such payment, Holders entitled to the money must look only to
the Company and not to the Trustee for payment.
11. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Company at any time may terminate
some of or all its obligations under the Debentures and the Indenture if the
Company deposits with the Trustee money or U.S. Government Obligations for the
payment of principal and interest on the Debentures to redemption or maturity,
as the case may be.
12. AMENDMENT, WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Debentures may be amended without prior notice to any
Debentureholder but with the written consent of the Holders of at least a
majority in aggregate principal amount of the outstanding Debentures and (ii)
any default or noncompliance with any provision may be waived with the written
consent of the Holders of at least a majority in principal amount of the
outstanding Debentures. Subject to certain exceptions set forth in the
Indenture, without the consent of any Holder of Debentures, the Company and the
Trustee may amend the Indenture or the Debentures (i) to cure any ambiguity,
omission, defect or inconsistency; (ii) to provide for the assumption by a
successor corporation of the obligations of the Company under the Indenture;
(iii) to provide for uncertificated Debentures in addition to or in place of
certificated Debentures; (iv) to secure the Debentures; (v) to add additional
covenants or to surrender rights and powers conferred on the Company; (vi) to
comply with the
requirements of the SEC in order to effect or maintain the qualification of the
Indenture under the TIA; or (vii) to make any change that does not adversely
affect the rights of any Debentureholder in any material respect.
13. DEFAULTS AND REMEDIES
If an Event of Default occurs (other than an Event of Default
relating to certain events of bankruptcy, insolvency or reorganization of the
Company or any Significant Subsidiary) and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the outstanding Debentures may
declare the principal of and accrued but unpaid interest on all the
Debentures to be due and payable. If an Event of Default relating to certain
events of bankruptcy, insolvency or reorganization of the Company or any
Significant Subsidiary occurs, the principal of and interest on all the
Debentures will become immediately due and payable without any declaration or
other act on the part of the Trustee or any Holders. Under certain
circumstances, the Holders of a majority in principal amount of the
outstanding Debentures may rescind any such acceleration with respect to the
Debentures and its consequences.
If an Event of Default occurs and is continuing, the Trustee will be
under no obligation to exercise any of the rights or powers under the Indenture
at the request or direction of any of the Holders unless such Holders have
offered to the Trustee indemnity or security against any loss, liability or
expense satisfactory to the Trustee in its sole discretion. Except to enforce
the right to receive payment of principal, premium (if any) or interest when
due, no Holder may pursue any remedy with respect to the Indenture or the
Debentures unless (i) such Holder has previously given the Trustee notice that
an Event of Default is continuing, (ii) Holders of at least 25% in principal
amount of the outstanding Debentures have requested the Trustee in writing to
pursue the remedy, (iii) such Holders have offered the Trustee reasonable
security or indemnity against any loss, liability or expense, (iv) the Trustee
has not complied with such request within 60 days after the receipt of the
request and the offer of security or indemnity and (v) the Holders of a majority
in principal amount of the outstanding Debentures have not given the Trustee a
direction inconsistent with such request within such 60-day period. Subject to
certain restrictions, the Holders of a majority in principal amount of the
outstanding Debentures are given the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee or of
exercising any trust or power conferred on the Trustee. The Trustee, however,
may refuse to follow any direction that conflicts with law or the Indenture or
that the Trustee determines is unduly prejudicial to the rights of any other
Holder or that would involve the Trustee in personal liability. Prior to taking
any action under the Indenture, the Trustee will be entitled to indemnification
satisfactory to it in its sole discretion against all losses and expenses caused
by taking or not taking such action.
14. TRUSTEE DEALINGS WITH THE COMPANY
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Debentures and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
15. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Debentures or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Debenture, each
Debentureholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Debentures.
16. AUTHENTICATION
This Debenture shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Debenture.
17. ABBREVIATIONS
Customary abbreviations may be used in the name of a Debentureholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
18. GOVERNING LAW
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
19. CUSIP NUMBERS
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Debentures and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Debentureholders. No representation is
made as to the accuracy of such numbers either as printed on the Debentures or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
THE COMPANY WILL FURNISH TO ANY HOLDER OF DEBENTURES UPON WRITTEN
REQUEST AND WITHOUT CHARGE TO THE HOLDER A COPY OF THE INDENTURE WHICH HAS IN IT
THE TEXT OF THIS DEBENTURE.
EXHIBIT II
ASSIGNMENT FORM
To assign this Debenture, fill in the form below:
I or we assign and transfer this Debenture to
(Print or type assignee's name, address and zip code)
(Insert assignee's soc. sec. or tax I.D. No.)
and irrevocably appoint agent to transfer this Debenture on the books of the
Company. The agent may substitute another to act for him.
Date: ________________ Your Signature:
Sign exactly as your name appears on the other side of this Debenture.
[TO BE ATTACHED TO GLOBAL DEBENTURES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL DEBENTURE
The initial principal amount of this Global Debenture is $[ ].
The following increases or decreases in this Global Debenture have been made:
Date of Amount of decrease in Amount of increase in Principal amount of this Signature of authorized
Exchange Principal Amount of this Principal Amount of this Global Debenture following signatory of Trustee or
Global Debenture Global Debenture such decrease or increase Debentures Custodian