EXHIBIT 4
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AMERADA ▇▇▇▇ CORPORATION
AS THE COMPANY
AND
JPMORGAN CHASE BANK, N.A.
AS TRUSTEE
INDENTURE
DATED AS OF MARCH 1, 2006
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Table of Contents
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ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE...........................1
SECTION 1.01. Definitions................................................1
SECTION 1.02. Other Definitions..........................................6
SECTION 1.03. Incorporation by Reference of Trust Indenture Act..........6
SECTION 1.04. Rules of Construction......................................7
ARTICLE 2 THE SECURITIES.......................................................7
SECTION 2.01. Form and Dating............................................7
SECTION 2.02. Execution and Authentication...............................7
SECTION 2.03. Amount Unlimited; Issuable in Series.......................9
SECTION 2.04. Denomination and Date of Securities; Payments of
Interest.................................................11
SECTION 2.05. Registrar and Paying Agent; Agents Generally..............12
SECTION 2.06. Paying Agent to Hold Money in Trust.......................12
SECTION 2.07. Transfer and Exchange.....................................13
SECTION 2.08. Replacement Securities....................................15
SECTION 2.09. Outstanding Securities....................................16
SECTION 2.10. Temporary Securities......................................16
SECTION 2.11. Cancellation..............................................17
SECTION 2.12. CUSIP Numbers.............................................17
SECTION 2.13. Defaulted Interest........................................17
SECTION 2.14. Series May Include Tranches...............................17
ARTICLE 3 REDEMPTION..........................................................18
SECTION 3.01. Applicability of Article..................................18
SECTION 3.02. Notice of Redemption; Partial Redemptions.................18
SECTION 3.03. Payment of Securities Called for Redemption...............20
SECTION 3.04. Exclusion of Certain Securities from Eligibility
for Selection for Redemption.............................20
SECTION 3.05. Mandatory and Optional Sinking Funds......................21
ARTICLE 4 COVENANTS...........................................................23
SECTION 4.01. Payment of Securities.....................................23
SECTION 4.02. Maintenance of Office or Agency...........................23
SECTION 4.03. Negative Pledge...........................................24
SECTION 4.04. Certain Sale and Lease-back Transactions..................27
SECTION 4.05. Certificate to Trustee....................................28
SECTION 4.06. Reports by the Company....................................28
SECTION 4.07. Delivery of Such Reports..................................28
ARTICLE 5 SUCCESSOR CORPORATION...............................................28
SECTION 5.01. When Company May Merge, Etc...............................28
SECTION 5.02. Successor Substituted.....................................29
(i)
Table of Contents
(continued)
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ARTICLE 6 DEFAULT AND REMEDIES................................................29
SECTION 6.01. Events of Default.........................................29
SECTION 6.02. Acceleration..............................................30
SECTION 6.03. Other Remedies............................................32
SECTION 6.04. Waiver of Past Defaults...................................32
SECTION 6.05. Control by Majority.......................................32
SECTION 6.06. Limitation on Suits.......................................32
SECTION 6.07. Rights of Holders to Receive Payment......................33
SECTION 6.08. Collection Suit by Trustee................................33
SECTION 6.09. Trustee May File Proofs of Claim..........................33
SECTION 6.10. Application of Proceeds...................................34
SECTION 6.11. Restoration of Rights and Remedies........................34
SECTION 6.12. Undertaking for Costs.....................................35
SECTION 6.13. Rights and Remedies Cumulative............................35
SECTION 6.14. Delay or Omission Not Waiver..............................35
ARTICLE 7 TRUSTEE.............................................................35
SECTION 7.01. General...................................................35
SECTION 7.02. Certain Rights of Trustee.................................35
SECTION 7.03. Control by Majority.......................................37
SECTION 7.04. Trustee's Disclaimer......................................37
SECTION 7.05. Notice of Default.........................................37
SECTION 7.06. Reports by Trustee to Holders.............................38
SECTION 7.07. Compensation and Reimbursement............................38
SECTION 7.08. Replacement of Trustee....................................39
SECTION 7.09. Successor Trustee by Merger, Etc..........................40
SECTION 7.10. Eligibility...............................................40
SECTION 7.11. Money Held in Trust.......................................40
ARTICLE 8 DISCHARGE OF INDENTURE..............................................40
SECTION 8.01. Defeasance Within One Year of Payment.....................40
SECTION 8.02. Defeasance................................................41
SECTION 8.03. Covenant Defeasance.......................................42
SECTION 8.04. Application of Trust Money................................43
SECTION 8.05. Repayment to Company......................................43
SECTION 8.06. Reinstatement.............................................43
ARTICLE 9 AMENDMENTS, SUPPLEMENTS AND WAIVERS.................................44
SECTION 9.01. Without Consent of Holders................................44
SECTION 9.02. With Consent of Holders...................................44
SECTION 9.03. Revocation and Effect of Consent..........................45
SECTION 9.04. Notation on or Exchange of Securities.....................46
SECTION 9.05. Trustee to Sign Amendments, Etc...........................46
(ii)
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(continued)
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SECTION 9.06. Conformity with Trust Indenture Act........................46
ARTICLE 10 MISCELLANEOUS......................................................47
SECTION 10.01. Trust Indenture Act of 1939...............................47
SECTION 10.02. Notices...................................................47
SECTION 10.03. Certificate and Opinion as to Conditions
Precedent................................................48
SECTION 10.04. Statements Required in Certificate or Opinion.............48
SECTION 10.05. Evidence of Ownership.....................................48
SECTION 10.06. Rules by Trustee, Paying Agent or Registrar...............49
SECTION 10.07. Payment Date Other than a Business Day....................49
SECTION 10.08. Governing Law.............................................49
SECTION 10.09. No Adverse Interpretation of Other Agreements.............49
SECTION 10.10. Successors................................................49
SECTION 10.11. Duplicate Originals.......................................50
SECTION 10.12. Separability..............................................50
SECTION 10.13. Tables of Contents, Headings, Etc.........................50
SECTION 10.14. Incorporators, Stockholders, Officers and Directors
of Company Exempt from Individual Liability..............50
SECTION 10.15. Judgment Currency.........................................50
Exhibit A Form of Note
(iii)
INDENTURE, dated as of March 1, 2006, between AMERADA ▇▇▇▇
CORPORATION, a Delaware corporation, as the Company, and JPMorgan Chase Bank,
N.A., a National banking association, as Trustee.
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the issue from time to time
of its debentures, notes or other evidences of indebtedness to be issued in one
or more series (the "Securities") up to such principal amount or amounts as may
from time to time be authorized in accordance with the terms of this Indenture
and to provide, among other things, for the authentication, delivery and
administration thereof, the Company has duly authorized the execution and
delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture
and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities
by the Holders thereof, the Company and the Trustee mutually covenant and agree
for the equal and proportionate benefit of the respective Holders from time to
time of the Securities or of any and all series thereof and of the coupons, if
any, appertaining thereto as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Agent" means any Registrar, Paying Agent, Transfer Agent or
Authenticating Agent.
"Attributable Debt" means, when used in connection with a sale and
lease-back transaction referred to in Section 4.04, on any date as of which the
amount thereof is to be determined, the product of (a) the net proceeds from
such sale and lease-back transaction multiplied by (b) a fraction, the numerator
of which is the number of full years of the term of the lease relating to the
property involved in such sale and lease-back transaction (without regard to any
options to renew or extend such term) remaining on the date of the making of
such computation and the denominator of which is the number of full years of the
term of such lease measured from the first day of such term.
"Authorized Newspaper" means a newspaper (which, in the case of The
City of New York, will, if practicable, be The Wall Street Journal (Eastern
Edition) and in the case of London, will, if practicable, be the Financial Times
(London Edition)) published in an official language of the country of
publication customarily published at least once a day for at least five days in
each calendar week and of general circulation in The City of New York or London,
as applicable. If it shall be impractical in the opinion of the Trustee to make
any publication of any notice required hereby in an Authorized Newspaper, any
publication or other notice in lieu
thereof which is made or given with the approval of the Trustee shall constitute
a sufficient publication of such notice.
"Board Resolution" means one or more resolutions of the board of
directors of the Company or any authorized committee thereof, certified by the
secretary or an assistant secretary to have been duly adopted and to be in full
force and effect on the date of certification, and delivered to the Trustee.
"Business Day" means, with respect to any Security, a day, other than
a Saturday or a Sunday, that is not a day on which banking institutions are
authorized or required by law or regulation to close, in the city (or in any of
the cities, if more than one) unless otherwise specified, in which amounts are
payable, as specified in the form of such Security or the city in which the
Corporate Trust Office is located.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's capital stock or equity, including,
without limitation, all Common Stock and Preferred Stock.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" means, with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated, whether
voting or non-voting) of such Person's common stock, whether now outstanding or
issued after the date of this Indenture, including, without limitation, all
series and classes of such common stock.
"Company" means the party named as such in the first paragraph of this
Indenture until a successor replaces it pursuant to Article 5 of this Indenture
and thereafter means the successor.
"Consolidated Current Liabilities" means, with respect to any Person
on any date, all amounts which, in conformity with GAAP, would be classified as
current liabilities on a consolidated balance sheet of such Person and its
consolidated subsidiaries as at such date.
"Consolidated Intangibles" means, with respect to any Person on any
date, all assets of such Person and its consolidated subsidiaries, determined on
a consolidated basis, that would, in conformity with GAAP, be classified as
intangible assets on a consolidated balance sheet of such Person and its
consolidated subsidiaries as at such date, including, without limitation,
unamortized debt discount and expense, unamortized organization and
reorganization expense, costs in excess of the fair market value of acquired
companies, patents, trade or service marks, franchises, trade names, goodwill
and the amount of all write-ups in the book value of assets resulting from any
revaluation thereof.
"Consolidated Net Tangible Assets" means, with respect to any Person
on any date, the amount equal to (a) the amount that would, in conformity with
GAAP, be included as
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assets on the consolidated balance sheet of such Person and its consolidated
subsidiaries as at such date minus (b) the sum of (i) Consolidated Intangibles
of such Person at such date and (ii) Consolidated Current Liabilities of such
Person at such date.
"Corporate Trust Office" means the office of the Trustee at which the
corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date of this Indenture,
located at ▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Default" means any Event of Default and any event that is, or after
notice or passage of time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Registered Global Securities, the
Person designated as Depositary by the Company pursuant to Section 2.03 until a
successor Depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
each Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "DEPOSITARY" as used with respect to the Securities of any
such series shall mean the Depositary with respect to the Registered Global
Securities of that series.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principles in the United
States of America at the date of this instrument.
"Holder" or "Securityholder" means the registered holder of any
Security with respect to Registered Securities and the bearer of any
Unregistered Security or any coupon appertaining thereto, as the case may be.
"Indenture" means this Indenture as originally executed or as it may
be amended or supplemented from time to time by one or more indentures
supplemental to this Indenture entered into pursuant to the applicable
provisions of this Indenture and shall include the forms and terms of the
Securities of each series established as contemplated pursuant to Sections 2.01
and 2.03.
"Non-U.S. Person" means a non-U.S. person for purposes of the United
States Internal Revenue Code.
"Officer" means, with respect to the Company, the chairman of the
board of directors, the president or chief executive officer, any vice
president, the chief financial officer, the treasurer or any assistant
treasurer, or the secretary or any assistant secretary.
"Officers' Certificate" means a certificate signed in the name of the
Company (i) by the chairman of the board of directors, the president or chief
executive officer or a vice president and (ii) by the chief financial officer,
the treasurer or any assistant treasurer, or the secretary or any assistant
secretary, complying with Section 10.04 and delivered to the Trustee. Each such
certificate shall comply with Section 314 of the Trust Indenture Act and include
(except as otherwise expressly provided in this Indenture) the statements
provided in
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Section 10.04. One of the officers giving an Officers' Certificate pursuant to
Section 4.05 shall be the principal executive, financial or accounting officer
of the Company.
"Opinion of Counsel" means a written opinion signed by legal counsel,
who may be an employee of or counsel to the Company, satisfactory to the Trustee
and complying with Section 10.04. Each such opinion shall comply with Section
314 of the Trust Indenture Act and include the statements provided in Section
10.04, if and to the extent required thereby.
"Original Issue Date" of any Security (or portion thereof) means the
earlier of (a) the date of authentication of such Security or (b) the date of
any Security (or portion thereof) for which such Security was issued (directly
or indirectly) on registration of transfer, exchange or substitution.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof pursuant to Section 6.02.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the stated maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Company or its agents upon the issuance of
such Securities.
"Person" means an individual, a corporation, a partnership, a limited
liability company, an association, a trust or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of such Person's preferred or preference stock,
whether now outstanding or issued after the date of the Indenture, including,
without limitation, all series and classes of such preferred or preference
stock.
"Principal" of a Security means the principal amount of, and, unless
the context indicates otherwise, includes any premium payable on, the Security.
"Principal Property" means any oil or gas producing property, onshore
or offshore, or any refining or manufacturing plant owned or leased pursuant to
a capital lease by the Company or any Subsidiary, but shall not include any such
property that has been determined by Board Resolution not to be of material
importance to the business conducted by the Company and its subsidiaries, taken
as a whole, effective as of the date such Board Resolution is adopted.
"Registered Global Security" means a Security evidencing all or a part
of a series of Registered Securities, issued to the Depositary for such series
in accordance with Section 2.02, and bearing the legend prescribed in Section
2.02.
"Registered Security" means any Security registered on the Security
Register.
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"Responsible Officer" means, when used with respect to the Trustee,
any officer of the Trustee with direct responsibility for the administration of
this Indenture, or any other officer of the Trustee to whom any corporate trust
matter is referred because of such officer's knowledge of and familiarity with
the particular subject.
"Restricted Subsidiary" means any Subsidiary which owns or is a lessee
pursuant to a capital lease of any Principal Property.
"Securities" means any of the securities, as defined in the first
paragraph of the recitals hereof, that are authenticated and delivered under
this Indenture and, unless the context indicates otherwise, shall include any
coupon appertaining thereto.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" means, with respect to any Person, any corporation,
association or other business entity of which more than 50% of the outstanding
Voting Stock is owned, directly or indirectly, by such Person and one or more
other Subsidiaries of such Person.
"Trustee" means the party named as such in the first paragraph of this
Indenture until a successor replaces it in accordance with the provisions of
Article 7 and thereafter means such successor.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, as it may be amended from time to time.
"UCC" means the Uniform Commercial Code, as in effect in each
applicable jurisdiction.
"United States Bankruptcy Code" means the Bankruptcy Reform Act of
1978, as amended and as codified in Title 11 of the United States Code, as
amended from time to time hereafter, or any successor federal bankruptcy law.
"Unregistered Security" means any Security other than a Registered
Security.
"U.S. Government Obligations" means securities that are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of an agency or instrumentality
of the United States of America the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States of
America, and shall also include a depository receipt issued by a bank or trust
company as custodian with respect to any such U.S. Government Obligation or a
specific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a depository
receipt; provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depository receipt.
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"Voting Stock" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers or other voting members of the governing body of such Person.
"Yield to Maturity" means, as the context may require, the yield to
maturity (i) on a series of Securities or (ii) if the Securities of a series are
issuable from time to time, on a Security of such series, calculated at the time
of issuance of such series in the case of clause (i) or at the time of issuance
of such Security of such series in the case of clause (ii), or, if applicable,
at the most recent redetermination of interest on such series or on such
Security, and calculated in accordance with the constant interest method or such
other accepted financial practice as is specified in the terms of such Security.
SECTION 1.02. Other Definitions. Each of the following terms is
defined in the section set forth opposite such term:
Term Section
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Authenticating Agent 2.02
Cash Transaction 7.03
Dollars 4.02
Event of Default 6.01
Judgment Currency 10.15
Mandatory Sinking Fund Payment 3.05
Optional Sinking Fund Payment 3.05
Paying Agent 2.05
Record Date 2.04
Registrar 2.05
Required Currency 10.15
Security Register 2.05
Self-liquidating Paper 7.03
Sinking Fund Payment Date 3.05
Tranche 2.14
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the
provision is incorporated by reference in and made a part of this Indenture. The
following terms used in this Indenture that are defined by the Trust Indenture
Act have the following meanings:
"Indenture Securities" means the Securities;
"Indenture Security Holder" means a Holder or a Securityholder;
"Indenture To Be Qualified" means this Indenture;
"Indenture Trustee" or "Institutional Trustee" means the Trustee; and
"Obligor" on the indenture securities means the Company or any other
obligor on the Securities.
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All other terms used in this Indenture that are defined by the Trust
Indenture Act, defined by reference in the Trust Indenture Act to another
statute or defined by a rule of the Commission and not otherwise defined herein
have the meanings assigned to them therein.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(a) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(b) words in the singular include the plural, and words in the plural
include the singular;
(c) "Herein," "Hereof" and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
subdivision;
(d) all references to Sections or Articles refer to Sections or
Articles of this Indenture unless otherwise indicated; and
(e) use of masculine, feminine or neuter pronouns should not be deemed
a limitation, and the use of any such pronouns should be construed to include,
where appropriate, the other pronouns.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities of each series shall be
substantially in such form or forms (not inconsistent with this Indenture) as
shall be established by or pursuant to one or more Board Resolutions or in one
or more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law, or with
any rules of any securities exchange or usage, all as may be determined by the
officers executing such Securities as evidenced by their execution of the
Securities. Any form of Security approved by or pursuant to a Board Resolution
must be acceptable as to form to the Trustee, such acceptance to be evidenced by
the Trustee's authentication of Securities in that form or a certificate signed
by a Responsible Officer of the Trustee and delivered to the Company. Unless
otherwise so established, Unregistered Securities shall have coupons attached.
SECTION 2.02. Execution and Authentication. Two Officers shall execute
the Securities (other than coupons) for the Company by facsimile or manual
signature in the name and on behalf of the Company. The seal of the Company, if
any, shall be reproduced on the Securities. If an Officer whose signature is on
a Security no longer holds that office at the time the Security is
authenticated, the Security shall nevertheless be valid.
The Trustee, at the expense of the Company, may appoint an
authenticating agent acceptable to the Company (the "Authenticating Agent") to
authenticate Securities (other than
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coupons). The Authenticating Agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such Authenticating Agent.
A Security (other than coupons) shall not be valid until the Trustee
or Authenticating Agent manually signs the certificate of authentication on the
Security. The signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series having attached
thereto appropriate coupons, if any, executed by the Company to the Trustee for
authentication together with a written order of the Company to authenticate and
deliver such Securities and the applicable documents referred to below in this
Section, and the Trustee shall thereupon authenticate and deliver such
Securities to or upon the written order of the Company. In authenticating any
Securities of a series, the Trustee shall be entitled to receive prior to the
first authentication of any Securities of such series, and (subject to
Article 7) shall be fully protected in relying upon, unless and until such
documents have been superseded or revoked:
(a) any Board Resolution and/or executed supplemental indenture
referred to in Sections 2.01 and 2.03 by or pursuant to which the forms and
terms of the Securities of that series were established;
(b) an Officers' Certificate setting forth the form or forms and terms
of the Securities, stating that the form or forms and terms of the Securities of
such series have been, or will be when established in accordance with such
procedures as shall be referred to therein, established in compliance with this
Indenture; and
(c) an Opinion of Counsel substantially to the effect that the form or
forms and terms of the Securities of such series have been, or will be when
established in accordance with such procedures as shall be referred to therein,
established in compliance with this Indenture and that the supplemental
indenture, to the extent applicable, and Securities have been duly authorized
and, if executed and authenticated in accordance with the provisions of this
Indenture and delivered to and duly paid for by the purchasers thereof on the
date of such opinion, would be entitled to the benefits of this Indenture and
would be valid and binding obligations of the Company, in each case enforceable
against the Company in accordance with its terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights of creditors generally and subject to the
application of general principles of equity (regardless of whether considered in
a proceeding in equity or at law), including without limitation (i) the possible
unavailability of specific performance, injunctive relief or any other equitable
remedy and (ii) concepts of materiality, reasonableness, good faith and fair
dealing.
The Trustee shall not be required to authenticate the Securities of
any series if the issue thereof will adversely affect the Trustee's own rights,
duties or immunities under the Securities or this Indenture.
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If the Company shall establish pursuant to Section 2.03 that the
Securities of a series or a portion thereof are to be issued in the form of one
or more Registered Global Securities, then the Company shall execute and the
Trustee shall authenticate and deliver one or more Registered Global Securities
that (i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of all of the Securities of such series issued in
such form and not yet canceled, (ii) shall be registered in the name of the
Depositary for such Registered Global Security or Securities or the nominee of
such Depositary, (iii) shall be delivered by the Trustee to such Depositary or
its custodian or pursuant to such Depositary's instructions and (iv) shall bear
a legend substantially to the following effect: "Unless and until it is
exchanged in whole or in part for Securities in definitive registered form, this
Security may not be transferred except as a whole by the Depositary to the
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."
SECTION 2.03. Amount Unlimited; Issuable in Series. The aggregate
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series and each such
series shall rank equally and pari passu with all other unsecured and
unsubordinated debt of the Company. There shall be established in or pursuant to
a Board Resolution or one or more indentures supplemental hereto, prior to the
initial issuance of Securities of any series, subject to the last sentence of
this Section 2.03,
(a) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(b) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture and any
limitation on the ability of the Company to increase such aggregate principal
amount after the initial issuance of the Securities of that series (except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, or upon redemption of, other Securities of the
series pursuant hereto);
(c) the date or dates on which the Principal of the Securities of the
series is payable (which date or dates may be fixed or extendible);
(d) the rate or rates (which may be fixed or variable) per annum at
which the Securities of the series shall bear interest, if any, the date or
dates from which such interest shall accrue, on which such interest shall be
payable and (in the case of Registered Securities) on which a record shall be
taken for the determination of Holders to whom interest is payable and/or the
method by which such rate or rates or date or dates shall be determined;
(e) if other than as provided in Section 4.02, the place or places
where the Principal of and any interest on Securities of the series shall be
payable, any Registered Securities of the series may be surrendered for
exchange, notices, demands to or upon the Company in respect of the Securities
of the series and this Indenture may be served and notice to Holders may be
published;
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(f) the right, if any, of the Company to redeem Securities of the
series, in whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon which
Securities of the series may be so redeemed, pursuant to any sinking fund or
otherwise;
(g) the obligation, if any, of the Company to redeem, purchase or
repay Securities of the series pursuant to any mandatory redemption, sinking
fund or analogous provisions or at the option of a Holder thereof and the price
or prices at which and the period or periods within which and any of the terms
and conditions upon which Securities of the series shall be redeemed, purchased
or repaid, in whole or in part, pursuant to such obligation;
(h) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be issuable;
(i) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(j) if other than the coin or currency in which the Securities of the
series are denominated, the coin or currency in which payment of the Principal
of or interest on the Securities of the series shall be payable or if the amount
of payments of Principal of and/or interest on the Securities of the series may
be determined with reference to an index based on a coin or currency other than
that in which the Securities of the series are denominated, the manner in which
such amounts shall be determined;
(k) if payment of the Principal of and interest on the Securities of
the series shall be payable in currency or currencies other than the currency of
the United States, the manner in which any such currency shall be valued against
other currencies in which any other Securities shall be payable;
(l) whether the Securities of the series or any portion thereof will
be issuable as Registered Securities (and if so, whether such Securities will be
issuable as Registered Global Securities) or Unregistered Securities (with or
without coupons), or any combination of the foregoing, any restrictions
applicable to the offer, sale or delivery of Unregistered Securities or the
payment of interest thereon and, if other than as provided herein, the terms
upon which Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(m) whether and under what circumstances the Company will pay
additional amounts on the Securities of the series held by Non-U.S. persons in
respect of any tax, assessment or governmental charge withheld or deducted and,
if so, whether the Company will have the option to redeem such Securities rather
than pay such additional amounts;
(n) if the Securities of the series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, the form and terms of such certificates,
documents or conditions;
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(o) any trustees, depositaries, authenticating or paying agents,
transfer agents or the registrar or any other agents with respect to the
Securities of the series;
(p) provisions, if any, for the defeasance of the Securities of the
series (including provisions permitting defeasance of less than all Securities
of the series), which provisions may be in addition to, in substitution for, or
inmodification of (or any combination of the foregoing) the provisions of
Article 8;
(q) if the Securities of the series are issuable in whole or in part
as one or more Registered Global Securities, the identity of the Depositary for
such Registered Global Security or Securities;
(r) any addition to or change in events of default or covenants with
respect to the Securities of the series; and
(s) any other terms of the Securities of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and coupons, if any, appertaining
thereto shall be substantially identical, except in the case of Registered
Securities as to date and denomination, except in the case of any Periodic
Offering and except as may otherwise be provided by or pursuant to the Board
Resolution referred to above or as set forth in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time and
unless otherwise provided, a series may be reopened, without the consent of any
Holder, for issuances of additional Securities of such series and such
Securities may be issued from time to time, consistent with the terms of this
Indenture, if so provided by or pursuant to such Board Resolution or in any such
indenture supplemental hereto and any forms and terms of Securities to be issued
from time to time may be completed and established from time to time prior to
the issuance thereof by procedures described in such Board Resolution or
supplemental indenture.
SECTION 2.04. Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.03 or, if not so established with respect to
Securities of any series, in denominations of $1,000 and any integral multiple
thereof. The Securities of each series shall be numbered, lettered or otherwise
distinguished in such manner or in accordance with such plan as the Officers of
the Company executing the same may determine, as evidenced by their execution
thereof.
Each Security shall be dated the date of its authentication. The
Securities of each series shall bear interest, if any, from the date, and such
interest shall be payable on the dates, established as contemplated by
Section 2.03.
The Person in whose name any Registered Security of any series is
registered at the close of business on any record date applicable to a
particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Company shall default in the payment of the
interest due on such interest payment date for
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such series, in which case the provisions of Section 2.13 shall apply. The term
"Record Date" as used with respect to any interest payment date (except a date
for payment of defaulted interest) for the Securities of any series shall mean
the date specified as such in the terms of the Registered Securities of such
series established as contemplated by Section 2.03, or, if no such date is so
established, the fifteenth day next preceding such interest payment date,
whether or not such record date is a Business Day.
SECTION 2.05. Registrar and Paying Agent; Agents Generally. The
Company shall maintain an office or agency where Securities may be presented for
registration, registration of transfer or for exchange (the "Registrar") and an
office or agency where Securities may be presented for payment (the "Paying
Agent"), which shall be in the Borough of Manhattan, The City of New York. The
Company shall cause the Registrar to keep a register of the Registered
Securities and of their registration, transfer and exchange (the "Security
Register"). The Company may have one or more additional Paying Agents or
transfer agents with respect to any series.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture and the Trust Indenture Act that relate to such
Agent. The Company shall give prompt written notice to the Trustee of the name
and address of any Agent and any change in the name or address of an Agent. If
the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act
as such. The Company may remove any Registrar or Paying Agent upon written
notice to such Agent and the Trustee; provided that no such removal shall become
effective until (i) the acceptance of an appointment by a successor Agent to
such Agent as evidenced by an appropriate agency agreement entered into by the
Company and such successor Agent and delivered to the Trustee or (ii) written
notification to the Trustee that the Trustee shall serve as such Agent until the
appointment of a successor Agent in accordance with clause (i) of this proviso.
The Company or any affiliate of the Company may act as Paying Agent or
Registrar; provided that neither the Company nor an affiliate of the Company
shall act as Paying Agent in connection with the defeasance of the Securities or
the discharge of this Indenture under Article 8.
The Company initially appoints the Trustee as Registrar and Paying
Agent. If, at any time, the Trustee is not the Registrar, the Registrar shall
make available to the Trustee ten days prior to each interest payment date and
at such other times as the Trustee may reasonably request the names and
addresses of the Holders as they appear in the Security Register.
SECTION 2.06. Paying Agent to Hold Money in Trust. Not later than
10:00 a.m. New York City time on each due date of any Principal or interest on
any Securities, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such Principal or interest. The
Company shall require each Paying Agent other than the Trustee to agree in
writing that such Paying Agent shall hold in trust for the benefit of the
Holders of such Securities or the Trustee all money held by the Paying Agent for
the payment of Principal of and interest on such Securities and shall promptly
notify the Trustee of any default by the Company in making any such payment. The
Company at any time may require a Paying Agent to pay all money held by it to
the Trustee and account for any funds disbursed, and the Trustee may at any time
during the continuance of any payment default, upon written request to
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a Paying Agent, require such Paying Agent to pay all money held by it to the
Trustee and to account for any funds disbursed. Upon doing so, the Paying Agent
shall have no further liability for the money so paid over to the Trustee. If
the Company or any affiliate of the Company acts as Paying Agent, it will, on or
before each due date of any Principal of or interest on any Securities,
segregate and hold in a separate trust fund for the benefit of the Holders
thereof a sum of money sufficient to pay such Principal or interest so becoming
due until such sum of money shall be paid to such Holders or otherwise disposed
of as provided in this Indenture, and will promptly notify the Trustee in
writing of its action or failure to act as required by this Section.
SECTION 2.07. Transfer and Exchange. Unregistered Securities (except
for any temporary global Unregistered Securities) and coupons (except for
coupons attached to any temporary global Unregistered Securities) shall be
transferable by delivery.
At the option of the Holder thereof, Registered Securities of any
series (other than a Registered Global Security, except as set forth below) may
be exchanged for a Registered Security or Registered Securities of such series
and tenor having authorized denominations and an equal aggregate principal
amount, upon surrender of such Registered Securities to be exchanged at the
agency of the Company that shall be maintained for such purpose in accordance
with Section 2.05 and upon payment, if the Company shall so require, of the
charges hereinafter provided. If the Securities of any series are issued in both
registered and unregistered form, except as otherwise established pursuant to
Section 2.03, at the option of the Holder thereof, Unregistered Securities of
any series may be exchanged for Registered Securities of such series and tenor
having authorized denominations and an equal aggregate principal amount, upon
surrender of such Unregistered Securities to be exchanged at the agency of the
Company that shall be maintained for such purpose in accordance with
Section 4.02, with, in the case of Unregistered Securities that have coupons
attached, all unmatured coupons and all matured coupons in default thereto
appertaining, and upon payment, if the Company shall so require, of the charges
hereinafter provided. At the option of the Holder thereof, if Unregistered
Securities of any series, maturity date, interest rate and original issue date
are issued in more than one authorized denomination, except as otherwise
established pursuant to Section 2.03, such Unregistered Securities may be
exchanged for Unregistered Securities of such series and tenor having authorized
denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Company that shall
be maintained for such purpose in accordance with Section 4.02, with, in the
case of Unregistered Securities that have coupons attached, all unmatured
coupons and all matured coupons in default thereto appertaining, and upon
payment, if the Company shall so require, of the charges hereinafter provided.
Registered Securities of any series may not be exchanged for Unregistered
Securities of such series. Whenever any Securities are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
All Registered Securities presented for registration of transfer,
exchange, redemption or payment shall be duly endorsed by, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder or his or her attorney duly
authorized in writing.
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The Company or the Trustee may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any exchange or registration of transfer of Securities. No service charge
shall be made for any such transaction.
Notwithstanding any other provision of this Section 2.07, unless and
until it is exchanged in whole or in part for Securities in definitive
registered form, a Registered Global Security representing all or a portion of
the Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Registered Global Securities of
any series notifies the Company that it is unwilling or unable to continue as
Depositary for such Registered Global Securities or if at any time the
Depositary for such Registered Global Securities shall no longer be eligible
under applicable law, the Company shall appoint a successor Depositary eligible
under applicable law with respect to such Registered Global Securities. If a
successor Depositary eligible under applicable law for such Registered Global
Securities is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such ineligibility, the Company will
execute, and the Trustee, upon receipt of the Company's order for the
authentication and delivery of definitive Registered Securities of such series
and tenor, will authenticate and deliver Registered Securities of such series
and tenor, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of such Registered Global Securities, in exchange
for such Registered Global Securities.
The Company may at any time and in its sole discretion determine that
any Registered Global Securities of any series shall no longer be maintained in
global form. In such event the Company will execute, and the Trustee, upon
receipt of the Company's order for the authentication and delivery of definitive
Registered Securities of such series and tenor, will authenticate and deliver,
Registered Securities of such series and tenor in any authorized denominations,
in an aggregate principal amount equal to the principal amount of such
Registered Global Securities, in exchange for such Registered Global Securities.
Any time the Registered Securities of any series are not in the form
of Registered Global Securities pursuant to the preceding two paragraphs, the
Company agrees to supply the Trustee with a reasonable supply of certificated
Registered Securities without the legend required by Section 2.02 and the
Trustee agrees to hold such Registered Securities in safekeeping until
authenticated and delivered pursuant to the terms of this Indenture.
If established by the Company pursuant to Section 2.03 with respect to
any Registered Global Security, the Depositary for such Registered Global
Security may surrender such Registered Global Security in exchange in whole or
in part for Registered Securities of the same series and tenor in definitive
registered form on such terms as are acceptable to the Company and such
Depositary. Thereupon, the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge,
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(i) to the Person specified by such Depositary new Registered
Securities of the same series and tenor, of any authorized
denominations as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person's beneficial interest
in the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal
amount of the surrendered Registered Global Security and the aggregate
principal amount of Registered Securities authenticated and delivered
pursuant to clause (i) above.
Registered Securities issued in exchange for a Registered Global
Security pursuant to this Section 2.07 shall be registered in such names and in
such authorized denominations as the Depositary for such Registered Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Company or the Trustee.
The Trustee or such agent shall deliver such Securities to or as directed by the
Persons in whose names such Securities are so registered.
All Securities issued upon any registration of transfer or exchange of
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Notwithstanding anything herein or in the forms or terms of any
Securities to the contrary, none of the Company, the Trustee or any agent of the
Company or the Trustee shall be required to exchange any Unregistered Security
for a Registered Security if such exchange would result in adverse Federal
income tax consequences to the Company (such as, for example, the inability of
the Company to deduct from its income, as computed for Federal income tax
purposes, the interest payable on the Unregistered Securities) under then
applicable United States Federal income tax laws. The Trustee and any such agent
shall be entitled to exclusively rely on an Officers' Certificate and an Opinion
of Counsel in determining such result.
The Registrar shall not be required (i) to issue, authenticate,
register the transfer of or exchange Securities of any series for a period of
15 days before a selection of such Securities to be redeemed or (ii) to register
the transfer of or exchange any Security selected for redemption in whole or in
part.
SECTION 2.08. Replacement Securities. If a defaced or mutilated
Security of any series is surrendered to the Trustee or if a Holder claims that
its Security of any series has been lost, destroyed or wrongfully taken, the
Company shall issue and the Trustee shall authenticate a replacement Security of
such series and tenor and principal amount bearing a number not
contemporaneously outstanding. If required by the Trustee or the Company, an
indemnity bond must be furnished that is sufficient in the judgment of both the
Trustee and the Company to protect the Company, the Trustee and any Agent from
any loss that any of them may suffer if a Security is replaced. The Company may
charge such Holder for its expenses and the expenses of the Trustee (including
without limitation attorneys' fees and expenses) in replacing a Security. In
case any such mutilated, defaced, lost, destroyed or wrongfully taken
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Security has become or is about to become due and payable, the Company in its
discretion may pay such Security instead of issuing a new Security in
replacement thereof.
Every replacement Security is an additional obligation of the Company
and shall be entitled to the benefits of this Indenture.
To the extent permitted by law, the foregoing provisions of this
Section are exclusive with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Securities.
SECTION 2.09. Outstanding Securities. Securities outstanding at any
time are all Securities that have been authenticated by the Trustee except for
those canceled by it, those delivered to it for cancellation and those described
in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.08, it ceases to be
outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Security is held by a protected
purchaser.
If the Paying Agent (other than the Company or an affiliate of the
Company) holds, or the Company holds in trust, on the maturity date or any
redemption date or date for repurchase of the Securities money sufficient to pay
Securities payable or to be redeemed or repurchased on such date, then on and
after such date such Securities shall cease to be outstanding and interest on
them shall cease to accrue.
A Security does not cease to be outstanding because the Company or one
of its affiliates holds such Security, provided, however, that, in determining
whether the Holders of the requisite principal amount of the outstanding
Securities have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Securities owned by the Company or any affiliate of
the Company shall be disregarded and deemed not to be outstanding, except that,
in determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities as to which a Responsible Officer of the Trustee has received written
notice to be so owned shall be so disregarded. Any Securities so owned which are
pledged by the Company, or by any affiliate of the Company, as security for
loans or other obligations, otherwise than to another such affiliate of the
Company, shall be deemed to be outstanding, if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right to act as owner with respect to
such Securities and that the pledgee is not the Company or an affiliate of the
Company.
SECTION 2.10. Temporary Securities. Until definitive Securities of any
series are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities of such series. Temporary Securities of any
series shall be substantially in the form of definitive Securities of such
series but may have insertions, substitutions, omissions and other variations
determined to be appropriate by the Officers executing the temporary Securities,
as evidenced by their execution of such temporary Securities. If temporary
Securities of any series are issued, the Company will cause definitive
Securities of such series to be prepared without unreasonable delay. After the
preparation of definitive Securities of any series, the temporary Securities of
such series shall be exchangeable for definitive Securities of such series and
tenor
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upon surrender of such temporary Securities at the office or agency of the
Company designated for such purpose pursuant to Section 4.02, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of such series and tenor and authorized denominations.
Until so exchanged, the temporary Securities of any series shall be entitled to
the same benefits under this Indenture as definitive Securities of such series.
SECTION 2.11. Cancellation. The Company at any time may deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and may
deliver to the Trustee for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold. The Registrar, any transfer
agent and the Paying Agent shall forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange or payment. The
Trustee shall cancel and dispose of all Securities surrendered for registration
of transfer, exchange, payment or cancellation in accordance with its customary
procedures unless the Company otherwise directs the Trustee in writing. The
Company may not issue new Securities to replace Securities it has paid in full
or delivered to the Trustee for cancellation.
SECTION 2.12. CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" and "CINS" numbers (if then generally in use), and the Trustee shall
use CUSIP numbers or CINS numbers, as the case may be, in notices of redemption
or exchange as a convenience to Holders and no representation shall be made as
to the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption or exchange. The Company shall promptly
notify the Trustee in writing of any changes in the "CUSIP" or "CINS" numbers.
SECTION 2.13. Defaulted Interest. If the Company defaults in a payment
of interest on the Securities, it shall pay, or shall deposit with the Paying
Agent money in immediately available funds sufficient to pay, the defaulted
interest plus (to the extent lawful) any interest payable on the defaulted
interest (as may be specified in the terms thereof, established pursuant to
Section 2.03) to the Persons who are Holders on a subsequent special record
date, which shall mean the 15th day next preceding the date fixed by the Company
for the payment of defaulted interest, whether or not such day is a Business
Day. At least 15 days before such special record date, the Company shall mail to
each Holder and to the Trustee a notice that states the special record date, the
payment date and the amount of defaulted interest to be paid.
SECTION 2.14. Series May Include Tranches. A series of Securities may
include one or more tranches (each a "TRANCHE") of Securities, including
Securities issued in a Periodic Offering. The Securities of different tranches
may have one or more different terms, including authentication dates and public
offering prices, but all the Securities within each such tranche shall have
identical terms, including authentication date and public offering price.
Notwithstanding any other provision of this Indenture, with respect to Sections
2.02 (other than the fourth paragraph thereof) through 2.04, 2.07, 2.08, 2.10,
3.01 through 3.05, 4.02, 6.01 through 6.14, 8.01 through 8.05 and 9.02, if any
series of Securities includes more than one tranche, all provisions of such
sections applicable to any series of Securities shall be deemed
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equally applicable to each tranche of any series of Securities in the same
manner as though originally designated a series unless otherwise provided with
respect to such series or tranche pursuant to Section 2.03. In particular, and
without limiting the scope of the next preceding sentence, any of the provisions
of such sections which provide for or permit action to be taken with respect to
a series of Securities shall also be deemed to provide for and permit such
action to be taken instead only with respect to Securities of one or more
tranches within that series (and such provisions shall be deemed satisfied
thereby), even if no comparable action is taken with respect to Securities in
the remaining tranches of that series.
ARTICLE 3
REDEMPTION
SECTION 3.01. Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.03 for
Securities of such series.
SECTION 3.02. Notice of Redemption; Partial Redemptions. Notice of
redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Company shall be given by mailing
notice of such redemption by first class mail, postage prepaid, at least 30 days
and not more than 60 days prior to the date fixed for redemption to such Holders
of Registered Securities of such series at their last addresses as they shall
appear upon the Security Register. Notice of redemption to the Holders of
Unregistered Securities of any series to be redeemed as a whole or in part who
have filed their names and addresses with the Trustee pursuant to Section
313(c)(2) of the Trust Indenture Act, shall be given by mailing notice of such
redemption, by first class mail, postage prepaid, at least 30 days and not more
than 60 days prior to the date fixed for redemption, to such Holders at such
addresses as were so furnished to the Trustee (and, in the case of any such
notice given by the Company, the Trustee shall make such information available
to the Company for such purpose). Notice of redemption to all other Holders of
Unregistered Securities of any series to be redeemed as a whole or in part shall
be published in an Authorized Newspaper in The City of New York or with respect
to any Security the interest on which is based on the offered quotations in the
interbank Eurodollar market for dollar deposits in an Authorized Newspaper in
London, in each case, once in each of three successive calendar weeks, the first
publication to be not less than 30 days nor more than 60 days prior to the date
fixed for redemption. Any notice which is mailed or published in the manner
herein provided shall be conclusively presumed to have been duly given, whether
or not the Holder receives the notice. Failure to give notice by mail, or any
defect in the notice to the Holder of any Security of a series designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the
principal amount of each Security of such series held by such Holder to be
redeemed, the CUSIP and CINS numbers of the Securities to be redeemed, the date
fixed for redemption, the redemption price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities and, in
the case of Securities with coupons attached thereto, of all coupons
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appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to the mandatory or optional sinking fund, or both, if
such be the case, that interest accrued to the date fixed for redemption will be
paid as specified in such notice and that on and after said date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case
any Security of a series is to be redeemed in part only, the notice of
redemption shall identify the Securities to be redeemed and shall state the
portion of the principal amount thereof to be redeemed and shall state that on
and after the date fixed for redemption, upon surrender of such Security, a new
Security or Securities of such series and tenor in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at
the option of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
At or before 10:00 a.m. New York City time on the redemption date
specified in the notice of redemption given as provided in this Section, the
Company will deposit with the Trustee or with one or more Paying Agents (or, if
the Company is acting as its own Paying Agent, set aside, segregate and hold in
trust as provided in Section 2.06) an amount of money sufficient to redeem on
the redemption date all the Securities of such series so called for redemption
at the appropriate redemption price, together with accrued interest to the date
fixed for redemption. If all of the outstanding Securities of a series are to be
redeemed, the Company will deliver to the Trustee at least 10 days prior to the
last date on which notice of redemption may be given to Holders pursuant to the
first paragraph of this Section 3.02 (or such shorter period as shall be
acceptable to the Trustee) an Officers' Certificate stating that all such
Securities are to be redeemed. If less than all the outstanding Securities of a
series are to be redeemed, the Company will deliver to the Trustee at least
15 days prior to the last date on which notice of redemption may be given to
Holders pursuant to the first paragraph of this Section 3.02 (or such shorter
period as shall be acceptable to the Trustee) an Officers' Certificate stating
the aggregate principal amount of such Securities to be redeemed. In case of a
redemption at the election of the Company prior to the expiration of any
restriction on such redemption, the Company shall deliver to the Trustee, prior
to the giving of any notice of redemption to Holders pursuant to this Section,
an Officers' Certificate stating that such redemption is not prohibited by such
restriction.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, pro rata, by lot or in such manner as it shall deem
appropriate and fair, Securities of such series to be redeemed in whole or in
part. Securities may be redeemed in part in multiples equal to the minimum
authorized denomination for Securities of such series or any multiple thereof.
The Trustee shall, if requested in writing by the Company, promptly notify the
Company in writing of the Securities of such series selected for redemption and,
in the case of any Securities of such series selected for partial redemption,
the principal amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption
of Securities shall relate, in the case of any Security redeemed or to be
redeemed only in part, to the portion of the principal amount of such Security
which has been or is to be redeemed.
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SECTION 3.03. Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and
at the place stated in such notice at the applicable redemption price, together
with interest accrued to the date fixed for redemption, and on and after such
date (unless the Company shall default in the payment of such Securities at the
redemption price, together with interest accrued to such date) interest on the
Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured coupons, if any, appertaining thereto shall be void
and, except as provided in Sections 7.11 and 8.04, such Securities shall cease
from and after the date fixed for redemption to be entitled to any benefit under
this Indenture, and the Holders thereof shall have no right in respect of such
Securities except the right to receive the redemption price thereof and unpaid
interest to the date fixed for redemption. On presentation and surrender of such
Securities at a place of payment specified in said notice, together with all
coupons, if any, appertaining thereto maturing after the date fixed for
redemption, said Securities or the specified portions thereof shall be paid and
redeemed by the Company at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption; provided that payment
of interest becoming due on or prior to the date fixed for redemption shall be
payable, in the case of Securities with coupons attached thereto, to the Holders
of the coupons for such interest upon surrender thereof, and in the case of
Registered Securities, to the Holders of such Registered Securities registered
as such on the relevant record date subject to the terms and provisions of
Sections 2.04 and 2.13 hereof.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant coupons maturing after the
date fixed for redemption, the surrender of such missing coupon or coupons may
be waived by the Company and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of them harmless.
Upon presentation of any Security of any series redeemed in part only,
the Company shall execute and the Trustee shall authenticate and deliver to or
on the order of the Holder thereof, at the expense of the Company, a new
Security or Securities of such series and tenor (with any unmatured coupons
attached), of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so presented.
SECTION 3.04. Exclusion of Certain Securities from Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in a written statement signed by an Officer of the Company and delivered
to the Trustee at least 40 days prior to the last date on which notice of
redemption may be given as being owned of record and beneficially by, and not
pledged or hypothecated by, either (a) the Company or (b) an entity specifically
identified in such written statement as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company.
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SECTION 3.05. Mandatory and Optional Sinking Funds. The minimum amount
of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a "Mandatory Sinking Fund Payment", and any
payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "Optional Sinking Fund
Payment." The date on which a sinking fund payment is to be made is herein
referred to as the "Sinking Fund Payment Date."
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any series of Securities in cash, the Company may at its
option (a) deliver to the Trustee Securities of such series theretofore
purchased or otherwise acquired (except through a mandatory sinking fund
payment) by the Company or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Company and delivered to the Trustee for cancellation pursuant
to Section 2.11, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Company
through any optional sinking fund payment. Securities so delivered or credited
shall be received or credited by the Trustee at the sinking fund redemption
price specified in such Securities.
On or before the sixtieth day next preceding each sinking fund payment
date for any series, or such shorter period as shall be acceptable to the
Trustee, the Company will deliver to the Trustee an Officers' Certificate
(a) specifying the portion of the mandatory sinking fund payment to be satisfied
by payment of cash and the portion to be satisfied by credit of specified
Securities of such series and the basis for such credit, (b) stating that none
of the specified Securities of such series has theretofore been so credited,
(c) stating that no defaults in the payment of interest or Events of Default
with respect to such series have occurred (which have not been waived or cured)
and are continuing and (d) stating whether or not the Company intends to
exercise its right to make an optional sinking fund payment with respect to such
series and, if so, specifying the amount of such optional sinking fund payment
which the Company intends to pay on or before the next succeeding sinking fund
payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Company to be entitled to credit
therefor as aforesaid which have not theretofore been delivered to the Trustee
shall be delivered for cancellation pursuant to Section 2.11 to the Trustee with
such Officers' Certificate (or reasonably promptly thereafter if acceptable to
the Trustee). Such Officers' Certificate shall be irrevocable and upon its
receipt by the Trustee the Company shall become unconditionally obligated to
make all the cash payments or delivery of Securities therein referred to, if
any, on or before the next succeeding sinking fund payment date. Failure of the
Company, on or before any such sixtieth day, to deliver such Officer's
Certificate and Securities specified in this paragraph, if any, shall not
constitute a default but shall constitute, on and as of such date, the
irrevocable election of the Company (i) that the mandatory sinking fund payment
for such series due on the next succeeding sinking fund payment date shall be
paid entirely in cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Company will make no optional
sinking fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or
both) to be made in cash on the next succeeding sinking fund payment date plus
any unused balance of any preceding sinking fund payments made in cash shall
exceed $50,000 (or a lesser sum if the
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Company shall so request in writing with respect to the Securities of any
series), such cash shall be applied on the next succeeding sinking fund payment
date to the redemption of Securities of such series at the sinking fund
redemption price thereof together with accrued interest thereon to the date
fixed for redemption. If such amount shall be $50,000 (or such lesser sum) or
less and the Company makes no such request then it shall be carried over until a
sum in excess of $50,000 (or such lesser sum) is available. The Trustee shall
select, in the manner provided in Section 3.02, for redemption on such sinking
fund payment date a sufficient principal amount of Securities of such series to
absorb said cash, as nearly as may be, and shall (if requested in writing by the
Company) inform the Company of the serial numbers of the Securities of such
series (or portions thereof) so selected. Securities shall be excluded from
eligibility for redemption under this Section if they are identified by
registration and certificate number in an Officers' Certificate delivered to the
Trustee at least 60 days prior to the sinking fund payment date as being owned
of record and beneficially by, and not pledged or hypothecated by either,
(a) the Company or (b) an entity specifically identified in such Officers'
Certificate as directly or indirectly controlling or controlled by or under
direct or indirect common control with the Company. The Company (or the Trustee,
if the Company shall so request the Trustee, in writing in the name and at the
expense of the Company), shall cause notice of redemption of the Securities of
such series to be given in substantially the manner provided in Section 3.02
(and with the effect provided in Section 3.03) for the redemption of Securities
of such series in part at the option of the Company. The amount of any sinking
fund payments not so applied or allocated to the redemption of Securities of
such series shall be added to the next cash sinking fund payment for such series
and, together with such payment, shall be applied in accordance with the
provisions of this Section. Any and all sinking fund moneys held on the stated
maturity date of the Securities of any particular series (or earlier, if such
maturity is accelerated), which are not held for the payment or redemption of
particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the
Principal of, and interest on, the Securities of such series at maturity.
At or before 10:00 a.m. New York City time on each sinking fund
payment date, the Company shall pay to the Trustee in cash or shall otherwise
provide for the payment of all interest accrued to the date fixed for redemption
on Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of
a series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund during the continuance of a
Default in payment of interest on such Securities or of any Event of Default
except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Company a sum
sufficient for such redemption. Except as aforesaid, any moneys in the sinking
fund for such series at the time when any such Default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such Default or Event of Default, be deemed to have been
collected under Article 6 and held for the payment of all such Securities. In
case such Event of Default shall have been waived as provided in Section 6.04 or
the Default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, such moneys shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
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ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities. The Company shall pay the
Principal of and interest on the Securities on the dates and in the manner
provided in the Securities and this Indenture. The interest on Securities with
coupons attached (together with any additional amounts payable pursuant to the
terms of such Securities) shall be payable only upon presentation and surrender
of the several coupons for such interest installments as are evidenced thereby
as they severally mature. The interest on any temporary Unregistered Securities
(together with any additional amounts payable pursuant to the terms of such
Securities) shall be paid, as to the installments of interest evidenced by
coupons attached thereto, if any, only upon presentation and surrender thereof,
and, as to the other installments of interest, if any, only upon presentation of
such Unregistered Securities for notation thereon of the payment of such
interest. The interest on Registered Securities (together with any additional
amounts payable pursuant to the terms of such Securities) shall be payable only
to the Holders thereof and at the option of the Company may be paid by mailing
checks for such interest payable to or upon the written order of such Holders at
their last addresses as they appear on the Security Register of the Company.
Notwithstanding any provisions of this Indenture and the Securities of
any series to the contrary, if the Company and a Holder of any Registered
Security so agree, payments of interest on, and any portion of the Principal of,
such Holder's Registered Security (other than interest payable at maturity or on
any redemption or repayment date or the final payment of Principal on such
Security) shall be made by the Paying Agent, upon receipt from the Company of
immediately available funds by 10:00 a.m., New York City time (or such other
time as may be agreed to between the Company and the Paying Agent), directly to
the Holder of such Security (by Federal funds wire transfer or otherwise) if the
Holder has delivered written instructions to the Trustee at least 15 days prior
to such payment date requesting that such payment will be so made and
designating the bank account to which such payments shall be so made and in the
case of payments of Principal surrenders the same to the Trustee in exchange for
a Security or Securities aggregating the same principal amount as the unredeemed
principal amount of the Securities surrendered. The Trustee shall be entitled to
rely on the last instruction delivered by the Holder pursuant to this Section
4.01 unless a new instruction is delivered 15 days prior to a payment date. The
Company will indemnify and hold each of the Trustee and any Paying Agent
harmless against any loss, liability or expense (including attorneys' fees)
resulting from any act or omission to act on the part of the Company or any such
Holder in connection with any such agreement or from making any payment in
accordance with any such agreement.
The Company shall pay interest on overdue Principal, and interest on
overdue installments of interest, to the extent lawful, at the rate per annum
specified in the Securities.
SECTION 4.02. Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where Securities may be surrendered for registration of transfer or exchange or
for presentation for payment and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company hereby initially designates the Corporate Trust Office of the Trustee,
located in the Borough of Manhattan, The City of New York, as such office or
agency of the
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Company. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 10.02.
The Company will maintain one or more agencies in a city or cities
located outside the United States (including any city in which such an agency is
required to be maintained under the rules of any stock exchange on which the
Securities of any series are listed) where the Unregistered Securities, if any,
of each series and coupons, if any, appertaining thereto may be presented for
payment. No payment on any Unregistered Security or coupon will be made upon
presentation of such Unregistered Security or coupon at an agency of the Company
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States unless, pursuant to
applicable United States laws and regulations then in effect, such payment can
be made without adverse tax consequences to the Company. Notwithstanding the
foregoing, if full payment in United States Dollars ("DOLLARS") at each agency
maintained by the Company outside the United States for payment on such
Unregistered Securities or coupons appertaining thereto is illegal or
effectively precluded by exchange controls or other similar restrictions,
payments in Dollars of Unregistered Securities of any series and coupons
appertaining thereto which are payable in Dollars may be made at an agency of
the Company maintained in the Borough of Manhattan, The City of New York.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of any series may be presented or
surrendered for any or all such purposes and may from time to time rescind such
designations; provided that no such designation or rescission shall in any
manner relieve the Company of its obligation to maintain an office or agency in
the Borough of Manhattan, The City of New York for such purposes. The Company
will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
SECTION 4.03. Negative Pledge. (a) The Company will not, and will not
permit any Restricted Subsidiary to, create or incur any mortgage or pledge, as
security for any indebtedness for borrowed money, on or of any shares of stock
or indebtedness owing by a Restricted Subsidiary or any Principal Property of
the Company or a Restricted Subsidiary, whether such shares of stock or
indebtedness of a Restricted Subsidiary or Principal Property are owned at the
date of this Indenture or hereafter acquired, unless the Company secures or
causes such Restricted Subsidiary to secure the outstanding Securities equally
and ratably with all indebtedness secured by such mortgage or pledge, so long as
such indebtedness shall be so secured; provided, however, that this covenant
shall not apply in the case of:
(i) the creation of any mortgage, pledge or other lien on any
shares of stock or indebtedness of a Subsidiary or any Principal
Property hereafter acquired (including acquisitions by way of merger
or consolidation) by the Company or a Restricted Subsidiary
contemporaneously with such acquisition, or within 360 days
thereafter, to secure or provide for the payment or financing of any
part of the purchase price thereof, or the assumption of any mortgage,
pledge or other lien upon any shares of stock or indebtedness of a
Subsidiary or any Principal
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Property hereafter acquired existing at the time of such acquisition,
or the acquisition of any shares of stock or indebtedness of a
Subsidiary or any Principal Property subject to any mortgage, pledge
or other lien without the assumption thereof, provided that every such
mortgage, pledge or lien referred to in this clause (i) shall attach
only to the shares of stock or indebtedness of a Subsidiary or any
Principal Property so acquired and improvements thereon and accessions
thereto;
(ii) any mortgage, pledge or other lien on any shares of stock
or indebtedness of a Subsidiary or any Principal Property existing at
the date of this Indenture;
(iii) any mortgage, pledge or other lien on any shares of stock
or indebtedness of a Subsidiary or any Principal Property in favor of
the Company or any Restricted Subsidiary;
(iv) any mortgage, pledge or other lien existing on any Principal
Property prior to the acquisition thereof by the Company or any of its
Subsidiaries or existing on any Principal Property of any Person that
becomes a Restricted Subsidiary after the date hereof or on its shares
of stock or indebtedness at or prior to the time such Person becomes a
Restricted Subsidiary; provided that (x) such mortgage, pledge or
other lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Subsidiary, (y) such
mortgage, pledge or other lien shall not apply to any other Principal
Property of the Company or any of its Subsidiaries and (z) such
mortgage, pledge or other lien shall secure only those obligations
which it secures on the date of such acquisition or the date such
Person becomes a Restricted Subsidiary and improvements thereon and
accessions thereto;
(v) liens under workmen's compensation laws, unemployment
insurance laws or similar legislation, or good faith deposits in
connection with bids, tenders, contracts (other than for the repayment
of debt), or deposits to secure public or statutory obligations of the
Company or any Subsidiary, or deposits of cash or obligations of the
United States of America to secure surety and appeal bonds to which
the Company or any Subsidiary is a party or in lieu of such bonds, or
pledges or deposits for similar purposes in the ordinary course of
business, or liens on standard industry terms imposed by charter
parties or under contracts of affreightment, or margin posted to
secure payment or performance under futures, forwards or swap
agreements, and other obligations of a like nature, in each case in
the ordinary course of business, or liens imposed by law, such as
laborers' or other employees, carriers', warehousemen's, mechanics',
materialmen's and vendors' liens and liens arising out of judgments or
awards against the Company or any Subsidiary with respect to which the
Company or such Subsidiary at the time shall be prosecuting an appeal
or proceedings for review and with respect to which it shall have
secured a stay of execution pending such appeal or proceedings for
review, or liens for property taxes not yet subject to penalties for
non-payment or the amount or validity of which is being in good faith
contested
-25-
by appropriate proceedings by the Company or any Subsidiary, as the
case may be, or minor survey exceptions, minor encumbrances, easements
or reservations of, or rights of others for, rights of way, sewers,
electric lines, telegraph and telephone lines and other similar
purposes, or zoning or other restrictions as to the use of real
properties, which liens, exceptions, encumbrances, easements,
reservations, rights and restrictions do not, in the opinion of the
Company, in the aggregate materially detract from the value of said
properties or materially impair their use in the operation of the
business of the Company and its Subsidiaries;
(vi) liens on any oil and/or gas properties or other mineral
interests of the Company or any of its Subsidiaries, whether developed
or undeveloped, arising (x) as security for the Company or such
Subsidiary's costs and expenses incurred by it in connection with the
exploration, development or operation of such properties, in favor of
a person who is conducting the exploration, development or operation
of such properties, or (y) in connection with farmout, dry hole,
bottom hole, communitization, unitization, pooling and operating
agreements and/or other agreements of like general nature incident to
the acquisition, exploration, development and operation of such
properties or as required by regulatory agencies having jurisdiction
in the premises;
(vii) overriding royalties, royalties, production payments, net
profits interests or like interests to be paid out of production from
oil and/or gas properties or other mineral interests of the Company or
any of its Subsidiaries, or to be paid out of the proceeds from the
sale of any such production;
(viii) liens securing indebtedness in connection with any
industrial development bond financing, or pollution control revenue
bond financing, or similar financing transaction; and
(ix) any extension, renewal, or replacement (or successive
extensions, renewals or replacements) in whole or in part of any
mortgage, pledge or other lien referred to in the foregoing clauses
(i) to (viii) inclusive; provided, however, that the principal amount
of debt secured thereby shall not exceed the principal amount of debt
so secured at the time of such extension, renewal or replacement, and
that such extension, renewal or replacement shall be limited to all or
a part of the property which secured the mortgage so extended, renewed
or replaced (plus improvements on and accessions to such property).
(b) Notwithstanding the foregoing provisions of this Section 4.03, the
Company and any one or more Restricted Subsidiaries may issue, assume or
guarantee debt secured by mortgage, pledge or other lien which would otherwise
be subject to the foregoing restrictions in an aggregate amount which, together
with all other debt of the Company and its Restricted Subsidiaries which (if
originally issued, assumed or guaranteed at such time) would otherwise be
subject to the foregoing restrictions and Attributable Debt in respect of sale
and lease-back arrangements not covered by 4.04(a), does not at the time exceed
15% of Consolidated Net Tangible Assets.
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SECTION 4.04. Certain Sale and Lease-back Transactions. (a) The
Company will not, and will not permit any Restricted Subsidiary to, sell or
transfer, directly or indirectly, except to the Company or a Restricted
Subsidiary, any Principal Property as an entirety, and as part of the same
transaction or series of transactions take back a lease of such property, except
a lease for a period of three years or less; provided that, notwithstanding the
foregoing, the Company or any Restricted Subsidiary may sell any such Principal
Property and lease it back for a longer period (i) if the Company or such
Restricted Subsidiary would be entitled, pursuant to the provisions of
Section 4.03(a), to create a mortgage on the property to be leased securing
indebtedness in an amount equal to the Attributable Debt with respect to such
sale and lease-back transaction without equally and ratably securing the
outstanding Securities or (ii) if (A) the Company promptly informs the Trustee
of such transaction, (B) the proceeds of such transaction are at least equal to
the fair value (as determined by Board Resolution of the Company) of such
property and (C) the Company causes an amount equal to the net proceeds of the
sale to be applied to the retirement, within 180 days after receipt of such
proceeds, of indebtedness incurred or assumed by the Company or a Restricted
Subsidiary (including the Securities); provided further that, in lieu of
applying all of or any part of such net proceeds to such retirement, the Company
may, within 75 days after such sale, cancel or deliver or cause to be delivered
to the applicable trustee for cancellation either debentures or notes evidencing
indebtedness of the Company (which may include the Securities) or of a
Restricted Subsidiary previously issued or authenticated and delivered by the
applicable trustee, and not theretofore tendered for sinking fund purposes or
called for a sinking fund or otherwise applied as a credit against an obligation
to redeem or retire such notes or debentures, and an Officers' Certificate
(which shall be delivered to the Trustee and which need not contain the
statements prescribed by Section 10.04) stating that the Company elects to
deliver or cause to be delivered such debentures or notes in lieu of retiring
indebtedness as hereinabove provided. If the Company shall cancel or so deliver
debentures or notes to the applicable trustee and the Company shall duly deliver
such Officers' Certificate, the amount of cash which the Company shall be
required to apply to the retirement of indebtedness under this Section 4.04(a)
shall be reduced by an amount equal to the aggregate of the then applicable
optional redemption prices (not including any optional sinking fund redemption
prices) of such debentures or notes, or, if there are no such redemption prices,
the principal amount of such debentures or notes; provided, that in the case of
debentures or notes which provide for an amount less than the principal amount
thereof to be due and payable upon a declaration of the maturity thereof, such
amount of cash shall be reduced by the amount of principal of such debentures or
notes that would be due and payable as of the date of such application upon a
declaration of acceleration of the maturity thereof pursuant to the terms of the
indenture pursuant to which such debentures or notes were issued.
(b) Notwithstanding the provisions of paragraph (a) of this
Section 4.04, the Company or any Restricted Subsidiary may enter into sale and
lease-back transactions in addition to those permitted by paragraph (a) of this
Section 4.04 without any obligation to retire any outstanding Securities or
other indebtedness, provided that at the time of entering into such sale and
lease-back transactions and after giving effect thereto, the Attributable Debt
in respect of such transactions, together with all other Attributable Debt in
respect of transactions subject to this Section 4.04 and not permitted by
paragraph (a) hereof and all other mortgages, pledges or other liens subject to
Section 4.03 and not permitted by paragraph (a) thereof, does not exceed in
aggregate 15% of Consolidated Net Tangible Assets.
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SECTION 4.05. Certificate to Trustee. The Company will furnish to the
Trustee annually, on or before a date not more than four months after the end of
its fiscal year (which, on the date hereof, is a calendar year), a brief
certificate (which need not contain the statements required by Section 10.04)
from its principal executive, financial or accounting officer as to his or her
knowledge of the compliance of the Company with all conditions and covenants
under this Indenture, (such compliance to be determined without regard to any
period of grace or requirement of notice provided under this Indenture), which
certificate shall comply with the requirements of the Trust Indenture Act.
SECTION 4.06. Reports by the Company. The Company covenants to file
with the Trustee, within 15 days after the Company is required to file the same
with the Commission, copies of the annual reports and of the information,
documents, and other reports which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act.
SECTION 4.07. Delivery of Such Reports. Information and documents to
the Trustee is for informational purposes only, and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to conclusively rely exclusively on an Officers'
Certificate).
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge, Etc. The Company shall not
consolidate with, merge with or into, or sell, convey, transfer, lease or
otherwise dispose of all or substantially all of its property and assets (as an
entirety or substantially as an entirety in one transaction or a series of
related transactions) to, any Person or permit any Person to merge with or into
the Company unless:
(a) either (x) the Company shall be the continuing Person or (y) the
Person (if other than the Company) formed by such consolidation or into which
the Company is merged or that acquired or leased such property and assets of the
Company shall be a corporation organized and validly existing under the laws of
the United States of America or any jurisdiction thereof and shall expressly
assume, by a supplemental indenture, executed and delivered to the Trustee, all
of the obligations of the Company on all of the Securities and under this
Indenture and the Company shall have delivered to the Trustee an Opinion of
Counsel stating that such consolidation, merger or transfer and such
supplemental indenture complies with this provision and that all conditions
precedent provided for herein relating to such transaction have been complied
with and that such supplemental indenture constitutes the legal, valid and
binding obligation of the Company or such successor enforceable against such
entity in accordance with its terms, subject to customary exceptions; and
(b) the Company shall have delivered to the Trustee an Officers'
Certificate to the effect that at the time and immediately after giving effect
to such transaction, no Default shall
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have occurred and be continuing and an Opinion of Counsel as to the matters set
forth in Section 5.01(a).
SECTION 5.02. Successor Substituted. Upon any consolidation or merger,
or any sale, conveyance, transfer, lease or other disposition of all or
substantially all of the property and assets of the Company in accordance with
Section 5.01 of this Indenture, the successor Person formed by such
consolidation or into which the Company is merged or to which such sale,
conveyance, transfer, lease or other disposition is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor Person had been named
as the Company herein and thereafter, except in the case of a lease, the Company
shall be relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default. An "Event of Default" shall occur
with respect to the Securities of any series if:
(a) the Company defaults in the payment of the Principal of any
Security of such series when the same becomes due and payable at maturity, upon
acceleration or redemption, including as a sinking fund installment, or
otherwise;
(b) the Company defaults in the payment of interest on any Security of
such series when the same becomes due and payable, and such default continues
for a period of 30 days;
(c) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in this Indenture with respect to any
Security of such series or in the Securities of such series and such default or
breach continues for a period of 60 consecutive days after written notice to the
Company by the Trustee or to the Company and the Trustee by the Holders of 25%
or more in aggregate principal amount of the Securities of all series affected
thereby;
(d) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or under any mortgage, indenture,
guaranty or instrument under which there may be issued or by which there may be
secured or evidenced any indebtedness for money borrowed by the Company, whether
such indebtedness now exists or shall hereafter be created, which default shall
have resulted in such indebtedness becoming or being declared due and payable
prior to the date on which it would otherwise have become due and payable,
without such indebtedness having been discharged or such acceleration having
been rescinded or annulled within a period of 20 days after there shall have
been given, by registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in principal amount
of the outstanding securities of all series affected thereby a written notice
specifying such default and requiring the Company to cause such indebtedness to
be discharged or such acceleration to be rescinded or annulled and stating that
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such notice is a "Notice of Default" hereunder; provided, that no Event of
Default under this subsection (d) shall be deemed to exist as a result of the
acceleration of any such indebtedness if the principal of and interest on such
indebtedness, when added to the principal of and interest on all other such
indebtedness which has been accelerated as aforesaid (excluding any such
indebtedness which has been discharged or as to which the acceleration has been
duly rescinded or annulled), shall not exceed $50,000,000;
(e) a decree or order by a court having jurisdiction in the premises
adjudging the Company a bankrupt or insolvent, or approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under Federal bankruptcy law or any other applicable
Federal or State law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial part
of its property, or ordering the winding up or liquidation of its affairs is
entered, and continues unstayed and in effect for a period of 60 consecutive
days;
(f) the Company (i) commences a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consents to the entry of an order for relief in an involuntary case under any
such law, (ii) consents to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or for all or substantially all of the property and
assets of the Company or (iii) effects any general assignment for the benefit of
creditors; or
(g) any other Event of Default established pursuant to Section 2.03
with respect to the Securities of such series occurs.
SECTION 6.02. Acceleration. (a) If an Event of Default described in
clauses (a) or (b) of Section 6.01 with respect to the Securities of any series
then outstanding occurs and is continuing, then, and in each and every such
case, except for any series of Securities the principal of which shall have
already become due and payable, either the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Securities of any such affected
series then outstanding hereunder (each such series treated as a separate class)
by notice in writing to the Company (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of any
such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series established
pursuant to Section 2.03) of all Securities of such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
(b) If an Event of Default described in clauses (c), (d) or (g) of
Section 6.01 with respect to the Securities of one or more but not all series
then outstanding, or with respect to the Securities of all series then
outstanding, occurs and is continuing, then, and in each and every such case,
except for any series of Securities the principal of which shall have already
become due and payable, either the Trustee or the Holders of not less than 25%
in aggregate principal amount (or, if the Securities of any such series are
Original Issue Discount Securities, the amount thereof accelerable under this
Section) of the Securities of all such affected series then outstanding
hereunder (treated as a single class) by notice in writing to the Company (and
to the Trustee if given by Securityholders), may declare the entire principal
(or, if the Securities of any
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such series are Original Issue Discount Securities, such portion of the
principal amount as may be specified in the terms of such series established
pursuant to Section 2.03) of all Securities of all such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration the same shall become immediately due and payable.
(c) If an Event of Default described in clause (e) or (f) of
Section 6.01 occurs and is continuing, then the principal amount (or, if any
Securities are Original Issue Discount Securities, such portion of the Principal
as may be specified in the terms thereof established pursuant to Section 2.03)
of all the Securities then outstanding and interest accrued thereon, if any,
shall be and become immediately due and payable, without any notice or other
action by any Holder or the Trustee, to the full extent permitted by applicable
law.
The foregoing provisions, however, are subject to the condition that
if, at any time after the principal (or, if the Securities are Original Issue
Discount Securities, such portion of the Principal as may be specified in the
terms thereof established pursuant to Section 2.03) of the Securities of any
series (or of all the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree for the payment of
the moneys due shall have been obtained or entered as hereinafter provided, the
Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of each such series (or
of all the Securities, as the case may be) and the Principal of any and all
Securities of each such series (or of all the Securities, as the case may be)
which shall have become due otherwise than by acceleration (with interest upon
such Principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest, at the same rate as
the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of each such series to the date
of such payment or deposit) and such amount as shall be sufficient to cover all
amounts owing the Trustee under Section 7.07, and if any and all Events of
Default under the Indenture, other than the non-payment of the Principal of
Securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein, then and in every such case the
Holders of a majority in aggregate principal amount of all the then outstanding
Securities of all such series that have been accelerated (voting as a single
class), by written notice to the Company and to the Trustee, may waive all
defaults with respect to all such series (or with respect to all the Securities,
as the case may be) and rescind and annul such declaration and its consequences,
but no such waiver or rescission and annulment shall extend to or shall affect
any subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the Principal
of any Original Issue Discount Securities shall have been accelerated and
declared due and payable pursuant to the provisions hereof, then, from and after
such declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the Principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the Principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts
owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
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SECTION 6.03. Other Remedies. If a payment default or an Event of
Default with respect to the Securities of any series occurs and is continuing,
the Trustee may pursue, in its own name or as trustee of an express trust, any
available remedy by proceeding at law or in equity to collect the payment of
Principal of and interest on the Securities of such series or to enforce the
performance of any provision of the Securities of such series or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding.
SECTION 6.04. Waiver of Past Defaults. Subject to Sections 6.02, 6.07
and 9.02, the Holders of at least a majority in principal amount (or, if the
Securities are Original Issue Discount Securities, such portion of the principal
as is then accelerable under Section 6.02) of the outstanding Securities of all
series affected (voting as a single class), by notice to the Trustee, may waive
an existing Default or Event of Default with respect to the Securities of such
series and its consequences, except a Default in the payment of Principal of or
interest on any Security as specified in clauses (a) or (b) of Section 6.01 or
in respect of a covenant or provision of this Indenture which cannot be modified
or amended without the consent of the Holder of each outstanding Security
affected. Upon any such waiver, such Default shall cease to exist, and any Event
of Default with respect to the Securities of such series arising therefrom shall
be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereto.
SECTION 6.05. Control by Majority. Subject to Sections 7.01 and
7.02(e)), the Holders of at least a majority in aggregate principal amount (or,
if any Securities are Original Issue Discount Securities, such portion of the
principal as is then accelerable under Section 6.02) of the outstanding
Securities of all series affected (voting as a single class) may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided, that the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further, that
the Trustee may take any other action it deems proper that is not inconsistent
with any directions received from Holders of Securities pursuant to this
Section 6.05.
SECTION 6.06. Limitation on Suits. No Holder of any Security of any
series may institute any proceeding, judicial or otherwise, with respect to this
Indenture or the Securities of such series, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given to the Trustee written notice of
a continuing Event of Default with respect to the Securities of such series;
(b) the Holders of at least 25% in aggregate principal amount of
outstanding Securities of all such series affected shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
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(c) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against any costs, liabilities or
expenses (including the costs and expenses of its counsel) to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(e) during such 60-day period, the Holders of a majority in aggregate
principal amount of the outstanding Securities of all such affected series have
not given the Trustee a direction that is inconsistent with such written
request.
A Holder may not use this Indenture to prejudice the rights of another
Holder or to obtain a preference or priority over such other Holder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder of a Security to
receive payment of Principal of or interest, if any, on such Holder's Security
on or after the respective due dates expressed on such Security, or to bring
suit for the enforcement of any such payment on or after such respective dates,
shall not be impaired or affected without the consent of such Holder.
SECTION 6.08. Collection Suit by Trustee. If an Event of Default with
respect to the Securities of any series in payment of Principal or interest
specified in clause (a) or (b) of Section 6.01 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 (or such portion thereof as specified
in the terms established pursuant to Section 2.03 of Original Issue Discount
Securities) of Principal of, and accrued interest remaining unpaid on, together
with interest on overdue Principal of, and, to the extent that payment of such
interest is lawful, interest on overdue installments of interest on, the
Securities of such series, in each case at the rate or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in such Securities, and
such further amount as shall be sufficient to cover all amounts owing the
Trustee under Section 7.07.
SECTION 6.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
amounts due the Trustee under Section 7.07) and the Holders allowed in any
judicial proceedings relative to the Company (or any other obligor on the
Securities), its creditors or its property and shall be entitled and empowered
to collect and receive any moneys, securities or other property payable or
deliverable upon conversion or exchange of the Securities or upon any such
claims and to distribute the same, and any custodian, receiver, assignee,
trustee, liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it
under Section 7.07. Nothing herein contained shall be deemed to empower the
Trustee to authorize or consent to, or accept or adopt on behalf of any Holder,
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
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SECTION 6.10. Application of Proceeds. Any moneys collected by the
Trustee pursuant to this Article in respect of the Securities of any series
shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on account of Principal
or interest, upon presentation of the several Securities and coupons
appertaining to such Securities in respect of which moneys have been collected
and noting thereon the payment, or issuing Securities of such series and tenor
in reduced principal amounts in exchange for the presented Securities of such
series and tenor if only partially paid, or upon surrender thereof if fully
paid:
First: To the payment of all amounts due the Trustee under
Section 7.07;
Second: In case the Principal of the Securities of such
series in respect of which moneys have been collected shall not have
become and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of
the installments of such interest, with interest (to the extent that
such interest has been collected by the Trustee) upon the overdue
installments of interest at the same rate as the rate of interest or
Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the
Persons entitled thereto, without discrimination or preference;
Third: In case the Principal of the Securities of such
series in respect of which moneys have been collected shall have
become and shall be then due and payable, to the payment of the whole
amount then owing and unpaid upon all the Securities of such series
for Principal and interest, with interest upon the overdue Principal,
and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of such series; and
in case such moneys shall be insufficient to pay in full the whole
amount so due and unpaid upon the Securities of such series, then to
the payment of such Principal and interest or Yield to Maturity,
without preference or priority of Principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over Principal, or of
any installment of interest over any other installment of interest, or
of any Security of such series over any other Security of such series,
ratably to the aggregate of such Principal and accrued and unpaid
interest or Yield to Maturity; and
Fourth: To the payment of the remainder, if any, to the
Company or any other Person lawfully entitled thereto.
SECTION 6.11. Restoration of Rights and Remedies. If the Trustee or
any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then,
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored
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to their former positions hereunder and thereafter all rights and remedies of
the Company, Trustee and the Holders shall continue as though no such proceeding
had been instituted.
SECTION 6.12. 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, in either case in respect to
the Securities of any series, a court may require any party litigant in such
suit (other than the Trustee) to file an undertaking to pay the costs of the
suit, and the court may assess reasonable costs, including reasonable attorneys'
fees, against any party litigant (other than the Trustee) in the suit having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.12 does not apply to a suit by a Holder pursuant to
Section 6.07 or a suit by Holders of more than 10% in principal amount of the
outstanding Securities of such series.
SECTION 6.13. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or wrongfully taken Securities in Section 2.08, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 6.14. Delay or Omission Not Waiver. No delay or omission of
the Trustee or of any Holder to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of
any such Event of Default or an acquiescence therein. Every right and remedy
given by this Article 6 or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders, as the case may be.
ARTICLE 7
TRUSTEE
SECTION 7.01. General. The duties and responsibilities of the Trustee
shall be as provided by the Trust Indenture Act and as set forth herein.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, unless it receives indemnity reasonably
satisfactory to it against any loss, liability or expense. Whether or not
therein expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Article 7.
SECTION 7.02. Certain Rights of Trustee. Subject to Trust Indenture
Act Sections 315(a) through (d):
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, Officers' Certificate,
Opinion of Counsel (or both), statement,
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instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
Person or Persons. The Trustee need not investigate any fact or matter stated in
the document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit;
(b) before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and/or an Opinion of Counsel, which shall conform to
Section 10.04. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such certificate or opinion. Subject to
Sections 7.01 and 7.02, whenever in the administration of the trusts of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof;
(c) the Trustee may act through its attorneys and agents not regularly
in its employ and shall not be responsible for the misconduct or negligence of
any agent or attorney appointed with due care;
(d) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the board of directors of the Company may be evidenced to the
Trustee by a Board Resolution;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be liable to the Holders for any action it
takes or omits to take in good faith that it believes to be authorized or within
its rights or powers or for any action it takes or omits to take in accordance
with the direction of the Holders in accordance with Section 6.05 relating to
the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture;
(g) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(h) prior to the occurrence of an Event of Default hereunder and after
the curing or waiving of all Events of Default, the Trustee shall not be bound
to make any investigation into
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the facts or matters stated in any resolution, certificate, Officers'
Certificate, Opinion of Counsel, Board Resolution, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless requested
in writing so to do by the Holders of not less than a majority in aggregate
principal amount of the Securities of all series affected then outstanding;
provided that, if the payment within a reasonable time to the Trustee of the
costs, expenses or liabilities likely to be incurred by it in the making of such
investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the
Trustee may require reasonable indemnity against such expenses or liabilities as
a condition to proceeding;
(i) The Trustee shall not be charged with knowledge of any Default or
Event of Default with respect to the Securities of any series unless either
(1) a Responsible Officer of the Trustee assigned to the Corporate Trust
Department of the Trustee (or any successor division or department of the
Trustee) shall have actual knowledge of such Default or Event of Default or (2)
written notice of such Default or Event of Default shall have been given to the
Trustee by the Company or any other obligor on the Securities of any series or
by any Holder of the Securities of any series;
(j) The Trustee shall not be liable for any action taken or omitted by
it in good faith and believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Indenture; and
(k) The permissive rights of the Trustee enumerated herein shall not
be construed as duties.
SECTION 7.03. Control by Majority. Subject to Sections 7.01 and
7.02(e), the Holders of at least a majority in aggregate principal amount (or,
if any Securities are Original Issue Discount Securities, such portion of the
principal as is then accelerable under Section 6.02) of the outstanding
Securities of all series affected (voting as a single class) may direct the
time, method and place of conducting any proceeding for any remedy available to
the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Securities of such series by this Indenture; provided, that the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, that may involve the Trustee in personal liability or that the
Trustee determines in good faith may be unduly prejudicial to the rights of
Holders not joining in the giving of such direction; and provided further, that
the Trustee may take any other action it deems proper that is not inconsistent
with any directions received from Holders of Securities pursuant to this
Section 7.03.
SECTION 7.04. Trustee's Disclaimer. The recitals contained herein and
in the Securities (except the Trustee's certificate of authentication) shall be
taken as statements of the Company and not of the Trustee and the Trustee
assumes no responsibility for the correctness of the same. Neither the Trustee
nor any of its agents (i) makes any representation as to the validity or
adequacy of this Indenture or the Securities and (ii) shall be accountable for
the Company's use or application of the proceeds from the Securities.
SECTION 7.05. Notice of Default. If any Default with respect to the
Securities of any series occurs and is continuing and if such Default is known
to the actual knowledge of a
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Responsible Officer with the Corporate Trust Department of the Trustee, the
Trustee shall give to each Holder of Securities of such series notice of such
Default within 90 days after obtaining knowledge of such Default (i) if any
Unregistered Securities of such series are then outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London and (ii) to all Holders of Securities of such series in the manner and
to the extent provided in Section 313(c) of the Trust Indenture Act, unless such
Default shall have been cured or waived before the mailing or publication of
such notice; provided, however, that, (i) except in the case of a Default in the
payment of the Principal of or interest on any Security, the Trustee shall be
protected in withholding such notice if the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders and
(ii) in the case of any Default of the character specified in Section 6.01(c)
with respect to Securities of such series, no such notice to Holders shall be
given until at least 30 days after the occurrence thereof.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after each
May 15, beginning with May 15, 2006, the Trustee shall mail to each Holder as
and to the extent provided in Trust Indenture Act Section 313(c) a brief report
dated as of such May 15, if required by Trust Indenture Act Section 313(a).
SECTION 7.07. Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time such reasonable compensation
for all services rendered by it hereunder as shall be agreed upon in writing
(which compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee (which, for purposes of this SECTION 7.07,
shall include its officers, directors, employees and agents) for, and to hold
it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder, including the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
To secure the Company's payment obligations in this SECTION 7.07, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in SECTION 6.01(f) or 6.01(g), such expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for such services are intended to constitute expenses of
administration under any bankruptcy law.
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In no event shall the Trustee be liable for any indirect, special,
punitive or consequential loss or damage of any kind whatsoever, including, but
not limited to, lost profits, even if the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.
In no event shall the Trustee be liable for any failure or delay in
the performance of its obligations hereunder because of circumstances beyond its
control, including, but not limited to, acts of God, flood, war (whether
declared or undeclared), terrorism, fire, riot, embargo, government action,
including any laws, ordinances, regulations, governmental action or the like
which delay, restrict or prohibit the providing of the services contemplated by
this Indenture.
The provisions of this SECTION 7.07 shall survive the resignation or
removal of the Trustee and the termination of this Indenture.
SECTION 7.08. Replacement of Trustee. A resignation or removal of the
Trustee as Trustee with respect to the Securities of any series and appointment
of a successor Trustee as Trustee with respect to the Securities of any series
shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign as Trustee with respect to the Securities of
any series at any time by so notifying the Company in writing. The Holders of a
majority in principal amount of the outstanding Securities of any series may
remove the Trustee as Trustee with respect to the Securities of such series by
so notifying the Trustee in writing and may appoint a successor Trustee with
respect thereto with the consent of the Company. The Company may remove the
Trustee as Trustee with respect to the Securities of any series if: (i) the
Trustee is no longer eligible under Section 7.10 of this Indenture; (ii) the
Trustee is adjudged a bankrupt or insolvent; (iii) a receiver or other public
officer takes charge of the Trustee or its property; or (iv) the Trustee becomes
incapable of acting.
If the Trustee resigns or is removed as Trustee with respect to the
Securities of any series, or if a vacancy exists in the office of Trustee with
respect to the Securities of any series for any reason, the Company shall
promptly appoint a successor Trustee with respect thereto. Within one year after
the successor Trustee takes office, the Holders of a majority in principal
amount of the outstanding Securities of such series may appoint a successor
Trustee in respect of such Securities to replace the successor Trustee appointed
by the Company. If the successor Trustee with respect to the Securities of any
series does not deliver its written acceptance required by the next succeeding
paragraph of this Section 7.08 within 30 days after the retiring Trustee resigns
or is removed, the retiring Trustee, the Company or the Holders of a majority in
principal amount of the outstanding Securities of such series may petition any
court of competent jurisdiction for the appointment of a successor Trustee with
respect thereto.
A successor Trustee with respect to the Securities of any series shall
deliver a written acceptance of its appointment to the retiring Trustee and to
the Company. Immediately after the delivery of such written acceptance, subject
to the lien provided for in Section 7.07, (i) the retiring Trustee shall
transfer all property held by it as Trustee in respect of the Securities of such
series to the successor Trustee, (ii) the resignation or removal of the retiring
Trustee in
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respect of the Securities of such series shall become effective and (iii) the
successor Trustee shall have all the rights, powers and duties of the Trustee in
respect of the Securities of such series under this Indenture. A successor
Trustee shall mail notice of its succession to each Holder of Securities of such
series.
Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all such rights, powers and trusts referred to in the
preceding paragraph.
The Company shall give notice of any resignation and any removal of
the Trustee with respect to the Securities of any series and each appointment of
a successor Trustee in respect of the Securities of such series to all Holders
of Securities of such series. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee with respect to the
Securities of any series pursuant to this Section 7.08, the Company's
obligations under Section 7.07 shall continue for the benefit of the retiring
Trustee.
SECTION 7.09. Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee with
the same effect as if the successor Trustee had been named as the Trustee
herein.
SECTION 7.10. Eligibility. This Indenture shall always have a Trustee
who satisfies the requirements of Trust Indenture Act Section 310(a). The
Trustee shall have a combined capital and surplus of at least $25,000,000 as set
forth in its most recent published annual report of condition.
SECTION 7.11. Money Held in Trust. 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. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law and except for money held in
trust under Article 8 of this Indenture.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Defeasance Within One Year of Payment. Except as
otherwise provided in this Section 8.01, the Company may terminate its
obligations under the Securities of any series and this Indenture with respect
to Securities of such series if:
(a) all Securities of such series previously authenticated and
delivered (other than destroyed, lost or wrongfully taken Securities of such
series that have been replaced or Securities of such series that are paid
pursuant to Section 4.01 or Securities of such series for whose payment money or
securities have theretofore been held in trust and thereafter repaid to the
Company, as provided in Section 8.05) have been delivered to the Trustee for
cancellation and the Company has paid all sums payable by it hereunder; or
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(b) (i) the Securities of such series mature within one year or all of
them are to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (ii) the
Company irrevocably deposits in trust with the Trustee, as trust funds solely
for the benefit of the Holders of such Securities for that purpose, money or
U.S. Government Obligations or a combination thereof sufficient (unless such
funds consist solely of money, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee), without consideration of any reinvestment, to pay
Principal of and interest on the Securities of such series to maturity or
redemption, as the case may be, and to pay all other sums payable by it
hereunder, and (iii) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all conditions
precedent provided for herein relating to the satisfaction and discharge of this
Indenture with respect to the Securities of such series have been complied with.
With respect to the foregoing clause (a), only the Company's
obligations under Section 7.07 in respect of the Securities of such series shall
survive. With respect to the foregoing clause (b), only the Company's
obligations in Sections 2.02 through 2.12, 4.02, 7.07, 7.08 and 8.05 in respect
of the Securities of such series shall survive until such Securities of such
series are no longer outstanding. Thereafter, only the Company's obligations in
Sections 7.07 and 8.05 in respect of the Securities of such series shall
survive. After any such irrevocable deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of such series and this Indenture with respect to the Securities of
such series except for those surviving obligations specified above.
SECTION 8.02. Defeasance. Except as provided below, the Company will
be deemed to have paid and will be discharged from any and all obligations in
respect of the Securities of any series and the provisions of this Indenture
will no longer be in effect with respect to the Securities of such series (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same); provided that the following conditions shall have been
satisfied:
(a) the Company has irrevocably deposited in trust with the Trustee as
trust funds solely for the benefit of the Holders of the Securities of such
series, for payment of the Principal of and interest on the Securities of such
series, money or U.S. Government Obligations or a combination thereof sufficient
(unless such funds consist solely of money, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee) without consideration of any
reinvestment and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee, to pay and
discharge the Principal of and accrued interest on the outstanding Securities of
such series to maturity or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
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(d) the Company shall have delivered to the Trustee (i) either (x) a
ruling directed to the Trustee received from the Internal Revenue Service to the
effect that the Holders of the Securities of such series will not recognize
income, gain or loss for federal income tax purposes as a result of the
Company's exercise of its option under this Section 8.02 and will be subject to
federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such deposit and defeasance had not
occurred or (y) an Opinion of Counsel to the same effect as the ruling described
in clause (x) above and (ii) an Opinion of Counsel to the effect that the
Holders of the Securities of such series have a valid security interest in the
trust funds subject to no prior liens under the UCC; and
(e) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the defeasance contemplated by this Section 8.02
of the Securities of such series have been complied with.
The Company's obligations in Sections 2.02 through 2.12, 4.02, 7.07,
7.08 and 8.05 with respect to the Securities of such series shall survive until
such Securities are no longer outstanding. Thereafter, only the Company's
obligations in Sections 7.07 and 8.05 shall survive.
SECTION 8.03. Covenant Defeasance. The Company may omit to comply with
any term, provision or condition set forth in Sections 4.03 or 4.04 (or any
other specific covenant relating to such series provided for in a Board
Resolution or supplemental indenture pursuant to Section 2.03), and such
omission shall be deemed not to be an Event of Default under clauses (c) or (g)
of Section 6.01, and clause (d) of Section 6.01 will no longer be applicable
with respect to the outstanding Securities of a series, if:
(a) the Company has irrevocably deposited in trust with the Trustee as
trust funds solely for the benefit of the Holders of the Securities of such
series, for payment of the Principal of and interest, if any, on the Securities
of such series, money or U.S. Government Obligations or a combination thereof in
an amount sufficient (unless such funds consist solely of money, in the opinion
of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee) without consideration of
any reinvestment and after payment of all federal, state and local taxes or
other charges and assessments in respect thereof payable by the Trustee, to pay
and discharge the Principal of and interest on the outstanding Securities of
such series to maturity or earlier redemption (irrevocably provided for under
arrangements satisfactory to the Trustee), as the case may be;
(b) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement or
instrument to which the Company is a party or by which it is bound;
(c) no Default with respect to the Securities of such series shall
have occurred and be continuing on the date of such deposit;
(d) the Company has delivered to the Trustee an Opinion of Counsel to
the effect that (i) the Holders of the Securities of such series have a valid
security interest in the trust funds subject to no prior liens under the UCC and
(ii) such Holders will not recognize income, gain or
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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 amount and in
the same manner and at the same times as would have been the case if such
deposit and defeasance had not occurred; and
(e) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the covenant defeasance contemplated by this
Section 8.03 of the Securities of such series have been complied with.
SECTION 8.04. Application of Trust Money. Subject to Section 8.05, the
Trustee or Paying Agent shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01, 8.02 or 8.03, as the case may be, in
respect of the Securities of any series and shall apply the deposited money and
the proceeds from deposited U.S. Government Obligations in accordance with the
Securities of such series and this Indenture to the payment of Principal of and
interest on the Securities of such series; but such money need not be segregated
from other funds except to the extent required by law.
SECTION 8.05. Repayment to Company. Subject to Sections 7.07, 8.01,
8.02 and 8.03, the Trustee and the Paying Agent shall promptly pay to the
Company upon request set forth in an Officers' Certificate any money held by
them at any time and not required to make payments hereunder and thereupon shall
be relieved from all liability with respect to such money. The Trustee and the
Paying Agent shall pay to the Company upon written request, subject to
applicable abandoned property laws, any money held by them and required to make
payments hereunder under this Indenture that remains unclaimed for two years;
provided that the Trustee or such Paying Agent before being required to make any
payment may cause to be published at the expense of the Company once in an
Authorized Newspaper in The City of New York or with respect to any Security the
interest on which is based on the offered quotations in the interbank Eurodollar
market for dollar deposits in an Authorized Newspaper in London or mail to each
Holder entitled to such money at such Holder's address (as set forth in the
Security Register) notice that such money remains unclaimed and that after a
date specified therein (which shall be at least 30 days from the date of such
publication or mailing) any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company, Holders entitled to such
money must look to the Company for payment as general creditors unless an
applicable law designates another Person, and all liability of the Trustee and
such Paying Agent with respect to such money shall cease.
SECTION 8.06. Reinstatement. If the Trustee or Paying Agent is unable
to apply any money or U.S. Government Obligations in accordance with Section
8.04 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 Securities of the applicable series shall be revived and reinstated as
though no deposit had occurred pursuant to Sections 8.01, 8.02 or 8.03, as the
case may be, until such time as the Trustee or Paying Agent is permitted to
apply all such money or U.S. Government Obligations in accordance with Section
8.04; provided that, if the Company has made any payment of Principal of or
interest on the Securities of any series because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
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such Securities to receive such payment from the money or U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders. The Company and the Trustee
may amend or supplement this Indenture or the Securities of any series without
notice to or the consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency in this Indenture;
provided that such amendments or supplements shall not, as evidenced by an
Opinion of Counsel, materially and adversely affect the interests of the
Holders;
(b) to comply with Article 5;
(c) to comply with any requirements of the Commission in connection
with the qualification of this Indenture under the Trust Indenture Act;
(d) to evidence and provide for the acceptance of appointment
hereunder with respect to the Securities of any or all series by a successor
Trustee;
(e) to establish the form or forms or terms of Securities of any
series or of the coupons appertaining to such Securities as permitted by
Section 2.03;
(f) to provide for uncertificated or Unregistered Securities and to
make all appropriate changes for such purpose;
(g) to issue additional Securities of a series previously established,
as provided in Section 2.03 hereof; and
(h) to make any change that does not, as evidenced by an Opinion of
Counsel, materially and adversely affect the rights of any Holder of any series
of Securities, including without limitation, to add the covenants or other
obligations of the Company, to add co-obligors or guarantors for the benefit or
the Holders or to secure the Securities.
SECTION 9.02. With Consent of Holders. Subject to Section 6.07,
without prior notice to any Holders, the Company and the Trustee may amend this
Indenture and the Securities of any series with the written consent of the
Holders of a majority in principal amount of the outstanding Securities of all
series affected by such supplemental indenture (all such series voting as one
class), and the Holders of a majority in principal amount of the outstanding
Securities of all series affected thereby (all such series voting as one class)
by written notice to the Trustee may waive future compliance by the Company with
any provision of this Indenture or the Securities of such series.
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Notwithstanding the provisions of this Section 9.02, without the
consent of each Holder affected thereby, an amendment or waiver, including a
waiver pursuant to Section 6.04, may not:
(a) extend the stated maturity of the Principal of, or any sinking
fund obligation or any installment of interest on, such Holder's Security, or
reduce the Principal amount thereof or the rate of interest thereon (including
any amount in respect of original issue discount), or any premium payable with
respect thereto, or reduce the amount of the Principal of an Original Issue
Discount Security that would be due and payable upon an acceleration of the
maturity thereof pursuant to Section 6.02 or the amount thereof provable in
bankruptcy, or change any place of payment where, or the currency in which, any
Security or any premium or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the due
date therefor;
(b) reduce the percentage in principal amount of outstanding
Securities of the relevant series the consent of whose Holders is required for
any such supplemental indenture, for any waiver of compliance with certain
provisions of this Indenture or certain Defaults and their consequences provided
for in this Indenture;
(c) waive a Default in the payment of Principal of or interest on any
Security of such Holder; or
(d) modify any of the provisions of this Section 9.02, except to
increase any such percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
outstanding Security affected thereby.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of Holders of Securities of such series with respect to such covenant
or provision, shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or of the coupons appertaining to
such Securities.
It shall not be necessary for the consent of any Holder under this
Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section 9.02
becomes effective, the Company shall give to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. The Company will
mail supplemental indentures to Holders upon request. Any failure of the Company
to mail such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture or waiver.
SECTION 9.03. Revocation and Effect of Consent. Until an amendment or
waiver becomes effective, a consent to it by a Holder is a continuing consent by
the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the Security of the consenting Holder, even if
notation of the consent is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to its
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Security or portion of its Security. Such revocation shall be effective only if
the Trustee receives the notice of revocation before the date the amendment,
supplement or waiver becomes effective. An amendment, supplement or waiver shall
become effective with respect to any Securities affected thereby on receipt by
the Trustee of written consents from the requisite Holders of outstanding
Securities affected thereby.
The Company may, but shall not be obligated to, fix a record date
(which may be more than 60 days prior to the solicitation of consents) for the
purpose of determining the Holders of the Securities of any series affected
entitled to consent to any amendment, supplement or waiver. If a record date is
fixed, then, notwithstanding the immediately preceding paragraph, those Persons
who were such Holders at such record date (or their duly designated proxies) and
only those Persons shall be entitled to consent to such amendment, supplement or
waiver or to revoke any consent previously given, whether or not such Persons
continue to be such Holders after such record date. No such consent shall be
valid or effective for more than 180 days after such record date.
After an amendment, supplement or waiver becomes effective with
respect to the Securities of any series affected thereby, it shall bind every
Holder of such Securities unless it is of the type described in any of clauses
(a) through (d) of Section 9.02. In case of an amendment or waiver of the type
described in clauses (a) through (d) of Section 9.02, the amendment or waiver
shall bind each such Holder who has consented to it and every subsequent Holder
of a Security that evidences the same indebtedness as the Security of the
consenting Holder.
SECTION 9.04. Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of any Security, the Trustee may require
the Holder thereof to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Security about the changed terms and return it to
the Holder and the Trustee may place an appropriate notation on any Security of
such series thereafter authenticated. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Security shall issue and
the Trustee shall authenticate a new Security of the same series and tenor that
reflects the changed terms.
SECTION 9.05. Trustee to Sign Amendments, Etc. The Trustee shall be
entitled to receive, in addition to the documents required by Section 10.03, and
shall be fully protected in relying upon, an Opinion of Counsel stating that the
execution of any amendment, supplement or waiver authorized pursuant to this
Article 9 is authorized or permitted by this Indenture, stating that all
requisite consents have been obtained or that no consents are required and
stating that such supplemental indenture constitutes the legal, valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, subject to customary exceptions. Subject to the preceding
sentence, the Trustee shall sign such amendment, supplement or waiver if the
same does not adversely affect the rights of the Trustee. The Trustee may, but
shall not be obligated to, execute any such amendment, supplement or waiver that
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.06. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article 9 shall conform to the requirements
of the Trust Indenture Act as then in effect.
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ARTICLE 10
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act of 1939. This Indenture shall
incorporate and be governed by the provisions of the Trust Indenture Act that
are required to be part of and to govern indentures qualified under the Trust
Indenture Act.
SECTION 10.02. Notices. Any notice or communication shall be
sufficiently given if written and (a) if delivered in person when received or
(b) if, to the Holders, if mailed by first class mail 5 days after mailing, or
(c) as between the Company and the Trustee if sent by facsimile transmission,
when transmission is confirmed, in each case addressed as follows:
if to the Company:
Amerada ▇▇▇▇ Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
if to the Trustee:
JPMorgan Chase Bank, N.A.
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
The Company or the Trustee by written notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication shall be sufficiently given to Holders of
any Unregistered Securities by publication at least once in an Authorized
Newspaper in The City of New York, or with respect to any Security the interest
on which is based on the offered quotations in the interbank Eurodollar market
for dollar deposits at least once in an Authorized Newspaper in London, and by
mailing to the Holders thereof who have filed their names and addresses with the
Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act at such
addresses as were so furnished to the Trustee and to Holders of Registered
Securities by mailing to such Holders at their addresses as they shall appear on
the Security Register. Notice mailed shall be sufficiently given if so mailed
within the time prescribed. Copies of any such communication or notice to a
Holder shall also be mailed to the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. Except as
otherwise provided in this Indenture, if a notice or communication is mailed in
the manner provided in this Section 10.02, it is duly given, whether or not the
addressee receives it.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event,
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and such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case it shall be impracticable to give notice as herein
contemplated, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 10.03. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 10.04. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall except as otherwise provided herein
include:
(a) a statement that each person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statement or opinion contained in such certificate
or opinion is based;
(c) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of each such
person, such condition or covenant has been complied with; provided, however,
that, with respect to matters of fact, an Opinion of Counsel may rely on an
Officers' Certificate or certificates of public officials.
SECTION 10.05. Evidence of Ownership. The Company, the Trustee and any
agent of the Company or the Trustee may deem and treat the Holder of any
Unregistered Security and the Holder of any coupon as the absolute owner of such
Unregistered Security or coupon (whether or not such Unregistered Security or
coupon shall be overdue) for the purpose of receiving payment thereof or on
account thereof and for all other purposes, and neither the Company, the
Trustee, nor any agent of the Company or the Trustee shall be affected by any
notice to the contrary. The fact of the holding by any Holder of an Unregistered
Security, and the identifying number of such Security and the date of his
holding the same, may be proved by the production of such Security or by a
certificate executed by any trust company, bank, banker
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or recognized securities dealer wherever situated satisfactory to the Trustee,
if such certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
bearing a specified identifying number was deposited with or exhibited to such
trust company, bank, banker or recognized securities dealer by the person named
in such certificate. Any such certificate may be issued in respect of one or
more Unregistered Securities specified therein. The holding by the Person named
in any such certificate of any Unregistered Securities specified therein shall
be presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding (a) another
certificate bearing a later date issued in respect of the same Securities shall
be produced or (b) the Security specified in such certificate shall be produced
by some other Person, or (c) the Security specified in such certificate shall
have ceased to be outstanding. Subject to Article 7, the fact and date of the
execution of any such instrument and the amount and numbers of Securities held
by the Person so executing such instrument may also be proven in accordance with
such reasonable rules and regulations as may be prescribed by the Trustee or in
any other manner which the Trustee may deem sufficient.
The Company, the Trustee and any agent of the Company or the Trustee
may deem and treat the person in whose name any Registered Security shall be
registered upon the Security Register for such series as the absolute owner of
such Registered Security (whether or not such Registered Security shall be
overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the Principal of and,
subject to the provisions of this Indenture, interest on such Registered
Security and for all other purposes; and neither the Company nor the Trustee nor
any agent of the Company or the Trustee shall be affected by any notice to the
contrary.
SECTION 10.06. Rules by Trustee, Paying Agent or Registrar. The
Trustee may make reasonable rules for action by or at a meeting of Holders. The
Paying Agent or Registrar may make reasonable rules for its functions.
SECTION 10.07. Payment Date Other than a Business Day. If any date for
payment of Principal or interest on any Security shall not be a Business Day at
any place of payment, then payment of Principal of or interest on such Security,
as the case may be, need not be made on such date, but may be made on the next
succeeding Business Day at any place of payment with the same force and effect
as if made on such date and no interest shall accrue in respect of such payment
for the period from and after such date.
SECTION 10.08. Governing Law. The laws of the State of New York shall
govern this Indenture and the Securities.
SECTION 10.09. No Adverse Interpretation of Other Agreements. This
Indenture may not be used to interpret another indenture or loan or debt
agreement of the Company or any Subsidiary of the Company. Any such indenture or
agreement may not be used to interpret this Indenture.
SECTION 10.10. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
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SECTION 10.11. Duplicate 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.
SECTION 10.12. Separability. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 10.13. Tables of Contents, Headings, Etc. The Table of
Contents and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof and shall in no way modify or restrict any of the terms and provisions
hereof.
SECTION 10.14. Incorporators, Stockholders, Officers and Directors of
Company Exempt from Individual Liability. No recourse under or upon any
obligation, covenant or agreement contained in this Indenture or any indenture
supplemental hereto, or in any Security or any coupons appertaining thereto, or
because of any indebtedness evidenced thereby, shall be had against any
incorporator, as such or against any past, present or future stockholder,
officer, director or employee, as such, of the Company or of any successor,
either directly or through the Company or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
coupons appertaining thereto by the holders thereof and as part of the
consideration for the issue of the Securities and the coupons appertaining
thereto.
SECTION 10.15. Judgment Currency. The Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the Principal of or interest on the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such day is not a Business
Day, then, to the extent permitted by applicable law, the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the
Judgment Currency on the Business Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with subsection (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture.
-50-
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the date first written above.
AMERADA ▇▇▇▇ CORPORATION
as the Company
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
-----------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
Title: Executive Vice President
and General Counsel
JPMorgan Chase Bank, N.A.
as Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
CUSIP:
ISIN:
FACE OF NOTE
Unless and until this Note is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by The
Depository Trust Company, a New York corporation ("DTC" or the "Depositary"), to
a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by
DTC or any nominee to a successor Depositary or a nominee of any successor
Depositary. Unless this certificate is presented by an authorized representative
of DTC to the Issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
in 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.
No. 1 $[___],000,000
AMERADA ▇▇▇▇ CORPORATION
[___]% Note Due [___]
Amerada ▇▇▇▇ Corporation, a Delaware corporation (the "Issuer"), for value
received, hereby promises to pay to CEDE & Co. or registered assigns, at the
office or agency of the Issuer in New York, New York, the principal sum of
[___],000,000 Dollars on [___] in such coin or currency of the United States of
America as at the time of payment shall be legal tender for the payment of
public and private debts, and to pay interest, semiannually on [___] and [___]
of each year, commencing [___], on said principal sum at said office or agency,
in like coin or currency, at the rate per annum specified in the title of this
Note, from [___] or [___], as the case may be, next preceding the date of this
Note to which interest has been paid, unless the date hereof is a date to which
interest has been paid, in which case from the date of this Note, or unless no
interest has been paid on these Notes, in which case from [___], until payment
of said principal sum has been made or duly provided for; provided, that payment
of interest may be made at the option of the Issuer by check mailed to the
address of the person entitled thereto as such address shall appear on the
Security register. Notwithstanding the foregoing, if the date hereof is after
the 1st day of [___] or [___], as the case may be, and before the following
[___] or [___], this Note shall bear interest from such [___] or [___];
provided, that if the Issuer shall default in the payment of interest due on
such [___] or [___], then this Note shall bear interest from the next preceding
[___] or [___], to which
EXHIBIT A
Page 2
interest has been paid or, if no interest has been paid on these Notes, from
[___], [___]. The interest so payable on any [___] or [___], will, subject to
certain exceptions provided in the Indenture referred to on the reverse hereof,
be paid to the person in whose name this Note is registered at the close of
business on [___] or [___], as the case may be, next preceding such [___] or
[___].
Reference is made to the further provisions of this Note set forth on the
reverse hereof. Such further provisions shall for all purposes have the same
effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been signed by the Trustee under
the Indenture referred to on the reverse hereof.
EXHIBIT A
Page 3
IN WITNESS WHEREOF, Amerada ▇▇▇▇ Corporation has caused this instrument to
be signed by its duly authorized officers.
Dated:
[Company Seal] AMERADA ▇▇▇▇ CORPORATION
By:
-------------------------
Name:
Title:
By:
-------------------------
Name:
Title:
This is one of the Global Notes of the series designated herein referred to
in the within-mentioned Indenture.
JPMORGAN CHASE BANK, N.A., as
Trustee
By:
-------------------------
Name:
Title:
EXHIBIT A
Page 4
REVERSE OF NOTE
AMERADA ▇▇▇▇ CORPORATION
[___]% Note Due [___]
This Note is one of a duly authorized issue of debentures, notes, bonds or
other evidences of indebtedness of the Issuer (hereinafter called the "Notes")
of the series hereinafter specified, all issued or to be issued under and
pursuant to an indenture dated as of [___] (the "Indenture") duly executed and
delivered by the Issuer to JPMorgan Chase Bank, N.A., Trustee (herein called the
"Trustee"), to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
holders of the Notes. The Notes may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may be
subject to different redemption provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any) and may otherwise vary as in the
Indenture provided. This Note is one of a series designated as the [___]% Notes
Due [___] of the Issuer, issued in an initial aggregate principal amount of
$[___],000,000.
In case an Event of Default with respect to the [___]% Notes Due [___], as
defined in the Indenture, shall have occurred and be continuing, the principal
hereof may be declared, and upon such declaration shall become, due and payable,
in the manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee to
amend the Indenture and the Notes of any series with the written consent of the
Holders of a majority in principal amount of the outstanding Notes of all series
affected by such supplemental indenture (all such series voting as one class),
and the Holders of a majority in principal amount of the outstanding Notes of
all series affected thereby (all such series voting as one class) by written
notice to the Trustee may waive future compliance by the Issuer with any
provision of the Indenture or the Notes of such series; provided, however, that
no such supplemental indenture shall (i) extend the stated maturity of the
Principal of, or any sinking fund obligation or any installment of interest on,
such Holder's Note, or reduce the principal amount thereof or the rate of
interest thereon (including any amount in respect of original issue discount),
or any premium payable with respect thereto, or reduce the amount of the
Principal of an Original Issue Discount Security that would be due and payable
upon an acceleration of the maturity thereof pursuant to Section 6.02 or the
amount thereof provable in bankruptcy, or change any place of payment where, or
the currency in which, any Note or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the due date therefor; (ii) reduce the percentage in
principal amount of outstanding Notes of the relevant series the consent of
whose Holders is required for such supplemental indenture, for any waiver of
compliance with certain provisions of the Indenture or certain Defaults and
their
EXHIBIT A
Page 5
consequences provided for in the Indenture; (iii) waive a Default in the payment
of Principal of or interest on any Note of such Holders; (iv) modify any of the
provisions of Section 9.02 of the Indenture, except to increase any such
percentage or to provide that certain other provisions of the Indenture cannot
be modified or waived without the consent of the Holder of each outstanding Note
affected thereby.
It is also provided in the Indenture that, subject to certain conditions,
the Holders of at least a majority in aggregate principal amount of the
outstanding Notes of all series affected (voting as a single class), by notice
to the Trustee, may waive an existing Default or Event of Default with respect
to the Notes of such series and its consequences, except a Default in the
payment of principal of or interest on any Note or in respect of a covenant or
provision of the Indenture which cannot be modified or amended without the
consent of the Holder of each outstanding Note affected. Upon any such waiver,
such Default shall cease to exist, and any Event of Default with respect to the
Notes of such series arising therefrom shall be deemed to have been cured, for
every purpose of the Indenture; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note in the manner, at the respective times, at the rate and in the coin
or currency herein prescribed.
The Notes are issuable in registered form without coupons in denominations
of $1,000 and any multiple of $1,000 and in book-entry form. The Notes may be
represented by one or more global notes (each, a "Global Note") deposited with
the Depositary and registered in the name of the nominee of the Depositary, with
certain limited exceptions. So long as DTC or any successor Depositary or its
nominee is the registered Holder of a Global Note, DTC, such Depositary or such
nominee, as the case may be, will be considered the sole owner or Holder of the
Notes represented by such Global Note for all purposes under the Indenture and
the Notes. Beneficial interest in the Notes will be evidenced only by, and
transfer thereof will be effected only through, records maintained by DTC and
its participants. Except as provided below, an owner of a beneficial interest in
a Global Note will not be entitled to have Notes represented by such Global Note
registered in such owner's name, will not receive or be entitled to receive
physical delivery of the Notes in certificated form and will not be considered
the owner or Holder thereof under the Indenture.
No Global Note may be transferred except as a whole by the Depositary to a
nominee of the Depositary. Global Notes are exchangeable for certificated Notes
only if (x) the Depositary notifies the Issuer that it is unwilling or unable to
continue as Depositary for such Global Notes or if at any time the Depositary
ceases to be a clearing agency registered under the Securities Exchange Act of
1934, as amended, and the Issuer fails within 90 days thereafter to appoint a
successor, (y) the Issuer in its sole discretion determines that such Global
Notes shall be so exchangeable or (z) there shall have occurred and be
continuing an Event of Default or an event which with the giving of notice or
lapse of time or both would constitute an Event of Default with respect to
EXHIBIT A
Page 6
the Notes represented by such Global Notes. In such event, the Issuer will issue
Notes in certificated form in exchange for such Global Notes. In any such
instance, an owner of a beneficial interest in the Global Notes will be entitled
to physical delivery in certificated form of Notes equal in principal amount to
such beneficial interest and to have such Notes registered in its name. Notes so
issued in certificated form will be issued in denominations of $1,000 or any
integral multiple thereof, and will be issued in registered form only, without
coupons.
No recourse under or upon any obligation, covenant or agreement of the
Issuer in the Indenture or any indenture supplemental thereto or in any Note, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, of the
Issuer or of any successor corporation, either directly or through the Issuer or
any successor corporation, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance hereof and as part of the consideration for the issue hereof.
Terms used herein which are not otherwise defined shall have the meanings
set forth in the Indenture.
