EXHIBIT 4.1
VINTAGE PETROLEUM, INC.
and
THE CHASE MANHATTAN BANK
as Trustee
_______________
Indenture
Dated as of _____ __, ____
_______________
Debt Securities
TABLE OF CONTENTS
Page
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RECITALS OF THE COMPANY.............................. 1
ARTICLE I
Definitions
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SECTION 1.01. Certain Terms Defined............... 1
SECTION 1.02. Incorporation by Reference of
Trust Indenture Act............... 13
SECTION 1.03. Rules of Construction............... 13
ARTICLE II
Debt Securities
---------------
SECTION 2.01. Forms Generally..................... 14
SECTION 2.02. Form of Trustee's Certificate of
Authentication.................... 15
SECTION 2.03. Principal Amount; Issuable in
Series............................ 15
SECTION 2.04. Execution of Debt Securities........ 19
SECTION 2.05. Authentication and Delivery of
Debt Securities................... 20
SECTION 2.06. Denomination of Debt Securities..... 22
SECTION 2.07. Registration of Transfer and
Exchange.......................... 22
SECTION 2.08. Temporary Debt Securities........... 24
SECTION 2.09. Mutilated, Destroyed, Lost or
Stolen Debt Securities............ 25
SECTION 2.10. Cancelation of Surrendered Debt
Securities........................ 26
SECTION 2.11. Provisions of the Indenture and
Debt Securities for the Sole
Benefit of the Parties and the
Holders........................... 26
SECTION 2.12. Payment of Interest; Rights
Preserved......................... 27
SECTION 2.13. Securities Denominated in Foreign
Currencies........................ 27
SECTION 2.14. Wire Transfers...................... 28
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SECTION 2.15. Securities Issuable in the Form of
a Global Security................. 28
SECTION 2.16. Medium Term Securities.............. 31
SECTION 2.17. Defaulted Interest.................. 32
SECTION 2.18. Judgments........................... 33
ARTICLE III
Redemption of Debt Securities
-----------------------------
SECTION 3.01. Applicability of Article............ 34
SECTION 3.02. Notice of Redemption; Selection of
Debt Securities................... 34
SECTION 3.03. Payment of Debt Securities Called
for Redemption.................... 36
SECTION 3.04. Mandatory and Optional Sinking
Funds............................. 37
SECTION 3.05. Redemption of Debt Securities for
Sinking Fund...................... 37
ARTICLE IV
Particular Covenants of the Company
-----------------------------------
SECTION 4.01. Payment of Principal of, and
Premium, If Any, and Interest
on, Debt Securities............... 40
SECTION 4.02. Maintenance of Offices or Agencies
for Registration of Transfer,
Exchange and Payment of Debt
Securities........................ 40
SECTION 4.03. Appointment to Fill a Vacancy in
the Office of Trustee............. 41
SECTION 4.04. Duties of Paying Agents, etc........ 41
SECTION 4.05. Statement by Officers as to
Default........................... 43
SECTION 4.06. Further Instruments and Acts........ 43
SECTION 4.07. Existence........................... 43
SECTION 4.08. Maintenance of Properties........... 43
SECTION 4.09. Payment of Taxes and Other
Claims............................ 44
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ARTICLE V
Holders' Lists and Reports by the Company
-----------------------------------------
and the Trustee
----------------
SECTION 5.01. Company to Furnish Trustee
Information as to Names and
Addresses of Holders;
Preservation of Information........ 44
SECTION 5.02. Communications to Holders............ 45
SECTION 5.03. Reports by Company................... 45
SECTION 5.04. Reports by Trustee................... 45
SECTION 5.05. Record Dates for Action by
Holders............................ 46
ARTICLE VI
Remedies of the Trustee and Holders in Event of Default
-------------------------------------------------------
SECTION 6.01. Events of Default.................... 46
SECTION 6.02. Collection of Indebtedness by
Trustee, etc....................... 50
SECTION 6.03. Application of Moneys Collected by
Trustee............................ 51
SECTION 6.04. Limitation on Suits by Holders....... 53
SECTION 6.05. Remedies Cumulative; Delay or
Omission in Exercise of Rights
Not a Waiver of Default............ 53
SECTION 6.06. Rights of Holders of Majority in
Principal Amount of Debt
Securities to Direct Trustee and
to Waive Default................... 54
SECTION 6.07. Trustee to Give Notice of Defaults
Known to It, but May Withhold
Such Notice in Certain
Circumstances...................... 55
SECTION 6.08. Requirement of an Undertaking to
Pay Costs in Certain Suits under
the Indenture or Against the
Trustee............................ 55
iv
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ARTICLE VII
Concerning the Trustee
----------------------
SECTION 7.01. Certain Duties and
Responsibilities................... 56
SECTION 7.02. Certain Rights of Trustee............ 57
SECTION 7.03. Trustee Not Liable for Recitals
in Indenture or in Debt
Securities......................... 59
SECTION 7.04. Trustee, Paying Agent or Registrar
May Own Debt Securities............ 59
SECTION 7.05. Moneys Received by Trustee to Be
Held in Trust...................... 60
SECTION 7.06. Compensation and Reimbursement....... 60
SECTION 7.07. Right of Trustee to Rely on an
Officers' Certificate Where No
Other Evidence Specifically
Prescribed......................... 61
SECTION 7.08. Separate Trustee; Replacement of
Trustee............................ 61
SECTION 7.09. Successor Trustee by Merger.......... 63
SECTION 7.10. Eligibility; Disqualification........ 63
SECTION 7.11. Preferential Collection of Claims
Against Company.................... 64
SECTION 7.12. Compliance with Tax Laws............. 64
ARTICLE VIII
Concerning the Holders
----------------------
SECTION 8.01. Evidence of Action by Holders........ 64
SECTION 8.02. Proof of Execution of Instruments
and of Holding of Debt
Securities......................... 65
SECTION 8.03. Who May Be Deemed Owner of Debt
Securities......................... 65
SECTION 8.04. Instruments Executed by Holders
Bind Future Holders................ 66
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ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Purposes for Which Supplemental
Indenture May Be Entered into
Without Consent of Holders......... 67
SECTION 9.02. Modification of Indenture with
Consent of Holders of Debt
Securities......................... 69
SECTION 9.03. Effect of Supplemental
Indentures......................... 71
SECTION 9.04. Debt Securities May Bear Notation
of Changes by Supplemental
Indentures......................... 71
SECTION 9.05. Payment for Consent.................. 72
ARTICLE X
Consolidation, Merger, Sale or Conveyance
-----------------------------------------
SECTION 10.01. Consolidations and Mergers of the
Company............................ 72
SECTION 10.02. Rights and Duties of Successor
Corporation.......................... 72
ARTICLE XI
Satisfaction and Discharge of Indenture;
---------------------------------------
Defeasance; Unclaimed Moneys
----------------------------
SECTION 11.01. Applicability of Article............. 73
SECTION 11.02. Satisfaction and Discharge of
Indenture: Defeasance................ 73
SECTION 11.03. Conditions of Defeasance............. 75
SECTION 11.04. Application of Trust Money........... 77
SECTION 11.05. Repayment to Company................. 77
SECTION 11.06. Indemnity for U.S. Government
Obligations.......................... 77
SECTION 11.07. Reinstatement........................ 77
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ARTICLE XII
Subordination of Debt Securities
--------------------------------
SECTION 12.01. Applicability of Article;
Agreement to Subordinate........... 78
SECTION 12.02. Liquidation, Dissolution,
Bankruptcy......................... 78
SECTION 12.03. Default on Senior Indebtedness....... 79
SECTION 12.04. Acceleration of Payment of Debt
Securities......................... 80
SECTION 12.05. When Distribution Must Be Paid
Over............................... 80
SECTION 12.06. Subrogation.......................... 81
SECTION 12.07. Relative Rights...................... 81
SECTION 12.08. Subordination May Not Be Impaired
by Company......................... 81
SECTION 12.09. Rights of Trustee and Paying
Agent.............................. 81
SECTION 12.10. Distribution or Notice to
Representative..................... 82
SECTION 12.11. Article XII Not to Prevent Defaults
or Limit Right to Accelerate....... 82
SECTION 12.12. Trust Moneys Not Subordinated........ 82
SECTION 12.13. Trustee Entitled to Rely............. 82
SECTION 12.14. Trustee to Effectuate
Subordination...................... 83
SECTION 12.15. Trustee Not Fiduciary for Holders
of Senior Indebtedness............. 83
SECTION 12.16. Reliance by Holders of Senior
Indebtedness on Subordination
Provisions......................... 84
ARTICLE XIII
Miscellaneous Provisions
------------------------
SECTION 13.01. Successors and Assigns of Company
Bound by Indenture................. 84
SECTION 13.02. Acts of Board, Committee or
Officer of Successor Company Valid. 84
SECTION 13.03. Required Notices or Demands.......... 84
SECTION 13.04. Indenture and Debt Securities to
Be Construed in Accordance with the
Laws of the State of New York...... 85
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SECTION 13.05. Officers' Certificate and Opinion
of Counsel to Be Furnished upon
Application or Demand by the
Company............................ 85
SECTION 13.06. Payments Due on Legal Holidays....... 86
SECTION 13.07. Provisions Required by Trust
Indenture Act to Control............. 86
SECTION 13.08. Computation of Interest on Debt
Securities........................... 87
SECTION 13.09. Rules by Trustee, Paying Agent and
Registrar............................ 87
SECTION 13.10. No Recourse Against Others........... 87
SECTION 13.11. Severability......................... 87
SECTION 13.12. Effect of Headings................... 87
SECTION 13.13. Indenture May Be Executed in
Counterparts......................... 87
SIGNATURES ............................................ 88
viii
VINTAGE PETROLEUM, INC.
Debt Securities
CROSS REFERENCE SHEET*
This Cross Reference Sheet shows the location in the Indenture of the provisions
inserted pursuant to Sections 310-318(a), inclusive of the Trust Indenture Act
of 1939.
Indenture
TIA Section Section
----------- -----------
310 (a)(1) ................................... 7.10
(a)(2) ................................... 7.10
(a)(3) ................................... 7.10
(a)(5) ................................... 7.10
(b) ................................... 7.10
(c) ................................... N.A.**
311 (a) ................................... 7.11
(b) ................................... 7.11
(c) ................................... N.A.
312 (a) ................................... 5.01
(b) ................................... 5.02
(c) ................................... 5.02
313 (a) ................................... 5.04
(b)(1) ................................... 5.04
(b)(2) ................................... 5.04
(c) ................................... 12.03
(d) ................................... 5.04
314 (a)(1) ................................... 5.03(a)
(a)(2) ................................... 5.03(b)
(a)(3) ................................... 5.03(a)&(b)
& 12.03
(a)(4) ................................... 5.04
(b) ................................... N.A.
(c)(1) ................................... 12.05
(c)(2) ................................... 12.05
(c)(3) ................................... N.A.
(d) ................................... N.A.
(e) ................................... 12.05
(f) ................................... 4.06
315 (a) ................................... 7.01(a)
(b) ................................... 6.07 &
12.03
(c) ................................... 7.01
(d) ................................... 7.01
(e) ................................... 6.08
316 (a)(last sentence)......................... 1.01
(a)(1)(A).................................. 6.06
(a)(1)(B).................................. 6.06
(a)(2) ................................... 9.01(d)
(b) ................................... 6.04
(c) ................................... 5.05
317 (a)(1) ................................... 6.02
(a)(2) ................................... 6.02
(b) ................................... 4.04
318 (a) ................................... 12.07
* The Cross Reference Sheet is not part of the Indenture.
** N.A. means "Not Applicable."
INDENTURE dated as of , ____, between VINTAGE
PETROLEUM, INC., a corporation duly organized and existing under
the laws of the State of Delaware (hereinafter sometimes called
the "Company"), and The Chase Manhattan Bank, a New York banking
corporation (hereinafter sometimes called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its debentures,
notes, bonds or other evidences of indebtedness to be issued in one or more
series unlimited as to principal amount (herein called the "Debt Securities"),
as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH
That in order to declare the terms and conditions upon which the Debt
Securities are authenticated, issued and delivered, and in consideration of the
premises, and of the purchase and acceptance of the Debt Securities by the
holders thereof, the Company and the Trustee covenant and agree with each other,
for the benefit of the respective Holders from time to time of the Debt
Securities or any series thereof, as follows:
ARTICLE I
Definitions
-----------
SECTION 1.01. Certain Terms Defined. The terms defined in this
----------------------
Section 1.01 (except as herein otherwise expressly provided or unless the
context otherwise requires) for all purposes of this Indenture and of any
Indenture supplemental hereto shall have the respective meanings specified in
this Section 1.01. All other terms used in this Indenture which are defined in
the Trust Indenture Act or which are by reference therein defined in the
Securities Act (except as herein otherwise expressly provided or unless the
context otherwise requires), shall have the meanings assigned to such terms in
the Trust Indenture Act and in the
2
Securities Act as in force as of the date of original execution of this
Indenture.
"Affiliate" of any specified Person means any other Person, directly
---------
or indirectly, controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Bank Indebtedness" means any and all amounts payable under or in
-----------------
respect of (i) the Credit Agreement, as supplemented, amended, modified,
refinanced or replaced at any time from time to time, and (ii) any lines of
credit and letters of credit of the Company, in each case, including principal,
premium (if any), interest (including interest accruing on or after the filing
of any petition in bankruptcy or for reorganization relating to the Company
whether or not a claim for post-filing interest is allowed in such proceedings),
fees, charges, expenses, reimbursement obligations, guarantees and all other
amounts payable thereunder or in respect thereof.
"Banks" has the meaning specified in the Credit Agreement.
-----
"Board of Directors" means either the Board of Directors of the
------------------
Company or any duly authorized committee or subcommittee of such Board, except
as the context may otherwise require.
"business day" means any day that is not a Saturday, a Sunday or legal
------------
holiday and, with respect to any Place of Payment specified pursuant to Section
2.03, any other day on which banking institutions or trust companies in such
Place of Payment are authorized or obligated by law or executive order to close.
"Capitalized Lease Obligation" means an obligation that is required to
----------------------------
be classified and accounted for as a capitalized lease for financial reporting
purposes in accordance with GAAP; and the amount of Indebtedness represented by
such obligation shall be the capitalized amount of such obligation determined in
accordance with GAAP; and the Stated Maturity thereof shall be the date of the
last payment of rent or any other amount due under such
3
lease prior to the first date upon which such lease may be terminated by the
lessee without payment of a penalty.
"Capital Stock" of any Person means any and all shares, interests,
-------------
rights to purchase, warrants, options, participations or other equivalents of or
interests (including partnership interests) in (however designated) equity of
such Person, including any Preferred Stock, but excluding any debt securities
convertible into such equity.
"Common Stock" means the common stock ($0.005 par value), of the
------------
Company, which stock is currently listed on the New York Stock Exchange.
"Company" means Vintage Petroleum, Inc., a Delaware corporation, and,
-------
subject to the provisions of Article X, shall also include its successors and
assigns.
"Company Order" means a written order of the Company, signed by its
-------------
Chairman of the Board, President or any Vice President and by its Treasurer,
Secretary, any Assistant Treasurer or any Assistant Secretary.
"corporate trust office of the Trustee" or other similar term means
-------------------------------------
the office of the Trustee at which the corporate trust business of the Trustee
shall, at any particular time, be principally administered in the United States
of America, except that with respect to the presentation of Debt Securities for
payment or for registration of transfer and exchange, such term shall also mean
the office of the Trustee or the Trustee's agent in the Borough of Manhattan,
the City and State of New York, at which at any particular time its corporate
agency business shall be conducted.
"Credit Agreement" means the Amended and Restated Credit Agreement
----------------
dated as of October 21, 1998, among the Company and certain of its subsidiaries,
each as a Borrower, and the Banks party thereto, as supplemented, amended,
modified, refinanced or replaced at any time from time to time.
"Currency" means Dollars or Foreign Currency.
--------
"Debt Security" or "Debt Securities" has the meaning stated in the
------------- ---------------
first recital of this Indenture and more particularly means any debt security or
debt securities, as the case may be, of any series authenticated and delivered
under this Indenture.
4
"Debt Security Register" has the meaning specified in Section 2.07(a).
----------------------
"Default" means any event which is, or after notice or passage of time
-------
or both would be, an Event of Default.
"Depositary" means, unless otherwise specified by the Company pursuant
----------
to either Section 2.03 or 2.15, with respect to registered Debt Securities of
any series issuable or issued in whole or in part in the form of one or more
Global Securities, The Depository Trust Company, New York, New York, or any
successor thereto registered as a clearing agency under the Exchange Act or
other applicable statute or regulations.
"Designated Senior Indebtedness" means (i) the Bank Indebtedness and
------------------------------
(ii) any other Senior Indebtedness.
"Disqualified Stock" of a Person means Redeemable Stock of such Person
------------------
as to which the maturity, mandatory redemption, conversion or exchange or
redemption at the option of the holder thereof occurs, or may occur, on or prior
to the first anniversary of the Stated Maturity of the Debt Securities of the
applicable series.
"Dollar" or "$" means such currency of the United States as at the
------ -
time of payment is legal tender for the payment of public and private debts.
"Dollar Equivalent" means, with respect to any monetary amount in a
-----------------
Foreign Currency, at any time for the determination thereof, the amount of
Dollars obtained by converting such Foreign Currency involved in such
computation into Dollars at the spot rate for the purchase of Dollars with the
applicable Foreign Currency as quoted by The Chase Manhattan Bank (unless
another comparable financial institution is designated by the Company) in New
York, New York at approximately 11:00 a.m. (New York time) on the date two
business days prior to such determination.
"Event of Default" has the meaning specified in Section 6.01.
----------------
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
------------
"Floating Rate Security" means a Debt Security that provides for the
----------------------
payment of interest at a variable rate determined periodically by reference to
an interest rate index or formula specified pursuant to Section 2.03.
5
"Foreign Currency" means a currency issued or adopted by the
----------------
government of any country other than the United States or a composite currency
the value of which is determined by reference to the values of the currencies of
any group of countries.
"GAAP" means generally accepted accounting principles in the United
----
States as in effect as of the date on which the Debt Securities of the
applicable series are issued, including those set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
approved by a significant segment of the accounting profession. All ratios and
computations based on GAAP contained in this Indenture shall be computed in
conformity with GAAP consistently applied.
"Global Security" means, with respect to any series of Debt Securities
---------------
issued hereunder, a Debt Security which is executed by the Company and
authenticated and delivered by the Trustee to the Depositary or pursuant to the
Depositary's instruction, all in accordance with this Indenture and any
Indentures supplemental hereto, or resolution of the Board of Directors and set
forth in an officers' Certificate, which shall be registered in the name of the
Depositary or its nominee and which shall represent, and shall be denominated in
an amount equal to the aggregate principal amount of, all the Outstanding Debt
Securities of such series or any portion thereof, in either case having the same
terms, including, without limitation, the same original issue date, date or
dates on which principal is due and interest rate or method of determining
interest.
"Guarantee" means any obligation, contingent or otherwise, of any
---------
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and any obligation, direct or indirect, contingent or
otherwise, of such Person (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation of such other
Person or (ii) entered into for purposes of assuring in any other manner the
obligee of such Indebtedness or other obligation of the payment thereof or to
protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term "Guarantee" shall not include endorsements for
-------- -------
collection or deposit in the ordinary course of business. The term "Guarantee"
used as a verb has a corresponding meaning.
6
"Holder," "Holder of Debt Securities" or other similar terms mean,
------ -------------------------
with respect to a Registered Security, the Registered Holder.
"Incur" means issue, assume, Guarantee, incur or otherwise become
-----
liable for; provided, however, that any Indebtedness or Capital Stock of a
-------- -------
Person existing at the time such Person becomes a Subsidiary (whether by merger,
consolidation, acquisition or otherwise) shall be deemed to be incurred by such
Subsidiary at the time it becomes a Subsidiary. The terms "Incurred",
"Incurrence" and "Incurring" shall each have a correlative meaning.
"Indebtedness" means, with respect to any Person on any date of
------------
determination (without duplication),
(i) the principal of Indebtedness of such Person for borrowed money;
(ii) the principal of obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments;
(iii) all Capitalized Lease Obligations of such Person;
(iv) all obligations of such Person to pay the deferred and unpaid
purchase price of property or services (except Trade Payables);
(v) all obligations of such Person in respect of letters of credit,
banker's acceptances or other similar instruments or credit transactions
(including reimbursement obligations with respect thereto), other than
obligations with respect to letters of credit securing obligations (other
than obligations described in (i) through (iv) above) entered into in the
ordinary course of business of such Person to the extent such letters of
credit are not drawn upon or, if and to the extent drawn upon, such drawing
is reimbursed no later than the third business day following receipt by
such Person of a demand for reimbursement following payment on the letter
of credit;
(vi) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock (but
excluding, in each case, any accrued dividends);
(vii) all Indebtedness of other Persons secured by a Lien on any asset
of such Person, whether or not such Indebtedness is assumed by such Person;
provided, however, that the amount of such Indebtedness shall be the lesser
-------- -------
of (A) the fair market value of such asset at such date of determination or
(B) the amount of such Indebtedness of such other Persons; and
7
(viii) all Indebtedness of other Persons to the extent Guaranteed by
such Person.
For purposes of this definition, the maximum fixed redemption, repayment or
repurchase price of any Disqualified Stock or Preferred Stock that does not have
a fixed redemption, repayment or repurchase price shall be calculated in
accordance with the terms of such Stock as if such Stock were redeemed, repaid
or repurchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture; provided, however, that if such Stock is
-------- -------
not then permitted to be redeemed, repaid or repurchased, the redemption,
repayment or repurchase price shall be the book value of such Stock as reflected
in the most recent financial statements of such Person. The amount of
Indebtedness of any Person at any date shall be the outstanding balance at such
date of all unconditional obligations as described above and the maximum
liability, upon the occurrence of the contingency giving rise to the obligation,
of any contingent obligations at such date.
"Indenture" means this instrument as originally executed, or, if
---------
amended or supplemented as herein provided, as so amended or supplemented and
shall include the form and terms of particular series of Debt Securities as
contemplated hereunder, whether or not a supplemental Indenture is entered into
with respect thereto.
"Issue Date" means, with respect to any series of Debt Securities, the
----------
date upon which such Debt Securities first were issued and authenticated under
this Indenture and any Indenture supplemental hereto.
"Lien" means any mortgage, pledge, security interest, encumbrance,
----
lien or charge of any kind (including any conditional sale or other title
retention agreement or lease in the nature thereof).
"Officers' Certificate" means a certificate signed by the Chairman of
---------------------
the Board, the President or any Vice President and by the Treasurer, chief
accounting officer, the Secretary or any Assistant Treasurer or Assistant
Secretary of the Company. Each such certificate shall include the statements
provided for in Section 13.05, if applicable.
"Opinion of Counsel" means an opinion in writing signed by legal
------------------
counsel for the Company (which counsel may be an employee of the Company), or
outside counsel for the Company. Each such opinion shall include the statements
provided for in Section 13.05, if applicable.
8
"Original Issue Discount Debt Security" means any Debt Security which
-------------------------------------
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration or acceleration of the maturity thereof pursuant to
Section 6.01.
"Outstanding" when used with respect to any series of Debt Securities,
-----------
means, as of the date of determination, all Debt Securities of that series
theretofore authenticated and delivered under this Indenture, except:
(i) Debt Securities of that series theretofore canceled by the Trustee
or delivered to the Trustee for cancelation;
(ii) Debt Securities of that series for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any paying agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
paying agent) for the holders of such Debt Securities; provided, that, if
--------
such Debt Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and
(iii) Debt Securities of that series which have been paid pursuant to
Section 2.09 or in exchange for or in lieu of which other Debt Securities
have been authenticated and delivered pursuant to this Indenture, other
than any such Debt Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Debt Securities
are held by a bona fide purchaser in whose hands such Debt Securities are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
-------- -------
principal amount of the Outstanding Debt Securities of any series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Debt Securities owned by the Company or any other obligor upon the Debt
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Debt Securities which
the Trustee knows to be so owned shall be so disregarded. Debt Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Debt Securities and that the pledgee is not the
Company or any other obligor upon the Debt Securities or an Affiliate of the
Company or of such other obligor.
9
In determining whether the Holders of the requisite principal amount of
outstanding Debt Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of an
Original Issue Discount Debt Security that shall be deemed to be Outstanding for
such purposes shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon a declaration of acceleration
of the maturity thereof pursuant to Section 6.01. In determining whether the
Holders of the requisite principal amount of the Outstanding Debt Securities of
any series have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, the principal amount of a Debt Security denominated
in one or more Foreign Currencies that shall be deemed to be Outstanding for
such purposes shall be the Dollar Equivalent, determined in the manner provided
as contemplated by Section 2.03 on the date of original issuance of such Debt
Security, of the principal amount (or, in the case of any Original Issue
Discount Security, the Dollar Equivalent on the date of original issuance of
such Debt Security of the amount determined as provided in the preceding
sentence above) of such Debt Security.
"pari passu", as applied to the ranking of any Indebtedness of a
----------
Person in relation to other Indebtedness of such Person, means that each such
Indebtedness either (i) is not subordinate in right of payment to any
Indebtedness or (ii) is subordinate in right of payment to the same Indebtedness
as is the other, and is so subordinate to the same extent, and is not
subordinate in right of payment to each other or to any Indebtedness as to which
the other is not so subordinate.
"Person" means any individual, corporation, partnership, joint
------
venture, association, limited liability company, joint stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"Place of Payment" means, when used with respect to the Debt
----------------
Securities of any series, the place or places where the principal of, and
premium, if any, and interest on, the Debt Securities of that series are payable
as specified pursuant to Section 2.03.
10
"Preferred Stock" as applied to the Capital Stock of any corporation,
---------------
means Capital Stock of any class or classes (however designated) which is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such
corporation, over shares of Capital Stock of any other class of such
corporation.
"Redeemable Stock" means, with respect to any Person, any Capital
----------------
Stock which by its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable) or upon the happening of any event
(i) matures or is mandatorily redeemable pursuant to a sinking fund obligation
or otherwise, (ii) is convertible or exchangeable for Indebtedness (other than
Preferred Stock) or Disqualified Stock or (iii) is redeemable at the option of
the holder thereof, in whole or in part.
"Registered Holder" means the Person in whose name a Registered
-----------------
Security is registered in the Debt Security Register (as defined in Section
2.07(a)).
"Registered Security" means any Debt Security registered as to
-------------------
principal and interest in the Debt Security Register (as defined in Section
2.07(a)).
"Registrar" has the meaning set forth in Section 2.07(a).
---------
"Representative" means the trustee, agent or representative (if any)
--------------
for an issue of Indebtedness.
"responsible officer" means, when used with respect to the Trustee,
-------------------
any officer within the corporate trust office of the Trustee, including, the
President, any Vice President, any Second Vice President, any Assistant Vice
President, the Secretary, any senior trust officer, any
11
trust officer or any other officer of the Trustee performing functions similar
to those performed by the persons who at the time shall be such officers, and
any other officer of the Trustee to whom corporate trust matters are referred
because of his knowledge of and familiarity with the particular subject.
"Secured Indebtedness" means any Indebtedness of the Company secured
--------------------
by a Lien.
"Securities Act" means the Securities Act of 1933, as amended.
--------------
"Senior Indebtedness" means, as to any series of Debt Securities
-------------------
subordinated pursuant to the provisions of Article XII, the Indebtedness of the
Company identified as Senior Indebtedness in the resolution of the Board of
Directors and accompanying Officers' Certificate or supplemental Indenture
setting forth the terms, including as to subordination, of such series.
"Stated Maturity" means, with respect to any security, the date
---------------
specified in such security as the fixed date on which the payment of principal
of such security is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the repurchase
of such security at the option of the holder thereof upon the happening of any
contingency beyond the control of the issuer unless such contingency has
occurred).
"Subsidiary" of any Person means any corporation, association,
----------
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by (i) such
Person, (ii) such Person and one or more Subsidiaries of such Person or (iii)
one or more Subsidiaries of such Person.
"Temporary Cash Investments" means any of the following: (i)
--------------------------
investments in U.S. Government Obligations maturing within 90 days of the date
of acquisition thereof, (ii) investments in time deposit accounts, certificates
of deposit and money market deposits maturing within 90 days of the date of
acquisition thereof issued by a bank or trust company which is organized under
the laws of the United
12
States, any State thereof or any foreign country recognized by the United States
having capital, surplus and undivided profits aggregating in excess of
$500,000,000 (or the Dollar Equivalent thereof) and whose long-term debt is
rated "A" or higher according to Xxxxx'x Investors Service, Inc. (or such
similar equivalent rating by at least one "nationally recognized statistical
rating organization" (as defined in Rule 436 under the Securities Act)), (iii)
repurchase obligations with a term of not more than 7 days for underlying
securities of the types described in clause (i) above entered into with a bank
meeting the qualifications described in clause (ii) above and (iv) investments
in commercial paper, maturing not more than 90 days after the date of
acquisition, issued by a corporation (other than an Affiliate of the Company)
organized and in existence under the laws of the United States or any foreign
country recognized by the United States with a rating at the time as of which
any investment therein is made of "P-1" (or higher) according to Xxxxx'x
Investors Service, Inc. or "A-1" (or higher) according to Standard and Poor's
Corporation.
"Trade Payables" means, with respect to any Person, any accounts
--------------
payable or any Indebtedness or monetary obligation to trade creditors created,
assumed or Guaranteed by such Person arising in the ordinary course of business
of such Person in connection with the acquisition of goods or services.
"Trustee" initially means The Chase Manhattan Bank and any other
-------
Person or Persons appointed as such from time to time pursuant to Section 7.08,
and, subject to the provisions of Article VII, includes its or their successors
and assigns. If at any time there is more than one such Person, "Trustee" as
used with respect to the Debt Securities of any series shall mean the Trustee
with respect to the Debt Securities of that series.
"Trust Indenture Act" (except as herein otherwise expressly provided)
-------------------
means the Trust Indenture Act of 1939 as in force at the date of this indenture
as originally executed and, to the extent required by law, as amended.
"United States" means the United States of America (including the
-------------
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"U.S. Government Obligations" means securities that are (x) direct
---------------------------
obligations of the United States for the payment of which its full faith and
credit is pledged or (y) obligations of a Person controlled or supervised by and
13
acting as an agency or instrumentality of the United States, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which, in either case, are not callable or redeemable at the
option of the issuer thereof.
"Yield to Maturity" means the yield to maturity calculated at the time
-----------------
of issuance of a series of Debt Securities, or, if applicable, at the most
recent redetermination of interest on such series and calculated in accordance
with accepted financial practice.
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.
--------------------------------------------------
This Indenture is subject to the mandatory provisions of the Trust Indenture Act
which are incorporated by reference in and made a part of this indenture. The
following Trust Indenture Act terms have the following meanings:
"indenture securities" means the Debt Securities.
--------------------
"indenture security holder" means a Holder.
-------------------------
"indenture to be qualified" means this Indenture.
-------------------------
"indenture trustee" or "institutional trustee" means the Trustee.
----------------- ---------------------
"obligor" on the indenture securities means the Company and any other
-------
obligor on the Debt Securities.
All other Trust Indenture Act terms used in this Indenture that are
defined by the Trust indenture Act, reference to another statute or defined by
rules of the Securities and Exchange Commission have the meanings assigned to
them by such definitions.
SECTION 1.03. Rules of Construction. Unless the context otherwise
----------------------
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) "including" means including without limitation;
14
(5) words in the singular include the plural and words in the plural
include the singular;
(6) if the applicable series of Debt Securities are subordinated
pursuant to Article XII, unsecured indebtedness shall not be deemed to be
subordinate or junior to Secured Indebtedness merely by virtue of its
nature as unsecured indebtedness;
(7) except as otherwise provided in the definition of "Outstanding"
contained in Section 1.01 hereunder, the principal amount of any
noninterest bearing or other discount security at any date shall be the
principal amount thereof that would be shown on a balance sheet of the
issuer dated such date prepared in accordance with GAAP; and
(8) the principal amount of any Preferred Stock shall be the greater
of (i) the maximum liquidation value of such Preferred Stock or (ii) the
maximum mandatory redemption or mandatory repurchase price with respect to
such Preferred Stock.
ARTICLE II
Debt Securities
---------------
SECTION 2.01. Forms Generally. The Debt Securities of each series
----------------
shall be in substantially the form established without the approval of any
Holder by or pursuant to a resolution of the Board of Directors or in one or
more Indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification or designation and such legends or endorsements placed thereon
as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required or appropriate to comply
with any law or with any rules made pursuant thereto or with any rules of any
securities exchange on which such series of Debt Securities may be listed, or to
conform to general usage, or as may, consistently herewith, be
15
determined by the officers executing such Debt Securities as evidenced by their
execution of the Debt Securities.
The definitive Debt Securities of each series shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Debt Securities,
as evidenced by their execution of such Debt Securities.
SECTION 2.02. Form of Trustee's Certificate of Authentication. The
------------------------------------------------
Trustee's Certificate of Authentication on all Debt Securities authenticated by
the Trustee shall be in substantially the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
-------------------------------
As Trustee
By
-----------------------------
Authorized Officer
SECTION 2.03. Principal Amount; Issuable in Series. The aggregate
-------------------------------------
principal amount of Debt Securities which may be issued, executed,
authenticated, delivered and outstanding under this Indenture is unlimited.
The Debt Securities may be issued in one or more series. There shall
be established, without the approval of any Holders, in or pursuant to a
resolution of the Board of Directors and set forth in an Officers' Certificate,
or established in one or more Indentures supplemental hereto, prior to the
issuance of Debt Securities of any series any or all of the following:
(1) the title of the Debt Securities of the series (which shall
distinguish the Debt Securities of the series from all other Debt
Securities);
(2) any limit upon the aggregate principal amount of the Debt
Securities of the series which may be authenticated and delivered under
this Indenture (except for Debt Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Debt
Securities of the series pursuant to this Article II);
(3) the date or dates on which the principal and premium, if any, of
the Debt Securities of the series are payable;
16
(4) the rate or rates (which may be fixed or variable) at which the
Debt Securities of the series shall bear interest, if any, or the method of
determining such rate or rates, the date or dates from which such interest
shall accrue, the interest payment dates on which such interest shall be
payable, or the method by which such date will be determined, in the case
of Registered Securities, the record dates for the determination of Holders
thereof to whom such interest is payable; and the basis upon which interest
will be calculated if other than that of a 360-day year of twelve thirty-
day months;
(5) the Place or Places of Payment, if any, in addition to or instead
of the corporate trust office of the Trustee where the principal of, and
interest on, Debt Securities of the series shall be payable;
(6) the price or prices at which, the period or periods within which
and the terms and conditions upon which Debt Securities of the series may
be redeemed, in whole or in part, at the option of the Company or
otherwise;
(7) the obligation, if any, of the Company to redeem, purchase or
repay Debt Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof, and the price or
prices at which and the period or periods within which and the terms and
conditions upon which Debt Securities of the series shall be redeemed,
purchased or repaid, in whole or in part, pursuant to such obligations;
(8) the terms, if any, upon which the Debt Securities of the series
may be convertible into or exchanged for Common Stock, Preferred Stock
(which may be represented by depositary shares), other Debt Securities or
warrants for Common Stock, Preferred Stock or Indebtedness or other
securities of any kind of the Company or any other obligor or issuer and
the terms and conditions upon which such conversion or exchange shall be
effected, including the initial conversion or exchange price or rate, the
conversion or exchange period and any other provision in addition to or in
lieu of those described herein;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Debt Securities of the series shall be
issuable;
17
(10) if the amount of principal of or any premium or interest on Debt
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts will be determined;
(11) if the principal amount payable at the Stated Maturity of Debt
Securities of the series will not be determinable as of any one or more
dates prior to such Stated Maturity, the amount which will be deemed to be
such principal amount as of any such date for any purpose, including the
principal amount thereof which will be due and payable upon any maturity
other than the Stated Maturity or which will be deemed to be Outstanding as
of any such date (or, in any such case, the manner in which such deemed
principal amount is to be determined); and the manner of determining the
equivalent thereof in the currency of the United States of America for
purposes of the definition of Dollar Equivalent;
(12) any changes or additions to Article XI, including the addition of
additional covenants that may be subject to the covenant defeasance option
pursuant to Section 11.02(b)(ii);
(13) if other than such coin or Currency of the United States as at
the time of payment is legal tender for payment of public and private
debts, the coin or Currency or Currencies or units of two or more
Currencies in which payment of the principal of and premium, if any, and
interest on, Debt Securities of the series shall be payable;
(14) if other than the principal amount thereof, the portion of the
principal amount of Debt Securities of the series which shall be payable
upon declaration of acceleration of the maturity thereof pursuant to
Section 6.01 or provable in bankruptcy pursuant to Section 6.02;
(15) the terms, if any, of the transfer, mortgage, pledge or
assignment as security for the Debt Securities of the series of any
properties, assets, moneys, proceeds, securities or other collateral,
including whether certain provisions of the Trust Indenture Act are
applicable and any corresponding changes to provisions of this Indenture as
currently in effect;
18
(16) any addition to or change in the Events of Default with respect
to the Debt Securities of the series and any change in the right of the
Trustee or the Holders to declare the principal of and interest on, such
Debt Securities due and payable;
(17) if the Debt Securities of the series shall be issued in whole or
in part in the form of a Global Security or Securities, the terms and
conditions, if any, in addition to or in lieu of the terms and conditions
set forth in Section 2.15(c), upon which such Global Security or Securities
may be exchanged in whole or in part for other individual Debt Securities
in definitive registered form; and the Depositary for such Global Security
or Securities and the form of any legend or legends to be borne by any such
Global Security or Securities in addition to or in lieu of the legend
referred to in Section 2.15;
(18) any trustees, authenticating or paying agents, transfer agents or
registrars;
(19) the applicability of, and any addition to or change in the
covenants and definitions currently set forth in this Indenture or in the
terms currently set forth in Article X, including conditioning any merger,
conveyance, transfer or lease permitted by Article X upon the satisfaction
of an Indebtedness coverage standard by the Company and Successor Company
(as defined in Article X);
(20) the terms, if any, of any Guarantee of the payment of principal
of, and premium, if any, and interest on, Debt Securities of the series and
any corresponding changes to the provisions of this Indenture as currently
in effect;
(21) the subordination, if any, of the Debt Securities of the series
pursuant to Article XII and any changes or additions to Article XII with
respect to such Debt Securities;
(22) with regard to Debt Securities of the series that do not bear
interest, the dates for certain required reports to the Trustee; and
(23) any other terms of the Debt Securities of the series (which terms
shall not be prohibited by the provisions of this Indenture).
19
All Debt Securities of any one series appertaining thereto shall be
substantially identical except as to denomination and except as may otherwise be
provided in or pursuant to such resolution of the Board of Directors and as set
forth in such Officers' Certificate or in any such Indenture supplemental
hereto.
Unless otherwise expressly provided with respect to a series of Debt
Securities, the aggregate principal amount of a series of Debt Securities may be
increased by or pursuant to a resolution of the Board of Directors and
additional Debt Securities of such series may be issued up to the increased
maximum aggregate principal amount so authorized.
SECTION 2.04. Execution of Debt Securities. The Debt Securities
-----------------------------
shall be signed on behalf of the Company by its Chairman of the Board, its Vice
Chairman, its President or a Vice President and by its Secretary, an Assistant
Secretary, a Treasurer or an Assistant Treasurer. Such signatures upon the Debt
Securities may be the manual or facsimile signatures of the present or any
future such authorized officers and may be imprinted or otherwise reproduced on
the Debt Securities. The seal of the Company, if any, may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Debt Securities.
Only such Debt Securities as shall bear thereon a certificate of
authentication substantially in the form hereinbefore recited, signed manually
by an authorized officer of the Trustee, shall be entitled to the benefits of
this Indenture or be valid or obligatory for any purpose. Such certificate by
the Trustee upon any Debt Security executed by the Company shall be conclusive
evidence that the Debt Security so authenticated has been duly authenticated and
delivered hereunder.
In case any officer of the Company who shall have signed any of the
Debt Securities shall cease to be such officer before the Debt Securities so
signed shall have been authenticated and delivered by the Trustee, or disposed
of by the Company, such Debt Securities nevertheless may be authenticated and
delivered or disposed of as though the Person who signed such Debt Securities
had not ceased to be such officer of the Company; and any Debt Security may be
signed on behalf of the Company by such Persons as, at the actual date of the
execution of such Debt Security, shall be the proper officers of the Company,
although at the date of such Debt Security or of the execution of this Indenture
any such Person was not such officer.
20
SECTION 2.05. Authentication and Delivery of Debt Securities. At any
----------------------------------- -----------
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Debt Securities of any series executed by the Company to
the Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver said Debt Securities pursuant to a Company Order. In authenticating
such Debt Securities and accepting the additional responsibilities under this
Indenture in relation to such Debt Securities, the Trustee shall be entitled to
receive, and (subject to Section 7.01.) shall be fully protected in relying
upon:
(1) a copy of any resolution or resolutions of the Board of Directors,
certified by the Secretary or Assistant Secretary of the Company,
authorizing the terms of issuance of the series of Debt Securities;
(2) an executed supplemental Indenture, if any;
(3) an Officers' Certificate prepared pursuant to Section 13.05 and,
if applicable, pursuant to Sections 2.03 and 9.03; and
(4) an opinion of Counsel prepared in accordance with Section 13.05
which shall also state:
(a) that the form of such Debt Securities has been established by
or pursuant to a resolution of the Board of Directors or by a
supplemental Indenture as permitted by Section 2.01 in conformity with
the provisions of this Indenture;
(b) that the terms of such Debt Securities have been established
by or pursuant to a resolution of the Board of Directors or by a
supplemental Indenture as permitted by Section 2.03 in conformity with
the provisions of this Indenture, and, in the case of the issuance of
Debt Securities pursuant to Section 2.16, the terms of such Debt
Securities that have been established by or pursuant to a resolution
of the Board of Directors or by a supplemental Indenture have been
established as permitted by Section 2.03 in conformity with the
provisions of the Indenture and, when such other terms as are to be
established pursuant to procedures set forth in a Company Order or
pursuant to such other procedures as shall have been provided for with
respect to such Debt Securities shall have been established,
21
all such terms will have been established in conformity with the
provisions of this Indenture ;
(c) that such Debt Securities, when authenticated and delivered
by the Trustee and issued by the Company in the manner and subject to
any conditions specified in such opinion of Counsel, will constitute
valid and legally binding obligations of the Company, enforceable in
accordance with their terms except as the enforceability thereof may
be limited by (i) bankruptcy, insolvency, reorganization or similar
laws affecting the enforcement of creditors' rights generally and
(ii)general principles of equity, whether such principles are
considered in a proceeding at law or in equity;
(d) that the Company has the corporate power to issue such Debt
Securities and has duly taken all necessary corporate action with
respect to such issuance;
(e) that the issuance of such Debt Securities will not contravene
the charter or by-laws of the Company or result in any material
violation of any of the terms or provisions of any law or regulation
or of any indenture, mortgage or other agreement known to such counsel
by which the Company is bound;
(f) that authentication and delivery of such Debt Securities and
the execution and delivery of any supplemental Indenture will not
violate the terms of this Indenture; and
(g) such other matters as the Trustee may reasonably request.
Such Opinion of Counsel need express no opinion as to whether a court
in the United States would render a money judgment in a currency other than that
of the United States.
The Trustee shall have the right to decline to authenticate and
deliver any Debt Securities under this Section 2.05 if the Trustee, being
advised by counsel, determines that such action may not lawfully be taken or if
the Trustee in good faith by its board of directors or trustees, executive
committee or a trust committee of directors or trustees and/or vice presidents
shall determine that such action would expose the Trustee to personal liability
to existing Holders or would adversely affect the
22
Trustee's rights, duties, obligations or immunities under this Indenture in a
manner which is not reasonably acceptable to the Trustee.
The Trustee may appoint an authenticating agent reasonably acceptable
to the Company to authenticate Debt Securities of any series. Unless limited by
the terms of such appointment, an authenticating agent may authenticate Debt
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as any Registrar, paying agent or agent
for service of notices and demands.
Unless otherwise provided in the form of Debt Security for any series,
each Debt Security shall be dated the date of its authentication.
SECTION 2.06. Denomination of Debt Securities. Unless otherwise
--------------------------------
provided in the form of Debt Security for any series, the Debt Securities of
each series shall be issuable only as Registered Securities in such
denominations as shall be specified or contemplated by Section 2.03. In the
absence of any such specification with respect to the Debt Securities of any
series, the Debt Securities of such series shall be issuable in denominations of
$1,000 and any integral multiple thereof.
SECTION 2.07. Registration of Transfer and Exchange. (a) The
--------------------------------------
Company shall keep or cause to be kept a register for each series of Registered
Securities issued hereunder (hereinafter collectively referred to as the "Debt
Security Register"), in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and the registration of transfer or exchange of Registered Securities
as in this Article II provided. At all reasonable times the Debt Security
Register shall be open for inspection by the Trustee. Subject to Section 2.15,
upon due presentment for registration of transfer of any Registered Security at
any office or agency to be maintained by the Company in accordance with the
provisions of Section 4.02, the Company shall execute and the Trustee shall
authenticate and deliver in the name of the transferee or transferees a new
Registered Security or Registered Securities of the same series, for a like
aggregate principal amount and tenor, in authorized denominations.
Unless and until otherwise determined by the Company by resolution of
the Board of Directors, the register of the Company for the purpose of
registration,
23
exchange or registration of transfer of the Registered Securities shall be kept
at the corporate trust office of the Trustee and, for this purpose, the Trustee
shall be designated "Registrar".
Registered Securities of any series (other than a Global Security) may
be exchanged for a like aggregate principal amount and tenor of Registered
Securities of the same series of other authorized denominations. Subject to
Section 2.15, Registered Securities to be exchanged shall be surrendered at the
office or agency to be maintained by the Company as provided in Section 4.02,
and the Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor the Registered Security or Registered Securities which the
Holder making the exchange shall be entitled to receive.
(b) All Registered Securities presented or surrendered for
registration of transfer, exchange or payment shall (if so required by the
Company, the Trustee or the Registrar) be duly endorsed or be accompanied by a
written instrument or instruments of transfer, in form satisfactory to the
Company, the Trustee and the Registrar, duly executed by the Registered Holder
or his attorney duly authorized in writing.
All Debt Securities issued in exchange for or upon transfer of Debt
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture as the Debt
Securities surrendered for such exchange or transfer.
No service charge shall be made for any exchange or registration of
transfer of Debt Securities (except as provided by Section 2.09), but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto, other than those
expressly provided in this Indenture to be made at the Company's own expense or
without expense or without charge to the Holders.
The Company shall not be required (a) to issue, register the transfer
of or exchange any Debt Securities for a period of 15 days next preceding any
mailing of notice of redemption of Debt Securities of such series or (b) to
register the transfer of or exchange any Debt Securities selected, called or
being called for redemption in whole or in part, except, in the case of Debt
Securities to be redeemed in part, the portion thereof not to be so redeemed.
24
Prior to the due presentation for registration of transfer of any Debt
Security, the Company, the Trustee, any paying agent or any Registrar may deem
and treat the Person in whose name a Debt Security is registered as the absolute
owner of such Debt Security for the purpose of receiving payment of principal
of, and premium, if any, and (subject to Section 2.12(a)) interest on, such Debt
Security and for all other purposes whatsoever, whether or not such Debt
Security is overdue, and none of the Company, the Trustee, any paying agent or
Registrar shall be affected by notice to the contrary.
None of the Company, the Trustee, any agent of the Trustee, any paying
agent or any Registrar will have any responsibility or liability for any aspect
of the records relating to, or payments made on account of, beneficial ownership
interests of a Global Security or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
SECTION 2.08. Temporary Debt Securities. Pending the preparation of
--------------------------
definitive Debt Securities of any series, the Company may execute and the
Trustee shall authenticate and deliver temporary Debt Securities (printed,
lithographed, photocopied, typewritten or otherwise produced) of any authorized
denomination, and substantially in the form of the definitive Debt Securities in
lieu of which they are issued, in registered form and with such omissions,
insertions and variations as may be appropriate for temporary Debt Securities,
all as may be determined by the Company with the concurrence of the Trustee.
Temporary Debt Securities may contain such reference to any provisions of this
Indenture as may be appropriate. Every temporary Debt Security shall be
executed by the Company and be authenticated by the Trustee upon the same
conditions and in substantially the same manner, and with like effect, as the
definitive Debt Securities.
If temporary Debt Securities of any series are issued, the Company
will cause definitive Debt Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Debt Securities of such
series, the temporary Debt Securities of such series shall be exchangeable for
definitive Debt Securities of such series upon surrender of the temporary Debt
Securities of such series at the office or agency of the Company at a Place of
Payment for such series, without charge to the Holder thereof, except as
provided in Section 2.07 in connection with a transfer, and upon surrender for
cancelation of any one or more temporary Debt Securities of any series, the
Company shall execute and the Trustee shall
25
authenticate and deliver in exchange therefor a like principal amount of
definitive Debt Securities of the same series of authorized denominations and of
like tenor. Until so exchanged, temporary Debt Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as definitive
Debt Securities of such series, except as otherwise specified as contemplated by
Section 2.03(17) with respect to the payment of interest on Global Securities in
temporary form.
Upon any exchange of a portion of a temporary Global Security for a
definitive Global Security or for the individual Debt Securities represented
thereby pursuant to Section 2.07 or this Section 2.08, the temporary Global
Security shall be endorsed by the Trustee to reflect the reduction of the
principal amount evidenced thereby, whereupon the principal amount of such
temporary Global Security shall be reduced for all purposes by the amount so
exchanged and endorsed.
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Debt Securities.
-----------------------------------------------------
If (i) any mutilated Debt Security is surrendered to the Trustee at its
corporate trust office or (ii) the Company and the Trustee receive evidence to
their satisfaction of the destruction, loss or theft of any Debt Security, and
there is delivered to the Company and the Trustee such security or indemnity as
may be required by them to save each of them and any paying agent harmless, and
neither the Company nor the Trustee receives notice that such Debt Security has
been acquired by a bona fide purchaser, then the Company shall execute and, upon
a Company Order, the Trustee shall authenticate and deliver, in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Debt Security, a new
Debt Security of the same series of like tenor, form, terms and principal
amount, bearing a number not contemporaneously Outstanding. Upon the issuance
of any substituted Debt Security, the Company may require the payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses connected therewith. In case any Debt
Security which has matured or is about to mature or which has been called for
redemption shall become mutilated or be destroyed, lost or stolen, the Company
may, instead of issuing a substituted Debt Security, pay or authorize the
payment of the same (without surrender thereof except in the case of a mutilated
Debt Security) if the applicant for such payment shall furnish the Company and
the Trustee with such security or indemnity as either may require to save it
harmless from all risk, however remote, and, in case of destruction, loss or
theft, evidence to the satisfaction of
26
the Company and the Trustee of the destruction, loss or theft of such Debt
Security and of the ownership thereof.
Every substituted Debt Security of any series issued pursuant to the
provisions of this Section 2.09 by virtue of the fact that any Debt Security is
destroyed, lost or stolen shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Debt
Security shall be found at any time, and shall be entitled to all the benefits
of this Indenture equally and proportionately with any and all other Debt
Securities of that series duly issued hereunder. All Debt Securities shall be
held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Debt Securities, and shall preclude any and all other rights or
remedies, notwithstanding any law or statute existing or hereafter enacted to
the contrary with respect to the replacement or payment of negotiable
instruments or other securities without their surrender.
SECTION 2.10. Cancelation of Surrendered Debt Securities. All Debt
------------------------------- -----------
Securities surrendered for payment, redemption, registration of transfer or
exchange shall, if surrendered to the Company or any paying agent or a
Registrar, be delivered to the Trustee for cancelation by it, or if surrendered
to the Trustee, shall be canceled by it, and no Debt Securities shall be issued
in lieu thereof except as expressly permitted by any of the provisions of this
Indenture. All canceled Debt Securities held by the Trustee shall be disposed
of by the Trustee in accordance with its customary procedures, and certification
by the Trustee of their disposition shall be delivered to the Company, unless
otherwise directed. On request of the Company, the Trustee shall deliver to the
Company canceled Debt Securities held by the Trustee. If the Company shall
acquire any of the Debt Securities, however, such acquisition shall not operate
as a redemption or satisfaction of the indebtedness represented thereby unless
and until the same are delivered or surrendered to the Trustee for cancelation.
The Company may not issue new Debt Securities to replace Debt Securities it has
redeemed, paid or delivered to the Trustee for cancelation.
SECTION 2.11. Provisions of the Indenture and Debt Securities for the
-------------------------------------------------------
Sole Benefit of the Parties and the Holders. Nothing in this Indenture or in
--------------------------------------------
the Debt Securities, expressed or implied, shall give or be construed to give to
any Person, other than the parties hereto, the Holders or any Registrar or
paying agent or the holders of
27
Senior Indebtedness, if any, any legal or equitable right, remedy or claim under
or in respect of this Indenture, or under any covenant, condition or provision
herein contained; all its covenants, conditions and provisions being for the
sole benefit of the parties hereto, the Holders and any Registrar and paying
agents and the holders of Senior Indebtedness, if any.
SECTION 2.12. Payment of Interest; Rights Preserved. (a) Interest
--------------------------------------
on any Registered Security that is payable and is punctually paid or duly
provided for on any interest payment date shall be paid to the Person in whose
name such Registered Security is registered at the close of business on the
regular record date for such interest notwithstanding the cancellation of such
Registered Security upon any transfer or exchange subsequent to the regular
record date. Payment of interest on Registered Securities shall be made at the
corporate trust office of the Trustee (except as otherwise specified pursuant to
Section 2.03), or at the option of the Company, by check mailed to the address
of the Person entitled thereto as such address shall appear in the Debt Security
Register or, if provided pursuant to Section 2.03 and in accordance with
arrangements satisfactory to the Trustee, at the option of the Registered Holder
by wire transfer to an account designated by the Registered Holder.
(b) Subject to the foregoing provisions of this Section 2.12 and
Section 2.17, each Debt Security of a particular series delivered under this
Indenture upon registration of transfer of or in exchange for or in lieu of any
other Debt Security of the same series shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Debt
Security.
SECTION 2.13. Securities Denominated in Foreign Currencies. (a)
--------------------------------- -----------
Except as otherwise specified pursuant to Section 2.03 for Registered Securities
of any series, payment of the principal of, and premium, if any, and interest
on, Registered Securities of such series will be made in Dollars.
(b) For the purposes of calculating the principal amount of Debt
Securities of any series denominated in a Foreign Currency or in units of two or
more Foreign Currencies for any purpose under this Indenture, the principal
amount of such Debt Securities at any time Outstanding shall be deemed to be the
Dollar Equivalent of such principal amount as of the date of any such
calculation.
28
In the event any Foreign Currency or currencies or units of two or
more Currencies in which any payment with respect to any series of Debt
Securities may be made ceases to be a freely convertible Currency on United
States Currency markets, for any date thereafter on which payment of principal
of, or premium, if any, or interest on, the Debt Securities of a series is due,
the Company shall select the Currency of payment for use on such date, all as
provided in the Debt Securities of such series. In such event, the Company
shall, as provided in the Debt Securities of such series, notify the Trustee of
the Currency which it has selected to constitute the funds necessary to meet the
Company's obligations on such payment date and of the amount of such Currency to
be paid. Such amount shall be determined as provided in the Debt Securities of
such series. The payment to the Trustee with respect to such payment date shall
be made by the Company solely in the Currency so selected.
SECTION 2.14. Wire Transfers. Notwithstanding any other provision to
---------------
the contrary in this Indenture, the Company may make any payment of monies
required to be deposited with the Trustee on account of principal of, or
premium, if any, or interest on, the Debt Securities (whether pursuant to
optional or mandatory redemption payments, interest payments or otherwise) by
wire transfer of immediately available funds to an account designated by the
Trustee on or before the date such moneys are to be paid to the Holders of the
Debt Securities in accordance with the terms hereof.
SECTION 2.15. Securities Issuable in the Form of a Global Security.
-----------------------------------------------------
(a) If the Company shall establish pursuant to Sections 2.01 and 2.03 that the
Debt Securities of a particular series are to be issued in whole or in part in
the form of one or more Global Securities, then the Company shall execute and
the Trustee or its agent shall, in accordance with Section 2.05, authenticate
and deliver, such Global Security or Securities, which (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
the Outstanding Debt Securities of such series to be represented by such Global
Security or Securities, or such portion thereof as the Company shall specify in
an Officers' Certificate or Company Order, (ii) shall be registered in the name
of the Depositary for such Global Security or securities or its nominee, (iii)
shall be delivered by the Trustee or its agent to the Depositary or pursuant to
the Depositary's instruction and (iv) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for the
individual Debt Securities represented hereby,
29
this Global Security may not be transferred except as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary", or
such other legend as may then be required by the Depositary for such Global
Security or Securities.
(b) Notwithstanding any other provision of this Section 2.15 or of
Section 2.07 to the contrary, and subject to the provisions of paragraph (c)
below, unless the terms of a Global Security expressly permit such Global
Security to be exchanged in whole or in part for definitive Debt Securities in
registered form, a Global Security may be transferred, in whole but not in part
and in the manner provided in Section 2.07, only by the Depositary to a nominee
of the Depositary for such Global Security, or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary, or by the Depositary or a
nominee of the Depositary to a successor Depositary for such Global Security
selected or approved by the Company, or to a nominee of such successor
Depositary.
(c) (i) If at any time the Depositary for a Global Security or
Securities notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or Securities or if at any time the
Depositary for the Debt Securities for such series shall no longer be eligible
or in good standing under the Exchange Act or other applicable statute, rule or
regulation, the Company shall appoint a successor Depositary with respect to
such Global Security or Securities. If a successor Depositary for such Global
Security or Securities is not appointed by the Company within 90 days after the
Company receives such notice or becomes aware of such ineligibility, the Company
shall execute, and the Trustee or its agent, upon receipt of a Company Order for
the authentication and delivery of such individual Debt Securities of such
series in exchange for such Global Security, will authenticate and deliver,
individual Debt Securities of such series of like tenor and terms in definitive
form in an aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security or Securities.
(ii) The Company may at any time and in its sole discretion determine
that the Debt Securities of any series or portion thereof issued or issuable in
the form of one or more Global Securities shall no longer be represented by such
Global Security or Securities. In such event the Company will execute, and the
Trustee, upon receipt of a
30
Company Order for the authentication and delivery of individual Debt Securities
of such series in exchange in whole or in part for such Global Security, will
authenticate and deliver individual Debt Securities of such series of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of such series or portion thereof in exchange for such Global
Security or Securities.
(iii) If specified by the Company pursuant to Sections 2.01 and 2.03
with respect to Debt Securities issued or issuable in the form of a Global
Security, the Depositary for such Global Security may surrender such Global
Security in exchange in whole or in part for individual Debt Securities of such
series of like tenor and terms in definitive form on such terms as are
acceptable to the Company, the Trustee and such Depositary. Thereupon the
Company shall execute, and the Trustee or its agent upon receipt of a Company
Order for the authentication and delivery of definitive Debt Securities of such
series shall authenticate and deliver, without service charge, (1) to each
Person specified by such Depositary a new Debt Security or Securities of the
same series of like tenor and terms and of any authorized denomination as
requested by such Person in aggregate principal amount equal to and in exchange
for such Person's beneficial interest in the Global Security; and (2) to such
Depositary a new Global Security of like tenor and terms and in an authorized
denomination equal to the difference, if any, between the principal amount of
the surrendered Global Security and the aggregate principal amount of Debt
Securities delivered to Holders thereof.
(iv) In any exchange provided for in any of the preceding three
paragraphs, the Company will execute and the Trustee or its agent will
authenticate and deliver individual Debt Securities. Upon the exchange of the
entire principal amount of a Global Security for individual Debt Securities,
such Global Security shall be canceled by the Trustee or its agent. Except as
provided in the preceding paragraph, Registered Securities issued in exchange
for a Global Security pursuant to this Section 2.15 shall be registered in such
names and in such authorized denominations as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or the Registrar. The Trustee or the
Registrar shall deliver such Registered Securities to the Persons in whose names
such Registered Securities are so registered.
(v) Payments in respect of the principal of and interest on any Debt
Securities registered in the name of
31
the Depositary or its nominee will be payable to the Depositary or such nominee
in its capacity as the registered owner of such Global Security. The Company and
the Trustee may treat the Person in whose name the Debt Securities, including
the Global Security, are registered as the owner thereof for the purpose of
receiving such payments and for any and all other purposes whatsoever. None of
the Company, the Trustee, any Registrar, the paying agent or any agent of the
Company or the Trustee will have any responsibility or liability for (a) any
aspect of the records relating to or payments made on account of the beneficial
ownership interests of the Global Security by the Depositary or its nominee or
any of the Depositary's direct or indirect participants, or for maintaining,
supervising or reviewing any records of the Depositary, its nominee or any of
its direct or indirect participants relating to the beneficial ownership
interests of the Global Security, (b) the payments to the beneficial owners of
the Global Security of amounts paid to the Depositary or its nominee, or (c) any
other matter relating to the actions and practices of the Depositary, its
nominee or any of its direct or indirect participants. None of the Company, the
Trustee or any such agent will be liable for any delay by the Depositary, its
nominee, or any of its direct or indirect participants in identifying the
beneficial owners of the Debt Securities, and the Company and the Trustee may
conclusively rely on, and will be protected in relying on, instructions from the
Depositary or its nominee for all purposes (including with respect to the
registration and delivery, and the respective principal amounts, of the Debt
Securities to be issued).
SECTION 2.16. Medium Term Securities. Notwithstanding any contrary
-----------------------
provision herein, if all Debt Securities of a series are not to be originally
issued at one time, it shall not be necessary for the Company to deliver to the
Trustee an Officers' Certificate, resolutions of the Board of Directors,
supplemental Indenture, Opinion of Counsel or written order or any other
document otherwise required pursuant to Section 2.01, 2.03, 2.05 or 13.05 at or
prior to the time of authentication of each Debt Security of such series if such
documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first such Debt Security of such
series to be issued; provided, that any subsequent request by the Company to the
--------
Trustee to authenticate Debt Securities of such series upon original issuance
shall constitute a representation and warranty by the Company that, as of the
date of such request, the statements made in the Officers' Certificate delivered
pursuant to Section 2.05 or 13.05 shall be true and correct as if made on such
date and that the Opinion of Counsel delivered at or prior to such time of
32
authentication upon original issuance of Debt Securities shall specifically
state that it shall relate to all subsequent issuances of Debt Securities of
such series that are identical to the Debt Securities issued in the first
issuance of Debt Securities of such series.
A Company Order delivered by the Company to the Trustee in the
circumstances set forth in the preceding paragraph, may provide that Debt
Securities which are the subject thereof will be authenticated and delivered by
the Trustee or its agent on original issue from time to time upon the
telephonic, electronic or written order of Persons designated in such written
order (any such telephonic or electronic instructions to be promptly confirmed
in writing by such Person) and that such Persons are authorized to determine,
consistent with the Officers' Certificate, supplemental Indenture or resolution
of the Board of Directors relating to such written order, such terms and
conditions of such Debt Securities as are specified in such Officers'
Certificate, supplemental Indenture or such resolution.
SECTION 2.17. Defaulted Interest. Any interest on any Debt Security
-------------------
of a particular series which is payable, but is not punctually paid or duly
provided for, on the dates and in the manner provided in the Debt Securities of
such series and in this Indenture (herein called "Defaulted Interest") shall
forthwith cease to be payable to the Registered Holder thereof on the relevant
record date by virtue of having been such Registered Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series are
registered at the close of business on a special record date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner: The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each such Registered Security of
such series and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted
Interest as in this
33
clause provided. Thereupon the Trustee shall fix a special record date for
the payment of such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such
special record date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and
the special record date therefor to be mailed, first class postage prepaid,
to each Holder thereof at its address as it appears in the Debt Security
Register, not less than 10 days prior to such special record date. Notice
of the proposed payment of such Defaulted Interest and the special record
date therefor having been so mailed, such Defaulted interest shall be paid
to the Persons in whose names the Registered Securities of such series are
registered at the close of business on such special record date.
(ii) The Company may make payment of any Defaulted Interest on the
Registered Securities of such series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Registered Securities of such series may be listed, and upon such notice as
may be required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
SECTION 2.18. Judgments. The Company may provide pursuant to Section
----------
2.03 for Debt Securities of any series that (a) the obligation, if any, of the
Company to pay the principal of, and premium, if any, and interest on, the Debt
Securities of any series in a Foreign Currency or Dollars (the "Designated
Currency") as may be specified pursuant to Section 2.03 is of the essence and
agrees that, to the fullest extent possible under applicable law, judgments in
respect of Debt Securities of such series shall be given in the Designated
Currency; (b) the obligation of the Company to make payments in the Designated
Currency of the principal of, and premium, if any, and interest on, such Debt
Securities shall, notwithstanding any payment in any other Currency (whether
pursuant to a judgment or otherwise), be discharged only to the extent of the
amount in the Designated Currency that the Holder receiving such payment may, in
accordance with normal banking procedures, purchase with the sum paid in such
other Currency (after any premium and cost exchange) on the business day in the
country of
34
issue of the Designated Currency or in the international banking community (in
the case of a composite currency) immediately following the day on which such
Holder receives such payment; (c) if the amount in the Designated Currency that
may be so purchased for any reason falls short of the amount originally due, the
Company shall pay such additional amounts as may be necessary to compensate for
such shortfall; and (d) any obligation of the Company not discharged by such
payment shall be due as a separate and independent obligation and, until
discharged as provided herein, shall continue in full force and effect.
ARTICLE III
Redemption of Debt Securities
-----------------------------
SECTION 3.01. Applicability of Article. The provisions of this
-------------------------
Article shall be applicable to the Debt Securities of any series which are
redeemable before their Stated Maturity except as otherwise specified as
contemplated by Section 2.03 for Debt Securities of such series.
SECTION 3.02. Notice of Redemption; Selection of Debt Securities. In
---------------------------------------------------
case the Company shall desire to exercise the right to redeem all or any part of
the Debt Securities of any series, as the case may be, in accordance with their
terms, the Company shall fix a date for redemption and shall give notice of such
redemption at least 30 and not more than 60 days prior to the date fixed for
redemption to the Holders of Debt Securities of such series so to be redeemed as
a whole or in part, in the manner provided in Section 13.03. The notice if
given in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder receives such notice. In any case,
failure to give such notice or any defect in the notice to the Holder of any
Debt Security of a series designated for redemption as a whole or in part shall
not affect the validity of the proceedings for the redemption of any other Debt
Security of such series.
Each such notice of redemption shall specify the date fixed for
redemption, the redemption price at which Debt Securities of such series are to
be redeemed, the Place or Places of Payment that payment will be made upon
presentation and surrender of such Debt Securities, that any interest accrued to
the date fixed for redemption will be paid as specified in said notice, that the
redemption is for a sinking fund payment (if applicable), that, if the Company
defaults on making such redemption payment or if the Debt
35
Securities of that series are subordinated pursuant to the terms of Article XII
the paying agent is prohibited from making such payment pursuant to the terms of
this Indenture, that on and after said date any interest thereon or on the
portions thereof to be redeemed will cease to accrue, that in the case of
Original Issue Discount Securities original issue discount accrued after the
date fixed for redemption will cease to accrue, the provision of the Debt
Securities of that series pursuant to which the Debt Securities of that series
are being redeemed, the CUSIP numbers of the Debt Securities of that series
being redeemed and that no representation is made as to the correctness or
accuracy of the CUSIP number listed in such notice or printed on the Debt
Securities of that series. In case any Debt Security of a series is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Debt Security, a new Debt
Security or Debt Securities of that series in principal amount equal to the
unredeemed portion thereof will be authenticated and delivered in exchange for
the unredeemed portion of the principal of the Debt Security so surrendered.
At least 60 days before the redemption date unless the Trustee
consents to a shorter period, the Company shall give notice to the Trustee of
the redemption date, the principal amount of Debt Securities to be redeemed and
the series and terms of the Debt Securities pursuant to which such redemption
will occur. Such notice shall be accompanied by an Officers' Certificate and an
Opinion of Counsel from the Company to the effect that such redemption will
comply with the conditions herein.
On or prior to the redemption date for any Registered Securities, the
Company shall deposit with the Trustee or with a paying agent (or, if the
Company is acting as its own paying agent, segregate and hold in trust) an
amount of money in the Currency in which such Debt Securities are denominated
(except as provided pursuant to Section 2.03) sufficient to pay the redemption
price of such Registered Securities or any portions thereof that are to be
redeemed on that date.
If less than all the Debt Securities of like tenor and terms of a
series are to be redeemed (other than pursuant to mandatory sinking fund
redemptions), the Trustee shall select, in such manner as in its sole discretion
it shall deem appropriate and fair, the Debt Securities of that series or
portions thereof (in authorized denominations) to be redeemed. In any case
where more than one Registered
36
Security of such series is registered in the same name, the Trustee in its
discretion may treat the aggregate principal amount so registered as if it were
represented by one Registered Security of such series. The Trustee shall
promptly notify the Company in writing of the Debt Securities selected for
redemption and, in the case of any Debt Securities selected for partial
redemption, the principal amount thereof to be redeemed. If any Debt Security
called for redemption shall not be so paid upon surrender thereof on such
redemption date, the principal, premium, if any, and interest shall bear
interest until paid from the redemption date at the rate borne by the Debt
Securities of that series. If less than all the Debt Securities of unlike tenor
and terms of a series are to be redeemed, the particular Debt Securities to be
redeemed shall be selected by the Company. Provisions of this Indenture that
apply to Debt Securities called for redemption also apply to portions of Debt
Securities called for redemption.
SECTION 3.03. Payment of Debt Securities Called for Redemption. If
-------------------------------------------------
notice of redemption has been given as provided in Section 3.02, the Debt
Securities or portions of Debt Securities of the series with respect to which
such notice has been given shall become due and payable on the date and at the
Place or Places of Payment stated in such notice at the applicable redemption
price, together with any interest accrued to the date fixed for redemption, and
on and after said date (unless the Company shall default in the payment of such
Debt Securities at the applicable redemption price, together with any interest
accrued to said date) any interest on the Debt Securities or portions of Debt
Securities of any series so called for redemption shall cease to accrue and any
original issue discount in the case of Original Issue Discount Securities shall
cease to accrue. On presentation and surrender of such Debt Securities at the
Place or Places of Payment in said notice specified, the said Debt Securities or
the specified portions thereof shall be paid and redeemed by the Company at the
applicable redemption price, together with any interest accrued thereon to the
date fixed for redemption.
Any Debt Security that is to be redeemed only in part shall be
surrendered at the corporate trust office of the Trustee or such other office or
agency of the Company as is specified pursuant to Section 2.03, with, if the
Company, the Registrar or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company, the
Registrar and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing, and the Company shall execute, and the Trustee
37
shall authenticate and deliver to the Holder of such Debt Security without
service charge, a new Debt Security or Debt Securities of the same series, of
like tenor and form, of any authorized denomination as requested by such Holder
in aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Debt Security so surrendered; except that if a
Global Security is so surrendered, the Company shall execute, and the Trustee
shall authenticate and deliver to the Depositary for such Global Security,
without service charge, a new Global Security in a denomination equal to and in
exchange for the unredeemed portion of the principal of the Global Security so
surrendered. In the case of a Debt Security providing appropriate space for such
notation, at the option of the Holder thereof, the Trustee, in lieu of
delivering a new Debt Security or Debt Securities as aforesaid, may make a
notation on such Debt Security of the payment of the redeemed portion thereof.
SECTION 3.04. Mandatory and Optional Sinking Funds. The minimum
-------------------------------------
amount of any sinking fund payment provided for by the terms of Debt Securities
of any series, resolution of the Board of Directors or a supplemental Indenture
is herein referred to as a "mandatory sinking fund payment", and any payment in
excess of such minimum amount provided for by the terms of Debt Securities of
any series, resolution of the Board of Directors or a supplemental Indenture is
herein referred to as an "optional sinking fund payment".
In lieu of making all or any part of any mandatory sinking fund
payment with respect to any Debt Securities of a series in cash, the Company may
at its option (a) deliver to the Trustee Debt Securities of that series
theretofore purchased or otherwise acquired by the Company or (b) receive credit
for the principal amount of Debt Securities of that series which have been
redeemed either at the election of the Company pursuant to the terms of such
Debt Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Debt Securities, resolution or
supplemental Indenture; provided, that such Debt Securities have not been
--------
previously so credited. Such Debt Securities shall be received and credited for
such purpose by the Trustee at the redemption price specified in such Debt
Securities, resolution or supplemental Indenture for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 3.05. Redemption of Debt Securities for Sinking Fund. Not
-----------------------------------------------
less than 60 days prior to each sinking
38
fund payment date for any series of Debt Securities, the Company will deliver to
the Trustee an Officers' Certificate specifying the amount of the next ensuing
sinking fund payment for that series pursuant to the terms of that series, the
portion thereof, if any, which is to be satisfied by payment of cash in the
Currency in which the Debt Securities of such series are denominated (except as
provided pursuant to Section 2.03) and the portion thereof, if any, which is to
be satisfied by delivering and crediting Debt Securities of that series pursuant
to this Section 3.05 (which Debt Securities, if not previously redeemed, will
accompany such certificate), the basis for such credit and that such Debt
Securities have not been previously so credited and whether the Company intends
to exercise its right to make any permitted optional sinking fund payment with
respect to such series. Such certificate shall also state that no Event of
Default has occurred and is continuing with respect to such series. Such
certificate shall be irrevocable and upon its delivery the Company shall be
obligated to make the cash payment or payments therein referred to, if any, on
or before the next succeeding sinking fund payment date. Failure of the Company
to deliver such certificate (or to deliver the Debt Securities specified in this
paragraph) shall not constitute a Default, but such failure shall require that
the sinking fund payment due on the next succeeding sinking fund payment date
for that series shall be paid entirely in cash and shall be sufficient to redeem
the principal amount of such Debt Securities subject to a mandatory sinking fund
payment without the option to deliver or credit Debt Securities as provided in
this Section 3.05 and without the right to make any optional sinking fund
payment, if any, with respect to such series.
Any sinking fund payment or payments (mandatory or optional) made in
cash plus any unused balance of any preceding sinking fund payments made in cash
which shall equal or exceed $100,000 (or a lesser sum if the Company shall so
request) with respect to the Debt Securities of any particular series shall be
applied by the Trustee on the sinking fund payment date on which such payment is
made (or, if such payment is made before a sinking fund payment date, on the
sinking fund payment date following the date of such payment) to the redemption
of such Debt Securities at the redemption price specified in such Debt
Securities, resolution or supplemental Indenture for operation of the sinking
fund together with any accrued interest to the date fixed for redemption. Any
sinking fund moneys not so applied or allocated by the Trustee to the redemption
of Debt Securities shall be added to the next cash sinking fund payment received
by the Trustee for such series and,
39
together with such payment, shall be applied in accordance with the provisions
of this Section 3.05. Any and all sinking fund moneys with respect to the Debt
Securities of any particular series held by the Trustee on the last sinking fund
payment date with respect to Debt Securities of such series and not held for the
payment or redemption of particular Debt Securities shall be applied by the
Trustee, together with other moneys, if necessary, to be deposited sufficient
for the purpose, to the payment of the principal of the Debt Securities of that
series at its Stated Maturity.
The Trustee shall select the Debt Securities to be redeemed upon such
sinking fund payment date in the manner specified in the last paragraph of
Section 3.02 and the Company shall cause notice of the redemption thereof to be
given in the manner provided in Section 3.02 except that the notice of
redemption shall also state that the Debt Securities are being redeemed by
operation of the sinking fund. Such notice having been duly given, the
redemption of such Debt Securities shall be made upon the terms and in the
manner stated in Section 3.03.
At least one business day before each sinking fund payment date, the
Company shall pay to the Trustee (or, if the Company is acting as its own paying
agent, the Company shall segregate and hold in trust) in cash a sum in the
Currency in which the Debt Securities of such series are denominated (except as
provided pursuant to Section 2.03) equal to any interest accrued to the date
fixed for redemption of Debt Securities or portions thereof to be redeemed on
such sinking fund payment date pursuant to this Section 3.05.
The Trustee shall not redeem any Debt Securities of a series with
sinking fund moneys or mail any notice of redemption of such Debt Securities by
operation of the sinking fund for such series during the continuance of a
Default in payment of interest on such Debt Securities or of any Event of
Default (other than an Event of Default occurring as a consequence of this
paragraph) with respect to such Debt Securities, except that if the notice of
redemption of any such Debt Securities shall theretofore have been mailed in
accordance with the provisions hereof, the Trustee shall redeem such Debt
Securities if cash sufficient for that purpose shall be deposited with the
Trustee for that purpose in accordance with the terms of this Article III.
Except as aforesaid, any moneys in the sinking fund for such series at the time
when any such Default or Event of Default shall occur and any moneys thereafter
paid into such sinking fund shall, during the
40
continuance of such Default or Event of Default, be held as security for the
payment of the Debt Securities of such series; provided, however, that in case
-------- -------
such Event of Default or Default shall have been cured or waived as provided
herein, such moneys shall thereafter be applied on the next sinking fund payment
date for such Debt Securities on which such moneys may be applied pursuant to
the provisions of this Section 3.05.
ARTICLE IV
Particular Covenants of the Company
-----------------------------------
SECTION 4.01. Payment of Principal of, and Premium, If Any, and
-------------------------------------------------
Interest on, Debt Securities. The Company, for the benefit of each series of
-----------------------------
Debt Securities, will duly and punctually pay or cause to be paid the principal
of, and premium, if any, and interest on, each of the Debt Securities at the
place, at the respective times and in the manner provided herein and in the Debt
Securities. Each installment of interest on the Debt Securities may at the
Company's option be paid by mailing checks for such interest payable to the
Person entitled thereto to the address of such Person as it appears on the Debt
Security Register maintained pursuant to Section 2.07(a) or, if provided
pursuant to Section 2.03 and in accordance with arrangements satisfactory to the
Trustee, at the option of the Registered Holder by wire transfer to an account
designated by the Registered Holder.
Principal, premium and interest of Debt Securities of any series shall
be considered paid on the date due if on such date the Trustee or any paying
agent holds in accordance with this Indenture money sufficient to pay in the
Currency in which the Debt Securities of such series are denominated (except as
provided pursuant to Section 2.03) all principal, premium and interest then due
and, in the case of Debt Securities subordinated pursuant to the terms of
Article XII, the Trustee or such paying agent, as the case may be, is not
prohibited from paying such money to the Holders on that date pursuant to the
terms of the Indenture.
The Company shall pay interest on overdue principal at the rate
specified therefor in the Debt Securities and it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
SECTION 4.02. Maintenance of Offices or Agencies for Registration of
------------------------------------------------------
Transfer, Exchange and Payment of Debt Securities. The Company will maintain in
--------------------------------------------------
each Place of
41
Payment for any series of Debt Securities, an office or agency where Debt
Securities of such series may be presented or surrendered for payment, where
Debt Securities of such series may be surrendered for registration of transfer
or exchange and where notices and demands to or upon the Company in respect of
the Debt Securities of such series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change
in the location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the corporate trust office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all
presentations, surrenders, notices and demands.
The Company may also from time to time designate different or
additional offices or agencies to be maintained for such purposes (in or outside
of such Place of Payment), and may from time to time rescind any such
designation; provided, however, that no such designation or rescission shall in
-------- -------
any manner relieve the Company of its obligations described in the preceding
paragraph. The company will give prompt written notice to the Trustee of any
such additional designation or rescission of designation and any change in the
location of any such different or additional office or agency.
SECTION 4.03. Appointment to Fill a Vacancy in the Office of Trustee.
------------------------------------------------------
The Company, whenever necessary to avoid or fill a vacancy in the office of
Trustee, will appoint, in the manner provided in Section 7.08, a Trustee, so
that there shall at all times be a Trustee hereunder with respect to each series
of Debt Securities.
SECTION 4.04. Duties of Paying Agents, etc. (a) The Company shall
-----------------------------
cause each paying agent, if any, other than the Trustee, to execute and deliver
to the Trustee an instrument in which such agent shall agree with the Trustee,
subject to the provisions of this Section 4.04,
(i) that it will hold all sums held by it as such agent for the
payment of the principal of, and premium, if any, or interest on, the Debt
Securities of any series (whether such sums have been paid to it by the
Company or by any other obligor on the Debt Securities of such series) in
trust for the benefit of the Holders of the Debt Securities of such series;
42
(ii) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Debt Securities of such series) to
make any payment of the principal of and premium, if any, or interest on,
the Debt Securities of such series when the same shall be due and payable;
and
(iii) that it will at any time during the continuance of an Event of
Default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held by it as such agent.
(b) If the Company shall act as its own paying agent, it will, on or
before each due date of the principal of, and premium, if any, or interest, if
any, on, the Debt Securities of any series, set aside, segregate and hold in
trust for the benefit of the Holders of the Debt Securities of such series a sum
sufficient to pay such principal, premium, if any, or interest so becoming due.
The Company will promptly notify the Trustee of any failure by the Company to
take such action or the failure by any other obligor on such Debt Securities to
make any payment of the principal of, and premium, if any, or interest on, such
Debt Securities when the same shall be due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by it or any paying agent, as required by
this Section 4.04, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such paying agent.
(d) Whenever the Company shall have one or more paying agents with
respect to any series of Debt Securities, it will, prior to each due date of the
principal of, and premium, if any, or interest on, any Debt Securities of such
series, deposit with any such paying agent a sum sufficient to pay the
principal, premium or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled thereto, and (unless any such paying agent
is the Trustee) the Company will promptly notify the Trustee of its action or
failure so to act.
(e) Anything in this Section 4.04 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 4.04 is subject
to the provisions of Section 11.05.
43
SECTION 4.05. Statement by Officers as to Default. The Company will
------------------------------------
deliver to the Trustee, on or before a date not more than four months after the
end of each fiscal year of the Company (currently on a calendar year basis)
ending after the date hereof, an Officers' Certificate, one of the signatories
of which shall be the Company's principal executive officer, principal
accounting officer or principal financial officer, stating, as to each officer
signing such certificate, that (i) in the course of his performance of his
duties as an officer of the Company he would normally have knowledge of any
Default, (ii) whether or not to the best of his knowledge any Default occurred
during such year and (iii) if to the best of his knowledge the Company is in
Default, specifying all such Defaults and what action the Company is taking or
proposes to take with respect thereto. The Company also shall comply with
Section 314(a)(4) of the Trust Indenture Act.
SECTION 4.06. Further Instruments and Acts. The Company will, upon
-----------------------------
request of the Trustee, execute and deliver such further instruments and do such
further acts as may reasonably be necessary or proper to carry out more
effectually the purposes of this Indenture.
SECTION 4.07. Existence. Subject to Article X, the Company will do
----------
or cause to be done all, things necessary to preserve and keep in full force and
effect its existence and rights (charter and statutory); provided, however, that
-------- -------
the Company shall not be required to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 4.08. Maintenance of Properties. The Company will cause all
--------------------------
properties used or useful in the conduct of its business or the business of any
Subsidiary to be maintained and kept in good condition, repair and working order
in all material respects and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on by the
Company and its subsidiaries may be properly and advantageously conducted at all
times; provided, however, that nothing in this Section shall prevent the Company
-------- -------
or a Subsidiary from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, not
materially detrimental to the conduct of the business of the Company and its
Subsidiaries,
44
taken as a whole, and not disadvantageous in any material respect to the
Holders.
SECTION 4.09. Payment of Taxes and Other Claims. The Company will pay
----------------------------------
or discharge or cause to be paid or discharged, before the same shall become
delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a Lien upon the
property of the Company or any Subsidiary, provided, however, that the Company
-------- -------
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
ARTICLE V
Holders' Lists and Reports
--------------------------
by the Company and the Trustee
------------------------------
SECTION 5.01. Company to Furnish Trustee Information as to Names and
------------------------------------------------------
Addresses of Holders; Preservation of Information. The Company covenants and
--------------------------------------------------
agrees that it will furnish or cause to be furnished to the Trustee with respect
to the Registered Securities of each series:
(a) not more than 15 days after each record date with respect to the
payment of interest, if any, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Registered Holders as
of such record date, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list as of
a date not more than 15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee shall be the Registrar, such
-------- -------
lists shall not be required to be furnished.
The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders (1)
contained in the most recent list furnished to it as provided in this Section
5.01
45
or (2) received by it in the capacity of paying agent or Registrar (if so
acting) hereunder.
The Trustee may destroy any list furnished to it as provided in this
Section 5.01 upon receipt of a new list so furnished.
SECTION 5.02. Communications to Holders. Holders may communicate
--------------------------
pursuant to Section 312(b) of the Trust Indenture Act with other Holders with
respect to their rights under this Indenture or the Debt Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
Section 312(c) of the Trust Indenture Act.
SECTION 5.03. Reports by Company. (a) The Company covenants and
-------------------
agrees, and any obligor hereunder shall covenant and agree, to file with the
Trustee, within 15 days after the Company or such obligor, as the case may be,
is required to file the same with the Securities and Exchange Commission, copies
of the annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as said Commission may from time
to time by rules and regulations prescribe) which the Company or such obligor,
as the case may be, may be required to file with said Commission pursuant to
Section 13 or Section 15(d) of the Exchange Act; or, if the Company or such
obligor, as the case may be, is not required to file information, documents or
reports pursuant to either of such Sections, then to file with the Trustee and
said Commission, in accordance with rules and regulations prescribed from time
to time by said Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of the
Exchange Act in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such rules and
regulations.
(b) The Company covenants and agrees, and any obligor hereunder shall
covenant and agree, to file with the Trustee and the Securities and Exchange
Commission, in accordance with the rules and regulations prescribed from time to
time by said Commission, such additional information, documents, and reports
with respect to compliance by the Company or such obligor, as the case may be,
with the conditions and covenants provided for in this Indenture as may be
required from time to time by such rules and regulations.
SECTION 5.04. Reports by Trustee. Within 60 days after May 15 of
-------------------
each year commencing with the first May 15
46
after the first issuance of Debt Securities pursuant to this Indenture, the
Trustee shall transmit to the Holders, in the manner and to the extent provided
in Section 313(c) of the Trust Indenture Act, a brief report dated as of such
May 15 if required by Section 313(a) of the Trust Indenture Act.
The Trustee shall comply with Sections 313(b) and 313(c) of the Trust
Indenture Act.
A copy of each report at the time of its mailing to Holders shall be
filed with the Securities and Exchange Commission and each stock exchange (if
any) on which the Debt Securities of any series are listed. The Company agrees
to notify promptly the Trustee whenever the Debt Securities of any series become
listed on any stock exchange and of any delisting thereof.
SECTION 5.05. Record Dates for Action by Holders. If the Company
-----------------------------------
shall solicit from the Holders of Debt Securities of any series any action
(including the making of any demand or request, the giving of any direction,
notice, consent or waiver or the taking of any other action), the Company may,
at its option, by resolution of the Board of Directors, fix in advance a record
date for the determination of Holders of Debt Securities entitled to take such
action, but the Company shall have no obligation to do so. Any such record date
shall be fixed at the Company's discretion. If such a record date is fixed,
such action may be sought or given before or after the record date, but only the
Holders of Debt Securities of record at the close of business on such record
date shall be deemed to be Holders of Debt Securities for the purpose of
determining whether Holders of the requisite proportion of Debt Securities of
such series Outstanding have authorized or agreed or consented to such action,
and for that purpose the Debt Securities of such series Outstanding shall be
computed as of such record date.
ARTICLE VI
Remedies of the Trustee and Holders in Event of Default
-------------------------------------------------------
SECTION 6.01. Events of Default. If any one or more of the following
------------------
shall have occurred and be continuing with respect to Debt Securities of any
series (each of the following, an "Event of Default"):
(a) Default in the payment of any installment of interest upon any
Debt Securities of that series as and when the same shall become due and
payable, whether or
47
not such payment shall be prohibited by Article XII, if applicable, and
continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or premium, if any, on
any Debt Securities of that series as and when the same shall become due
and payable, whether at maturity, upon redemption, by declaration, upon
required repurchase or otherwise, whether or not such payment shall be
prohibited by Article XII, if applicable; or
(c) default in the payment of any sinking fund payment with respect to
any Debt Securities of that series as and when the same shall become due
and payable; or
(d) failure on the part of the Company to comply with Article X; or
(e) failure on the part of the Company duly to observe or perform any
other of the covenants or agreements on the part of the Company in the Debt
Securities of that series, in any resolution of the Board of Directors
authorizing the issuance of that series of Debt Securities, in this
Indenture with respect to such series or in any supplemental Indenture with
respect to such series (other than a covenant a default in the performance
of which is elsewhere in this Section specifically dealt with), continuing
for a period of 60 days after the date on which written notice, specifying
such failure, requiring the Company to remedy the same and stating that
such written notice is a "Notice of Default" hereunder, shall have been
given by registered or certified mail to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Debt Securities of that series at the time
Outstanding; or
(f) Indebtedness of the Company or any Subsidiary of the Company is
not paid within any applicable grace period after final maturity or is
accelerated by the holders thereof because of a default, the total amount
of such Indebtedness unpaid or accelerated exceeds $40,000,000 or its
Dollar Equivalent at the time and such default remains uncured or such
acceleration is not rescinded for 10 days after the date on which written
notice specifying such failure and requiring the Company to remedy the same
shall have been given, by registered or certified mail, to the Company by
the
48
Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Debt Securities of that series at the
time Outstanding; or
(g) the Company shall (i) voluntarily commence any proceeding or file
any petition seeking relief under Title 11 of the United States Code or any
other Federal or State bankruptcy, insolvency or similar law, (ii) consent
to the institution of, or fail to controvert within the time and in the
manner prescribed by law, any such proceeding or the filing of any such
petition, (iii) apply for or consent to the appointment of a receiver,
trustee, custodian, sequestrator or similar official for the Company or for
a substantial part of its property, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding,
(v) make a general assignment for the benefit of creditors, (vi) admit in
writing its inability or fail generally to pay its debts as they become
due, (vii) take corporate action for the purpose of effecting any of the
foregoing, or (viii) take any comparable action under any foreign laws
relating to insolvency; or
(h) the entry of an order or decree by a court having competent
jurisdiction in the premises for (i) relief in respect of the Company or a
substantial part of its property under Title 11 or the United States Code
or any other Federal or State bankruptcy, insolvency or similar law, (ii)
the appointment of a receiver, trustee, custodian, sequestrator or similar
official for the Company or for a substantial part of its property, or
(iii) the winding-up or liquidation of the Company; and such order or
decree shall continue unstayed and in effect for 60 consecutive days; or
any similar relief is granted under any foreign laws and the order or
decree stays in effect for 60 consecutive days; or
(i) any other Event of Default provided under the terms of the Debt
Securities of that series;
then and in each and every case that an Event of Default with respect to Debt
Securities of that series at the time outstanding occurs and is continuing,
unless the principal of and interest on all the Debt Securities of that series
shall have already become due and payable, either the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Debt Securities of that
series then Outstanding hereunder, by notice in writing to the Company
49
(and to the Trustee if given by Holders), may declare the principal of (or, if
the Debt Securities of that series are Original Issue Discount Debt Securities,
such portion of the principal amount as may be specified in the terms of that
series) and interest on all the Debt Securities of that series to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, anything in this Indenture or in the Debt
Securities of that series contained to the contrary notwithstanding.
The Holders of a majority in principal amount of the Debt Securities
of a particular series by notice to the Trustee may rescind an acceleration and
its consequences if the rescission would not conflict with any judgment or
decree already rendered and if all existing Events of Default have been cured or
waived except nonpayment of principal or interest that has become due solely
because of acceleration and if the Company shall have paid or deposited with the
Trustee a sum sufficient to pay all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel. Upon any such rescission, the parties
hereto shall be restored respectively to their several positions and rights
hereunder, and all rights, remedies and powers of the parties hereto shall
continue as though no proceeding had been taken.
In case the Trustee or any Holder shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or
abandoned because of such rescission or annulment or for any other reason or
shall have been determined adversely to the Trustee or such Holder, then and in
every such case the parties hereto shall be restored respectively to their
several positions and rights hereunder, and all rights, remedies and powers of
the parties hereto shall continue as though no such proceeding had been taken.
The foregoing Events of Default shall constitute Events of Default
whatever the reason for any such Event of Default and whether it is voluntary or
involuntary or is effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
The Company shall deliver to the Trustee, within 30 days after the
occurrence thereof, written notice in the form of an Officers' Certificate of
any event which with the giving of notice and the lapse of time would become an
Event of Default under clause (c), (d), (e), (f), (g), (h) or (i),
50
its status and what action the Company is taking or proposes to take with
respect thereto.
SECTION 6.02. Collection of Indebtedness by Trustee, etc. If an
-------------------------------------------
Event of Default occurs and is continuing, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due
and unpaid or enforce the performance of any provision of the Debt Securities of
the affected series or this Indenture, and may prosecute any such action or
proceedings to judgment or final decree, and may enforce any such judgment or
final decree against the Company or any other obligor upon the Debt Securities
of such series (and collect in the manner provided by law out of the property of
the Company or any other obligor upon the Debt Securities of such series
wherever situated the moneys adjudged or decreed to be payable).
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor upon the Debt Securities
of any series under Title 11 of the United States Code or any other Federal or
State bankruptcy, insolvency or similar law, or in case a receiver, trustee or
other similar official shall have been appointed for its property, or in case of
any other similar judicial proceedings relative to the Company or any other
obligor upon the Debt Securities of any series, its creditors or its property,
the Trustee, irrespective of whether the principal of Debt Securities of any
series shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand
pursuant to the provisions of this Section 6.02, shall be entitled and
empowered, by intervention in such proceedings or otherwise, to file and prove a
claim or claims for the whole amount of principal, premium, if any, and interest
(or, if the Debt Securities of such series are Original Issue Discount Debt
Securities, such portion of the principal amount as may be specified in the
terms of such series) owing and unpaid in respect of the Debt Securities of such
series, and to file such other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
for reimbursement of all expenses and liabilities Incurred, and all advances
made, by the Trustee except as a result of its negligence or bad faith) and of
the Holders thereof allowed in any such judicial proceedings relative to the
Company, or any other obligor upon the Debt Securities of such series, its
creditors or its property, and to collect and receive
51
any moneys or other property payable or deliverable on any such claims, and to
distribute all amounts received with respect to the claims of such Holders and
of the Trustee on their behalf, and any receiver, assignee or trustee in
bankruptcy or reorganization is hereby authorized by each of such Holders to
make payments to the Trustee, and, in the event that the Trustee shall consent
to the making of payments directly to such Holders, to pay to the Trustee such
amount as shall be sufficient to cover reasonable compensation to the Trustee,
its agents, attorneys and counsel, and all other reasonable expenses and
liabilities Incurred, and all advances made, by the Trustee except as a result
of its negligence or bad faith.
All rights of action and of asserting claims under this Indenture, or
under any of the Debt Securities, of any series, may be enforced by the Trustee
without the possession of any such Debt Securities or the production thereof in
any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment (except for any
amounts payable to the Trustee pursuant to Section 7.06) shall be for the
ratable benefit of the Holders of all the Debt Securities in respect of which
such action was taken.
In case of an Event of Default hereunder the Trustee may in its
discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
most effectual to protect and enforce any of such rights, either at law or in
equity or in bankruptcy or otherwise, whether for the specific enforcement of
any covenant or agreement contained in this Indenture or in aid of the exercise
of any power granted in this Indenture, or to enforce any other legal or
equitable right vested in the Trustee by this Indenture or by law.
SECTION 6.03. Application of Moneys Collected by Trustee. Any moneys
-------------------------------------------
or other property collected by the Trustee pursuant to Section 6.02 with respect
to Debt Securities of any series shall be applied in the order following, at the
date or dates fixed by the Trustee for the distribution of such moneys or other
property, upon presentation of the several Debt Securities of such series in
respect of which moneys or other property have been collected, and the notation
thereon of the payment, if only partially paid, and upon surrender thereof if
fully paid:
First: To the payment of all money due the Trustee pursuant to
-----
Section 7.06;
52
Second: As provided in Article XII, if applicable;
------
Third: In case the principal of the Outstanding Debt Securities in
-----
respect of which such moneys have been collected shall not have become due,
to the payment of interest on the Debt Securities of such series in the
order of the maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by the Trustee) upon
the overdue installments of interest at the rate or Yield to Maturity (in
the case of Original Issue Discount Debt Securities) borne by the Debt
Securities of such series, such payments to be made ratably to the Persons
entitled thereto, without discrimination or preference;
Fourth: In case the principal of the Outstanding Debt Securities in
------
respect of which such moneys have been collected shall have become due, by
declaration or otherwise, to the payment of the whole amount then owing and
unpaid upon the Debt Securities of such series for principal and premium,
if any, and interest, with interest on the overdue principal and premium,
if any, and (to the extent that such interest has been collected by the
Trustee) upon overdue installments of interest at the rate or Yield to
Maturity (in the case of Original Issue Discount Debt Securities) borne by
the Debt Securities of such series; and, in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the
Debt Securities of such series, then to the payment of such principal and
premium, if any, and interest, without preference or priority of principal
and premium, if any, over interest, or of interest over principal and
premium, if any, or of any installment of interest over any other
installment of interest, or of any Debt Security of such series over any
Debt Security of such series, ratably to the aggregate of such principal
and premium, if any, and interest; and
Fifth: The remainder, if any, shall be paid to the Company, its
-----
successors or assigns, or to whomsoever may be lawfully entitled to receive
the same, or as a court of competent jurisdiction may direct.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.03. At least 15 days before such record date,
the Company shall mail to each Holder and the Trustee a notice that states the
record date, the payment date and amount to be paid.
53
SECTION 6.04. Limitation on Suits by Holders. No Holder of any Debt
-------------------------------
Security of any series shall have any right by virtue or by availing of any
provision of this Indenture to institute any action or proceeding at law or in
equity or in bankruptcy or otherwise, upon or under or with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless such Holder previously shall have given to the Trustee
written notice of an Event of Default with respect to Debt Securities of that
same series and of the continuance thereof and unless the Holders of not less
than 25% in aggregate principal amount of the Outstanding Debt Securities of
that series shall have made written request upon the Trustee to institute such
action or proceedings in respect of such Event of Default in its own name as
Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
Incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action or proceedings and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 6.06; it being
understood and intended, and being expressly covenanted by the Holder of every
Debt Security with every other Holder and the Trustee, that no one or more
Holders shall have any right in any manner whatever by virtue or by availing of
any provision of this Indenture to affect, disturb or prejudice the rights of
any Holders, or to obtain or seek to obtain priority over or preference to any
other such Holder, or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all such
Holders. For the protection and enforcement of the provisions of this Section
6.04, each and every Holder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Notwithstanding any other provision in this Indenture, however, the
right of any Holder of any Debt Security to receive payment of the principal of,
and premium, if any, and (subject to Section 2.12) interest on, such Debt
Security on or after the respective due dates expressed in such Debt Security,
and to institute suit for the enforcement of any such payment on or after such
respective dates, shall not be impaired or effected without the consent of such
Holder.
SECTION 6.05. Remedies Cumulative; Delay or Omission in Exercise of
-----------------------------------------------------
Rights Not a Waiver of Default. All powers and remedies given by this Article
-------------------------------
VI to the Trustee or to the Holders shall, to the extent permitted by law, be
54
deemed cumulative and not exclusive of any thereof or of any other powers and
remedies available to the Trustee or the Holders, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any Holder to exercise any right or power accruing upon any Default
occurring and continuing as aforesaid, shall impair any such right or power, or
shall be construed to be a waiver of any such Default or an acquiescence
therein; and, subject to the provisions of Section 6.04, every power and remedy
given by this Article VI or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as shall be deemed expedient, by the
Trustee or by the Holders.
SECTION 6.06. Rights of Holders of Majority in Principal Amount of
----------------------------------------------------
Debt Securities to Direct Trustee and to Waive Default. The Holders of a
-------------------------------------------------------
majority in aggregate principal amount of the Debt Securities of any series at
the time Outstanding shall have the right to direct the time, method, and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the Debt
Securities of such series; provided, however, that such direction shall not be
-------- -------
otherwise than in accordance with law and the provisions of this Indenture, and
that subject to the provisions of Section 7.01, the Trustee shall have the right
to decline to follow any such direction if the Trustee being advised by counsel
shall determine that the action so directed may not lawfully be taken, or if the
Trustee shall by a responsible officer or officers determine that the action so
directed would involve it in personal liability or would be unjustly prejudicial
to Holders of Debt Securities of such series not taking part in such direction;
and provided further, however, that nothing in this Indenture contained shall
---------------- -------
impair the right of the Trustee to take any action deemed proper by the Trustee
and which is not inconsistent with such direction by such Holders. The Holders
of a majority in aggregate principal amount of the Debt Securities of that
series at the time Outstanding may on behalf of the Holders of all the Debt
Securities of that series waive any past Default or Event of Default and its
consequences for that series specified in the terms thereof as contemplated by
Section 2.03, except (i) a Default in the payment of the principal of, and
premium, if any, or interest on, any of the Debt Securities and (ii) a Default
in respect of a provision that under Section 9.02 cannot be amended without the
consent of each Holder affected thereby. In case of any such waiver, such
Default shall cease to exist, any Event of Default arising therefrom shall be
deemed to have been cured for every purpose of this
55
Indenture, and the Company, the Trustee and the Holders of the Debt Securities
of that series shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.
SECTION 6.07. Trustee to Give Notice of Defaults Known to It, but May
-------------------------------------------------------
Withhold Such Notice in Certain Circumstances. The Trustee shall, within 90
----------------------------------------------
days after the occurrence of a Default known to it with respect to a series of
Debt Securities give to the Holders thereof, in the manner provided in Section
13.03, notice of all Defaults with respect to such series known to the Trustee,
unless such Defaults shall have been cured or waived before the giving of such
notice; provided that, except in the case of Default in the payment of the
--------
principal of, or premium, if any, or interest on, any of the Debt Securities of
such series or in the making of any sinking fund payment with respect to the
Debt Securities of such series, the Trustee shall be protected in withholding
such notice if and so long as the board of directors, the executive committee or
a committee of directors or responsible officers of the Trustee in good faith
determine that the withholding of such notice is in the interests of the Holders
thereof.
SECTION 6.08. Requirement of an Undertaking to Pay Costs in Certain
-----------------------------------------------------
Suits under the Indenture or Against the Trustee. All parties to this Indenture
-------------------------------------------------
agree, and each Holder of any Debt Security by his acceptance thereof shall be
deemed to have agreed, that any court may in its discretion require, in any suit
for the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of an undertaking to pay the costs of such
suit in the manner and to the extent provided in the Trust Indenture Act, and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this Section 6.08 shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than ten percent in principal amount of
the Outstanding Debt Securities of that series or to any suit instituted by any
Holder for the enforcement of the payment of the principal of, or premium, if
any, or interest on, any Debt Security on or after the due date for such payment
expressed in such Debt Security.
56
ARTICLE VII
Concerning the Trustee
----------------------
SECTION 7.01. Certain Duties and Responsibilities. The Trustee,
------------------------------------
prior to the occurrence of an Event of Default and after the curing or waiving
of all Events of Default which may have occurred, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture. In
case an Event of Default has occurred (which has not been cured or waived), the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that:
(a) this subsection shall not be construed to limit the effect of the
first paragraph of this Section 7.01;
(b) prior to the occurrence of an Event of Default with respect to the
Debt Securities of a series and after the curing or waiving of all Events
of Default with respect to such series which may have occurred:
(1) the duties and obligations of the Trustee with respect to
Debt Securities of such series shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be
liable except for the performance of such duties and obligations with
respect to such series as are specifically set forth in this
Indenture, and no implied covenants or obligations with respect to
such series shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on the part of the Trustee, the
Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished
57
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Indenture; but the Trustee shall examine the evidence furnished to it
pursuant to Section 5.03 to determine whether or not such evidence
conforms to the requirement of this Indenture;
(c) the Trustee shall not be liable for an error of judgment made in
good faith by a responsible officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(d) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it with respect to Debt Securities of any series
in good faith in accordance with the direction of the Holders of not less
than a majority in aggregate principal amount of the Outstanding Debt
Securities of that series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture with respect to Debt Securities of such series; and
(e) none of the provisions of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any personal financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if there shall be reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 7.02. Certain Rights of Trustee. Except as otherwise
--------------------------
provided in Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
58
(b) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Company Order (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a
copy thereof certified by the Secretary or an Assistant Secretary of the
Company;
(c) the Trustee may consult with counsel, and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders of Debt Securities of any series pursuant
to the provisions of this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses
and liabilities which may be Incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by
it in good faith and reasonably believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default and after the
curing or waiving of all Events of Default which may have occurred, the
Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, approval or
other paper or document, unless requested in writing to do so by the
Holders of a majority in aggregate principal amount of the then outstanding
Debt Securities of a series affected by such matter; provided, however,
-------- -------
that if the payment within a reasonable time to the Trustee of the costs,
expenses or liabilities likely to be Incurred by it in the making of such
investigation is not, in the opinion of the Trustee, reasonably assured to
the Trustee by the security afforded to it by the terms of this Indenture,
the Trustee may require reasonable indemnity against such costs, expenses
or liabilities as a condition to so proceeding. The reasonable expense of
every such investigation shall be
59
paid by the Company or, if paid by the Trustee, shall be repaid by the
Company upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due
care hereunder; and
(h) if any property other then cash shall at any time be subject to a
Lien in favor of the Holders, the Trustee, if and to the extent authorized
by a receivership or bankruptcy court of competent jurisdiction or by the
supplemental instrument subjecting such property to such Lien, shall be
entitled to make advances for the purpose of preserving such property or of
discharging tax Liens or other prior Liens or encumbrances thereon.
SECTION 7.03. Trustee Not Liable for Recitals in Indenture or in Debt
-------------------------------------------------------
Securities. The recitals contained herein and in the Debt Securities (except
-----------
the Trustee's certificate of authentication) shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of
the same. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Debt Securities of any series, except
that the Trustee represents that it is duly authorized to execute and deliver
this Indenture, authenticate the Debt Securities and perform its obligations
hereunder, and that the statements made by it or to be made by it in a Statement
of Eligibility and Qualification on Form T-1 supplied to the Company are true
and accurate. The Trustee shall not be accountable for the use or application
by the Company of any of the Debt Securities or of the proceeds thereof. The
Trustee shall not be charged with knowledge of any Default or Event of Default
hereunder unless an officer of the Trustee assigned to and working in its
corporate trust office shall have actual knowledge thereof or unless notice
thereof shall have been given to the Trustee in accordance with Section 13.03 by
the Company or any Holder.
SECTION 7.04. Trustee, Paying Agent or Registrar May Own Debt
-----------------------------------------------
Securities. The Trustee or any paying agent or Registrar, in its individual or
-----------
any other capacity, may become the owner or pledgee of Debt Securities and
subject to the provisions of the Trust Indenture Act relating to conflicts of
interest and preferential claims may otherwise
60
deal with the Company with the same rights it would have if it were not Trustee,
paying agent or Registrar.
SECTION 7.05. Moneys Received by Trustee to Be Held in Trust.
-----------------------------------------------
Subject to the provisions of Section 11.05, all moneys received by the Trustee
shall, until used or applied as herein provided, be held in trust for the
purposes for which they were received, but need not be segregated from other
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any moneys received by it hereunder. So long as no
Event of Default shall have occurred and be continuing, all interest allowed on
any such moneys shall be paid from time to time to the Company upon a Company
Order.
SECTION 7.06. Compensation and Reimbursement. The Company covenants
-------------------------------
and agrees to pay in Dollars to the Trustee from time to time, and the Trustee
shall be entitled to, reasonable compensation for all services rendered by it
hereunder (which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust), and, except as otherwise
expressly provided herein, the Company will pay or reimburse in Dollars the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its agents, attorneys and counsel and of all Persons not
regularly in its employ) except any such expense, disbursement or advances as
may arise from its negligence or bad faith. The Company also covenants to
indemnify in Dollars the Trustee for, and to hold it harmless against, any loss,
liability or expense Incurred without negligence, wilful misconduct or bad faith
on the part of the Trustee, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the reasonable
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. The obligations of the Company under this Section 7.06 to compensate
and indemnify the Trustee and to pay or reimburse the Trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture. The Company
and the Holders agree that such additional indebtedness shall be secured by a
Lien prior to that of the Debt Securities upon all property and funds held or
collected by the Trustee, as such, except funds held in trust for the payment of
principal of, and premium, if any, or interest on, particular Debt Securities.
61
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(g) or (h) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency, reorganization or other similar
law.
SECTION 7.07. Right of Trustee to Rely on an Officers' Certificate
----------------------------------------------------
Where No Other Evidence Specifically Prescribed. Except as otherwise provided
------------------------------------------------
in Section 7.01, whenever in the administration of the provisions of this
Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 7.08. Separate Trustee; Replacement of Trustee. The Company
-----------------------------------------
may, but need not, appoint a separate Trustee for any one or more series of Debt
Securities. The Trustee may resign with respect to one or more or all series of
Debt Securities at any time by giving notice to the Company. The Holders of a
majority in principal amount of the Debt Securities of a particular series may
remove the Trustee for such series and only such series by so notifying the
Trustee and may appoint a successor Trustee. The Company shall remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns, is removed by the Company or by the Holders of
a majority in principal amount of the Debt Securities of a particular series and
(where so removed by such Holders) such Holders do not reasonably promptly
appoint a successor Trustee, or if a vacancy exists in the
62
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee. No resignation or removal of the Trustee and no appointment of a
successor Trustee shall become effective until the acceptance of appointment by
the successor Trustee in accordance with the applicable requirements of this
Section 7.08.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Holders of Debt Securities of each applicable series. The
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, subject to the Lien provided for in Section 7.06.
If a successor Trustee does not take office within 60 days after the
retiring Trustee gives notice of resignation or is removed, the retiring Trustee
or the Holders of 25% in principal amount of the Debt Securities of any
applicable series may petition any court of competent jurisdiction for the
appointment of a successor Trustee for the Debt Securities of such series.
If the Trustee fails to comply with Section 7.10, any Holder of Debt
Securities of any applicable series who has been a bona fide Holder of such Debt
Securities for at least six months may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee for the Debt Securities of such series.
Notwithstanding the replacement of the Trustee pursuant to this
Section 7.08, the Company's obligations under Section 7.06 shall continue for
the benefit of the retiring Trustee.
In the case of the appointment hereunder of a separate or successor
trustee with respect to the Debt Securities of one or more but not all series,
the Company, any retiring Trustee and each successor or separate Trustee with
respect to the Debt Securities of any applicable series shall execute and
deliver an Indenture supplemental hereto (1) which shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of any retiring Trustee with
63
respect to the Debt Securities of any series as to which any such retiring
Trustee is not retiring shall continue to be vested in such retiring Trustee and
(2) that shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, it being understood that nothing herein or
in such supplemental Indenture shall constitute such Trustees co-trustees of the
same trust and that each such separate, retiring or successor Trustee shall be
Trustee of a trust or trusts hereunder separate and apart from any trust or
trusts hereunder administered by any other such Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
----------------------------
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation or banking
association without any further act shall be the successor Trustee; provided,
--------
that it is qualified and eligible hereunder.
In case at the time such successor or successors by merger, conversion
or consolidation to the Trustee shall succeed to the trusts created by this
Indenture any of the Debt Securities shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Debt Securities so
authenticated; and in case at that time any of the Debt Securities shall not
have been authenticated, any successor to the Trustee may authenticate such Debt
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Debt Securities or in this Indenture
provided that the certificate of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
------------------------------
all times satisfy the requirements of Section 310(a) of the Trust Indenture Act.
The Trustee shall have a combined capital and surplus of at least $50,000,000,
as set forth in its most recent published annual report of condition. No
obligor upon the Debt Securities of a particular series or Person directly or
indirectly controlling, controlled by or under common control with such obligor
shall serve as Trustee upon the Debt Securities of such series. The Trustee
shall comply with Section 310(b) of the Trust Indenture Act, subject to the
penultimate paragraph thereof; provided, however, that there shall be excluded
-------- -------
from the operation of Section
64
310(b)(1) of the Trust Indenture Act this Indenture or any indenture or
indentures under which other securities or certificates of interest or
participation in other securities of the Company are outstanding (including the
Indenture dated as of December 20, 1995, between the Company and The Chase
Manhattan Bank (formerly known as Chemical Bank), under which the Company's 9%
Senior Subordinated Notes Due 2005 were issued and are outstanding, the
Indenture dated as of February 5, 1997, between the Company and The Chase
Manhattan Bank, under which the Company's 8-5/8% Senior Subordinated Notes Due
2009 were issued and are outstanding, and the Indenture dated as of January 26,
1999, between the Company and The Chase Manhattan Bank, under which the
Company's 9-3/4% Senior Subordinated Notes due 2009 were issued and are
outstanding) if the requirements for such exclusion set forth in Section
310(b)(1) of the Trust Indenture Act are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
--------------------------------------------------
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship listed in Section 311(b) of the Trust Indenture Act.
A Trustee who had resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated therein.
SECTION 7.12. Compliance with Tax Laws. The Trustee hereby agrees to
-------------------------
comply with all U.S. Federal income tax information reporting and withholding
requirements applicable to it with respect to payments of premium (if any) and
interest on the Debt Securities, whether acting as Trustee, Security Registrar,
paying agent or otherwise with respect to the Debt Securities.
ARTICLE VIII
Concerning the Holders
----------------------
SECTION 8.01. Evidence of Action by Holders. Whenever in this
------------------------------
Indenture it is provided that the Holders of a specified percentage in aggregate
principal amount of the Debt Securities of any or all series may take action
(including the making of any demand or request, the giving of any direction,
notice, consent or waiver or the taking of any other action) the fact that at
the time of taking any such action the Holders of such specified percentage have
joined therein may be evidenced (a) by any instrument or any number of
instruments of similar tenor executed by Holders in person or by agent or proxy
appointed in writing, (b) by the record of the Holders voting in favor thereof
at any
65
meeting of Holders duly called and held in accordance with the provisions of
Section 13.09 or (c) by a combination of such instrument or instruments and any
such record of such a meeting of Holders.
SECTION 8.02. Proof of Execution of Instruments and of Holding of
---------------------------------------------------
Debt Securities. Subject to the provisions of Sections 7.01, 7.02 and 13.09,
----------------
proof of the execution of any instrument by a Holder or his agent or proxy shall
be sufficient if made in accordance with such reasonable rules and regulations
as may be prescribed by the Trustee or in such manner as shall be satisfactory
to the Trustee.
The ownership of Registered Securities of any series shall be proved
by the Debt Security Register or by a certificate of the Registrar for such
series.
The Trustee may require such additional proof of any matter referred
to in this Section 8.02 as it shall deem necessary.
SECTION 8.03. Who May Be Deemed Owner of Debt Securities. Prior to
-------------------------------------------
due presentment for registration of transfer of any Registered Security, the
Company, the Trustee, any paying agent and any Registrar may deem and treat the
Person in whose name any Registered Security shall be registered upon the books
of the Company as the absolute owner of such Registered Security (whether or not
such Registered Security shall be overdue and notwithstanding any notation of
ownership or other writing thereon) for the purpose of receiving payment of or
on account of the principal of and premium, if any, and (subject to Sections
2.12 and 2.17) interest on such Registered Security and for all other purposes,
and neither the Company nor the Trustee nor any paying agent nor any Registrar
shall be affected by any notice to the contrary; and all such payments so made
to any such Holder for the time being, or upon his order, shall be valid and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Registered Security.
None of the Company, the Trustee, any paying agent or the Registrar
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
66
SECTION 8.04. Instruments Executed by Holders Bind Future Holders.
----------------------------------------------------
At any time prior to (but not after) the evidencing to the Trustee, as provided
in Section 8.01, of the taking of any action by the Holders of the percentage in
aggregate principal amount of the Debt Securities of any series specified in
this Indenture in connection with such action and subject to the following
paragraph, any Holder of a Debt Security which is shown by the evidence to be
included in the Debt Securities the Holders of which have consented to such
action may, by filing written notice with the Trustee at its corporate trust
office and upon proof of holding as provided in Section 8.02, revoke such action
so far as concerns such Debt Security. Except as aforesaid any such action
taken by the Holder of any Debt Security shall be conclusive and binding upon
such Holder and upon all future Holders and owners of such Debt Security and of
any Debt Security issued upon registration of transfer thereof or in exchange or
substitution therefor, irrespective of whether or not any notation in regard
thereto is made upon such Debt Security or such other Debt Securities. Any
action taken by the Holders of the percentage in aggregate principal amount of
the Debt Securities of any series specified in this Indenture in connection with
such action shall be conclusively binding upon the Company, the Trustee and the
Holders of all the Debt Securities of such series.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders of Registered Securities entitled to give
their consent or take any other action required or permitted to be taken
pursuant to this Indenture. If a record date is fixed, then notwithstanding the
immediately preceding paragraph, those Persons who were Holders of Registered
Securities at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to give such consent or to revoke any consent
previously given or to take any such action, whether or not such Persons
continue to be Holders of Registered Securities after such record date. No such
consent shall be valid or effective for more than 120 days after such record
date unless the consent of the Holders of the percentage in aggregate principal
amount of the Debt Securities of such series specified in this Indenture shall
have been received within such 120-day period.
67
ARTICLE IX
Supplemental Indentures
-----------------------
SECTION 9.01. Purposes for Which Supplemental Indenture May Be
------------------------------------------------
Entered into Without Consent of Holders. The Company, when authorized by a
----------------------------------------
resolution of the Board of Directors, and the Trustee may from time to time and
at any time, without the consent of Holders, enter into an Indenture or
Indentures supplemental hereto (which shall conform to the provisions of the
Trust Indenture Act as in force at the date of the execution thereof) for one or
more of the following purposes:
(a) to evidence the succession pursuant to Article X of another Person
to the Company, or successive successions, and the assumption by the
Successor Company (as defined in Section 10.01) of the covenants,
agreements and obligations of the Company in this Indenture and in the Debt
Securities;
(b) to surrender any right or power herein conferred upon the Company,
to add to the covenants of the Company such further covenants,
restrictions, conditions or provisions for the protection of the Holders of
all or any series of Debt Securities (and if such covenants are to be for
the benefit of less than all series of Debt Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) as the Board of Directors shall consider to be for the protection
of the Holders of such Debt Securities, and to make the occurrence, or the
occurrence and continuance, of a default in any of such additional
covenants, restrictions, conditions or provisions a Default or an Event of
Default permitting the enforcement of all or any of the several remedies
provided in this Indenture; provided, that in respect of any such
--------
additional covenant, restriction, condition or provision such supplemental
Indenture may provide for a particular period of grace after Default (which
period may be shorter or longer than that allowed in the case of other
Defaults) or may provide for an immediate enforcement upon such Default or
may limit the remedies available to the Trustee upon such Default or may
limit the right of the Holders of a majority in aggregate principal amount
of any or all series of Debt Securities to waive such default;
(c) to cure any ambiguity or to correct or supplement any provision
contained herein, in any supplemental Indenture or in any Debt Securities
of any
68
series that may be defective or inconsistent with any other provision
contained herein, in any supplemental Indenture or in the Debt Securities
of such series; to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee, or to make such other provisions in regard
to matters or questions arising under this Indenture as shall not adversely
affect the interests of any Holders of Debt Securities of any series;
(d) to modify or amend this Indenture in such a manner as to permit
the qualification of this Indenture or any Indenture supplemental hereto
under the Trust Indenture Act as then in effect, except that nothing herein
contained shall permit or authorize the inclusion in any Indenture
supplemental hereto of the provisions referred to in Section 316(a)(2) of
the Trust Indenture Act;
(e) to add to or change any of the provisions of this Indenture to
change or eliminate any restrictions on the payment of principal of, or
premium, if any, or interest on, Registered Securities; provided, that any
--------
such action shall not adversely affect the interests of the Holders of Debt
Securities of any series in any material respect; or permit or facilitate
the issuance of Debt Securities of any series in uncertificated form;
(f) in the case of any Debt Securities, if any, subordinated pursuant
to Article XII, to make any change in Article XII that would limit or
terminate the benefits applicable to any holder of Senior Indebtedness (or
Representatives therefor) under Article XII;
(g) to add Guarantees with respect to the Debt Securities or to secure
the Debt Securities;
(h) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Debt Securities; provided,
--------
however, that any such addition, change or elimination not otherwise
-------
permitted under this Section 9.01 shall (i) neither (A) apply to any Debt
Security of any series created prior to the execution of such supplemental
Indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Debt Security with respect to such
provision or (ii) shall become effective only when there is no such Debt
Security outstanding;
69
(i) to evidence and provide for the acceptance of appointment
hereunder by a successor or separate Trustee with respect to the Debt
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee; and
(j) to establish the form or terms of Debt Securities of any series as
permitted by Sections 2.01 and 2.03.
The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental Indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental
Indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Any supplemental Indenture authorized by the provisions of this
Section 9.01 may be executed by the Company and the Trustee without the consent
of the Holders of any of the Debt Securities at the time outstanding,
notwithstanding any of the provisions of Section 9.02.
In the case of any Debt Securities subordinated pursuant to Article
XII, an amendment under this Section 9.01 may not make any change that adversely
affects the rights under Article XII of any holder of Senior Indebtedness then
outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent to such change.
After an amendment under this Section 9.01 becomes effective, the
Company shall mail to Holders of Debt Securities of each series affected thereby
a notice briefly describing such amendment. The failure to give such notice to
all such Holders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section 9.01.
SECTION 9.02. Modification of Indenture with Consent of Holders of
----------------------------------------------------
Debt Securities. Without notice to any Holder but with the consent (evidenced
----------------
as provided in Section 8.01) of the Holders of not less than a majority in
aggregate principal amount of the outstanding Debt Securities of each series
affected by such supplemental Indenture, the Company, when authorized by a
resolution of
70
the Board of Directors, and the Trustee may from time to time and at any time
enter into an Indenture or Indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as in force at the date of
execution thereof) for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of any
supplemental Indenture or of modifying in any manner the rights of the Holders
of the Debt Securities of such series; provided, that no such supplemental
--------
Indenture, without the consent of the Holders of each Debt Security so affected,
shall (i) reduce the percentage in principal amount of Debt Securities of any
series whose Holders must consent to an amendment; (ii) reduce the rate of or
extend the time for payment of interest on any Debt Security; (iii) reduce the
principal of or extend the Stated Maturity of any Debt Security; (iv) reduce the
premium payable upon the redemption of any Debt Security or change the time at
which any Debt Security may or shall be redeemed in accordance with Article III;
(v) make any Debt Security payable in Currency other than that stated in the
Debt Security; (vi) in the case of any Debt Security subordinated pursuant to
Article XII, make any change in Article XII that adversely affects the rights of
any Holder under Article XII; (vii) release any security that may have been
granted in respect of the Debt Securities; or (viii) make any change in Section
6.06 or this Section 9.02.
A supplemental Indenture which changes or eliminates any covenant or
other provision of this Indenture which has been expressly included solely for
the benefit of one or more particular series of Debt Securities or which
modifies the rights of the Holders of Debt Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the
rights under this Indenture of the Holders of Debt Securities of any other
series.
Upon the request of the Company, accompanied by a copy of a resolution
of the Board of Directors authorizing the execution of any such supplemental
Indenture, and upon the filing with the Trustee of evidence of the consent of
Holders as aforesaid, the Trustee shall join with the Company in the execution
of such supplemental Indenture unless such supplemental Indenture affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise, in
which case the Trustee may in its discretion but shall not be obligated to enter
into such supplemental Indenture.
71
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed supplemental
Indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
In the case of any Debt Securities subordinated pursuant to Article
XII, an amendment under this Section 9.02 may not make any change that adversely
affects the rights under Article XII of any holder of Senior Indebtedness then
outstanding unless the holders of such Senior Indebtedness (or any group or
Representative thereof authorized to give a consent) consent to such change.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to Holders of Debt Securities of each series affected thereby
a notice briefly describing such amendment. The failure to give such notice to
all such Holders, or any defect therein, shall not impair or affect the validity
of an amendment under this Section 9.02.
SECTION 9.03. Effect of Supplemental Indentures. Upon the execution
----------------------------------
of any supplemental Indenture pursuant to the provisions of this Article IX,
this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental Indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
The Trustee, subject to the provisions of Sections 7.01 and 7.02, may
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such supplemental Indenture complies with the provisions of
this Article IX.
SECTION 9.04. Debt Securities May Bear Notation of Changes by
-----------------------------------------------
Supplemental Indentures. Debt Securities of any series authenticated and
------------------------
delivered after the execution of any supplemental Indenture pursuant to the
provisions of this Article IX may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental Indenture. New Debt Securities of any series so modified as to
conform, in the opinion of the Trustee and the Board of Directors, to any
modification of this Indenture contained in any such
72
supplemental Indenture may be prepared and executed by the Company,
authenticated by the Trustee and delivered in exchange for the Debt Securities
of such series then outstanding. Failure to make the appropriate notation or to
issue a new Debt Security of such series shall not affect the validity of such
amendment.
SECTION 9.05. Payment for Consent. Neither the Company nor any
--------------------
Affiliate of the Company shall, directly or indirectly, pay or cause to be paid
any consideration, whether by way of interest fee or otherwise, to any Holder
for or as an inducement to any consent, waiver or amendment of any of the terms
or provisions of this Indenture or the Debt Securities unless such consideration
is offered to be paid to all Holders that so consent, waive or agree to amend in
the time frame set forth in solicitation documents relating to such consent,
waiver or agreement.
ARTICLE X
Consolidation, Merger, Sale or Conveyance
-----------------------------------------
SECTION 10.01. Consolidations and Mergers of the Company. The
------------------------------------------
Company shall not consolidate with or merge with or into any Person, or convey,
transfer or lease all or substantially all its assets to any Person, unless: (i)
either (a) the Company shall be the continuing Person in the case of a merger or
(b) the resulting, surviving or transferee Person if other than the Company (the
"Successor Company") shall be a corporation organized and existing under the
laws of the United States, any State thereof or the District of Columbia and the
Successor Company shall expressly assume, by an Indenture supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, all
the obligations of the Company under the Debt Securities according to their
tenor, and this Indenture; (ii) immediately after giving effect to such
transaction (and treating any Indebtedness which becomes an obligation of the
Successor Company or any Subsidiary of the Company as a result of such
transaction as having been Incurred by the Successor Company or such Subsidiary
at the time of such transaction), no Default or Event of Default would occur or
be continuing; and (iii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and such supplemental
Indenture (if any) comply with this Indenture.
SECTION 10.02. Rights and Duties of Successor Corporation. In case
-------------------------------------------
of any consolidation, merger,
73
conveyance, transfer or lease of the assets of the Company in accordance with
Section 10.01, the Successor Company shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party of the
first part, and the predecessor corporation (except in the case of a lease)
shall be relieved of any further obligation under the Indenture and the Debt
Securities. The Successor Company thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all the Debt
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of the Successor
Company, instead of the Company, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Debt Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Debt Securities which the Successor Company thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All the Debt Securities so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Debt Securities theretofore or thereafter issued in accordance
with the terms of this Indenture as though all such Debt Securities had been
issued at the date of the execution hereof.
In case of any such consolidation, merger, conveyance, transfer or
lease, such changes in phraseology and form (but not in substance) may be made
in the Debt Securities appertaining thereto thereafter to be issued as may be
appropriate.
ARTICLE XI
Satisfaction and Discharge of Indenture;
----------------------------------------
Defeasance; Unclaimed Moneys
----------------------------
SECTION 11.01. Applicability of Article. The provisions of this
-------------------------
Article XI relating to defeasance of Debt Securities shall be applicable to the
Debt Securities of a series except as otherwise specified pursuant to Section
2.03 for the Debt Securities of such series.
SECTION 11.02. Satisfaction and Discharge of Indenture: Defeasance.
----------------------------------------------------
(a) If at any time (i) the Company shall have delivered to the Trustee for
cancelation all Debt Securities of any series theretofore authenticated and
delivered (other than (1) any Debt Securities of such series which shall have
been destroyed, lost or stolen and which
74
shall have been replaced or paid as provided in Section 2.09 and (2) Debt
Securities for whose payment money has theretofore been deposited in trust and
thereafter repaid to the Company as provided in Section 11.05) or (ii) all Debt
Securities of such series not theretofore delivered to the Trustee for
cancelation shall have become due and payable, or are by their terms to become
due and payable within one year or are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit with the Trustee as trust funds the
entire amount in the Currency in which such Debt Securities are denominated
(except as otherwise provided pursuant to Section 2.03) sufficient to pay at
maturity or upon redemption all Debt Securities of such series not theretofore
delivered to the Trustee for cancelation, including principal and premium, if
any, and interest due or to become due on such date of maturity or redemption
date, as the case may be, and if in either case the Company shall also pay or
cause to be paid all other sums payable hereunder by the Company, then this
Indenture shall cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of such Debt Securities herein expressly
provided for and rights to receive payments of principal of, and premium, if
any, and interest on, such Debt Securities) with respect to the Debt Securities
of such series, and the Trustee, on demand of the Company accompanied by an
Officers' Certificate and an Opinion of Counsel complying with Section 13.05 and
at the cost and expense of the Company, shall execute proper instruments
acknowledging satisfaction of and discharging this Indenture.
(b) Subject to Sections 11.02(c), 11.03 and 11.07, the Company at any
time may terminate, with respect to Debt Securities of a particular series, (i)
all its obligations under the Debt Securities of such series and this Indenture
with respect to the Debt Securities of such series ("legal defeasance option")
or (ii) its obligations with respect to the Debt Securities of such series under
clause (ii) of Section 10.01 and the related operation of Section 6.01(d), any
obligations with respect to the Debt Securities of such series which, in
accordance with Section 2.03(12), are subject to the covenant defeasance option,
and the related operation of Section 6.01(e), and the operation of Sections 6.01
(f) and (i) ("covenant defeasance option"). The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance
option.
If the Company exercises its legal defeasance option, payment of the
Debt Securities of the defeased series may not be accelerated because of an
Event of
75
Default. If the Company exercises its covenant defeasance option, payment of the
Debt Securities of the defeased series may not be accelerated because of an
Event of Default specified in Sections 6.01(d), (e), (f) and (i) (except to the
extent covenants or agreements referenced in such Sections remain applicable).
Upon satisfaction of the conditions set forth herein and upon request
of the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clauses (a) and (b)(i) above, the Company's
obligations in Sections 2.07, 2.09, 4.02, 4.03, 4.04, 5.01, 7.06, 11.06 and
11.07 shall survive until the Debt Securities of the defeased series have been
paid in full. Thereafter, the Company's obligations in Sections 7.06 and 11.06
shall survive.
SECTION 11.03. Conditions of Defeasance. The Company may exercise
-------------------------
its legal defeasance option or its covenant defeasance option with respect to
Debt Securities of a particular series only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal of, and
premium, if any, and interest on, the Debt Securities of such series to
maturity or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent accountants expressing their
opinion that the payments of principal and interest when due and without
reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay the principal, premium and
interest when due on all the Debt Securities of such series to maturity or
redemption, as the case may be;
(3) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Section 6.01(g) or (h) with respect to the
Company occurs which is continuing at the end of the period;
(4) no Default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
76
(5) the deposit does not constitute a default under any other
agreement binding on the Company and, if the Debt Securities of such series
are subordinated pursuant to Article XII, is not prohibited by Article XII;
(6) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940;
(7) in the event of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from the Internal Revenue Service a ruling, or (ii)
since the date of this Indenture there has been a change in the applicable
Federal income tax law, in either case of the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of Debt
Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred;
(8) in the event of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of Debt Securities of such series will not recognize income, gain
or loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred; and
(9) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Debt Securities of such series as
contemplated by this Article XI have been complied with.
Before or after a deposit, the Company may make arrangements
satisfactory to the Trustee for the redemption of Debt Securities of such series
at a future date in accordance with Article III.
77
SECTION 11.04. Application of Trust Money. The Trustee shall hold in
---------------------------
trust money or U.S. Government Obligations deposited with it pursuant to this
Article XI. It shall apply the deposited money and the money from U.S.
Government Obligations through any paying agent and in accordance with this
Indenture to the payment of principal of, and premium, if any, and interest on,
the Debt Securities of the defeased series. In the event the Debt Securities of
the defeased series or the Debt Securities of a series with respect to which the
Indenture has been discharged are subordinated pursuant to Article XII, money
and securities so held in trust are not subject to Article XII.
SECTION 11.05. Repayment to Company. The Trustee and any paying
---------------------
agent shall promptly turn over to the Company upon request any excess money or
securities held by them at any time; provided, that, if such excess money or
--------
securities are held by the Trustee in connection with the exercise by the
Company of the legal defeasance option or the covenant defeasance option, the
Trustee shall not turn over such excess money or securities unless it shall have
received a certificate from a nationally recognized firm of independent
accountants to the effect that such money and securities are in excess of the
amount thereof which would then be required to be deposited to effect an
equivalent defeasance in accordance with Section 11.03.
Subject to any applicable abandoned property law, the Trustee and any
paying agent shall pay to the Company upon request any money held by them for
the payment of principal, premium or interest that remains unclaimed for two
years, and, thereupon, all liability of the Trustee and any such paying agent
with respect to such money shall cease, and, thereafter, Holders entitled to
such money must look to the Company for payment as general creditors.
SECTION 11.06. Indemnity for U.S. Government Obligations. The
------------------------------------------
Company shall pay and shall indemnify the Trustee and the Holders against any
tax, fee or other charge imposed on or assessed against deposited U.S.
Government Obligations or the principal and interest received on such U.S.
Government Obligations.
SECTION 11.07. Reinstatement. If the Trustee or any paying agent is
--------------
unable to apply any money or U.S. Government Obligations in accordance with this
Article XI by reason of any legal proceeding or by reason of any order or
judgment of any court or government authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Debt
78
Securities of the defeased series shall be revived and reinstated as though no
deposit had occurred pursuant to this Article XI until such time as the Trustee
or any paying agent is permitted to apply all such money or U.S. Government
Obligations in accordance with this Article XI; provided, however, that if the
-------- -------
Company makes any payment of principal of, premium, if any, or interest on any
such Debt Security following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Debt Securities to
receive such payment from the money or U.S. Government Obligations held by the
Trustee or such paying agent.
ARTICLE XII
Subordination of Debt Securities
--------------------------------
SECTION 12.01. Applicability of Article; Agreement to Subordinate.
---------------------------------------------------
The provisions of this Article XII shall be applicable to the Debt Securities of
any series (Debt Securities of such series referred to in this Article XII as
"Subordinated Debt Securities") designated, pursuant to Section 2.03, as
subordinated to Senior Indebtedness. Each Holder by accepting a Subordinated
Debt Security agrees that the Indebtedness evidenced by such Subordinated Debt
Security is subordinated in right of payment, to the extent and in the manner
provided in this Article XII, to the prior payment of all Senior Indebtedness
and that the subordination is for the benefit of and enforceable by the holders
of Senior Indebtedness. All provisions of this Article XII shall be subject to
Section 12.12.
SECTION 12.02. Liquidation, Dissolution, Bankruptcy. Upon any
-------------------------------------
payment or distribution of the assets of the Company to creditors upon a total
or partial liquidation or a total or partial dissolution of the Company or in a
bankruptcy, reorganization, insolvency, receivership or similar proceeding
relating to the Company or its property:
(1) holders of Senior Indebtedness shall be entitled to receive
payment in full in cash of the Senior Indebtedness (including interest (if
any), accruing on or after the commencement of a proceeding in bankruptcy,
whether or not allowed as a claim against the Company in such bankruptcy
proceeding) before Holders of Subordinated Debt Securities shall be
entitled to receive any payment of principal of, or
79
premium, if any, or interest on, the Subordinated Debt Securities; and
(2) until the Senior Indebtedness is paid in full, any distribution to
which Holders of Subordinated Debt Securities would be entitled but for
this Article XII shall be made to holders of Senior Indebtedness as their
interests may appear, except that such Holders may receive shares of stock
and any debt securities that are subordinated to Senior Indebtedness to at
least the same extent as the Subordinated Debt Securities.
SECTION 12.03. Default on Senior Indebtedness. The Company may not
-------------------------------
pay the principal of, or premium, if any, or interest on, the Subordinated Debt
Securities or make any deposit pursuant to Article XI and may not repurchase,
redeem or otherwise retire (except, in the case of Subordinated Debt Securities
that provide for a mandatory sinking fund pursuant to Section 3.04, by the
delivery of Subordinated Debt Securities by the Company to the Trustee pursuant
to the first paragraph of Section 3.05) any Debt Securities (collectively, "pay
the Subordinated Debt Securities") if (i) any principal, premium or interest in
respect of Senior Indebtedness is not paid within any applicable grace period
(including at maturity) or (ii) any other default on Senior Indebtedness occurs
and the maturity of such Senior Indebtedness is accelerated in accordance with
its terms unless, in either case, (x) the default has been cured or waived and
any such acceleration has been rescinded or (y) such Senior Indebtedness has
been paid in full in cash; provided, however, that the Company may pay the
-------- -------
Subordinated Debt Securities without regard to the foregoing if the Company and
the Trustee receive written notice approving such payment from the
Representative of each issue of Designated Senior Indebtedness. During the
continuance of any default (other than a default described in clause (i) or (ii)
of the preceding sentence) with respect to any Senior Indebtedness pursuant to
which the maturity thereof may be accelerated immediately without further notice
(except such notice as may be required to effect such acceleration) or the
expiration of any applicable grace periods, the Company may not pay the
Subordinated Debt Securities for a period (a "Payment Blockage Period")
commencing upon the receipt by the Company and the Trustee of written notice of
such default from the Representative of any Designated Senior Indebtedness
specifying an election to effect a Payment Blockage Period (a "Blockage Notice")
and ending 179 days thereafter (or earlier if such Payment Blockage Period is
terminated (i) by written notice to the Trustee and the Company from the
80
Person or Persons who gave such Blockage Notice, (ii) by repayment in full in
cash of such Designated Senior Indebtedness or (iii) because the default giving
rise to such Blockage Notice is no longer continuing). Notwithstanding the
provisions described in the immediately preceding sentence (but subject to the
provisions contained in the first sentence of this Section 12.03), unless the
holders of such Designated Senior Indebtedness or the Representative of such
holders shall have accelerated the maturity of such Designated Senior
Indebtedness, the Company may resume payments on the Subordinated Debt
Securities after such Payment Blockage Period. Not more than one Blockage Notice
may be given in any consecutive 360-day period, irrespective of the number of
defaults with respect to any number of issues of Senior Indebtedness during such
period; provided, however, that if any Blockage Notice within such 360-day
-------- -------
period is given by or on behalf of any holders of Designated Senior Indebtedness
(other than the Bank Indebtedness), the Representative of the Bank Indebtedness
may give another Blockage Notice within such period; provided further, however,
---------------- -------
that in no event may the total number of days during which any Payment Blockage
Period or Periods is in effect exceed 179 days in the aggregate during any 360
consecutive day period. For purposes of this Section 12.03, no default or event
of default which existed or was continuing on the date of the commencement of
any Payment Blockage Period with respect to the Senior Indebtedness initiating
such Payment Blockage Period shall be, or be made, the basis of the commencement
of a subsequent Payment Blockage Period by the Representative of such Senior
Indebtedness, whether or not within a period of 360 consecutive days, unless
such default or event of default shall have been cured or waived for a period of
not less than 90 consecutive days.
SECTION 12.04. Acceleration of Payment of Debt Securities. If
-------------------------------------------
payment of the Subordinated Debt Securities is accelerated because of an Event
of Default, the Company or the Trustee shall promptly notify the holders of the
Designated Senior Indebtedness (or their Representatives) of the acceleration.
SECTION 12.05. When Distribution Must Be Paid Over. If a
------------------------------------
distribution is made to Holders of Subordinated Debt Securities that because of
this Article XII should not have been made to them, the Holders who receive such
distribution shall hold it in trust for holders of Senior Indebtedness and pay
it over to them as their interests may appear.
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SECTION 12.06. Subrogation. After all Senior Indebtedness is paid in
------------
full and until the Subordinated Debt Securities are paid in full, Holders
thereof shall be subrogated to the rights of holders of Senior Indebtedness to
receive distributions applicable to Senior Indebtedness. A distribution made
under this Article XII to holders of Senior Indebtedness which otherwise would
have been made to Holders of Subordinated Debt Securities is not, as between the
Company and such Holders, a payment by the Company on Senior Indebtedness.
SECTION 12.07. Relative Rights. This Article XII defines the
----------------
relative rights of Holders of Subordinated Debt Securities and holders of Senior
Indebtedness. Nothing in this Indenture shall:
(1) impair, as between the Company, its creditors (other than the
holders of Senior Indebtedness), and Holders of either Subordinated Debt
Securities or Debt Securities, the obligation of the Company, which is
absolute and unconditional, to pay principal of, and premium, if any, and
interest on, the Subordinated Debt Securities and the Debt Securities in
accordance with their terms; or
(2) prevent the Trustee or any Holder of either Subordinated Debt
Securities or Debt Securities from exercising its available remedies upon a
Default, subject to the rights of holders of Senior Indebtedness to receive
distributions otherwise payable to Holders of Subordinated Debt Securities.
SECTION 12.08. Subordination May Not Be Impaired by Company. No
---------------------------------------------
right of any holder of Senior Indebtedness to enforce the subordination of the
Indebtedness evidenced by the Subordinated Debt Securities shall be impaired by
any act or failure to act by the Company or by its failure to comply with this
Indenture.
SECTION 12.09. Rights of Trustee and Paying Agent. Notwithstanding
-----------------------------------
Section 12.03, the Trustee or any paying agent may continue to make payments on
Subordinated Debt Securities and shall not be charged with knowledge of the
existence of facts that would prohibit the making of any such payments unless,
not less than two business days prior to the date of such payment, a responsible
officer of the Trustee receives notice satisfactory to it that payments may not
be made under this Article XII. The Company, the Registrar, any paying agent, a
Representative or a holder of Senior Indebtedness may give the notice; provided,
--------
however,
-------
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that, if an issue of Senior Indebtedness has a Representative, only the
Representative may give the notice.
The Trustee in its individual or any other capacity may hold Senior
Indebtedness with the same rights it would have if it were not Trustee. The
Registrar and any paying agent may do the same with like rights. The Trustee
shall be entitled to all the rights set forth in this Article XII with respect
to any Senior Indebtedness which may at any time be held by it, to the same
extent as any other holder of Senior Indebtedness; and nothing in Article VII
shall deprive the Trustee of any of its rights as such holder. Nothing in this
Article XII shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.06.
SECTION 12.10. Distribution or Notice to Representative. Whenever a
-----------------------------------------
distribution is to be made or a notice given to holders of Senior Indebtedness,
the distribution may be made and the notice given to their Representative (if
any).
SECTION 12.11. Article XII Not to Prevent Defaults or Limit Right to
-----------------------------------------------------
Accelerate. The failure to make a payment pursuant to the Debt Securities by
-----------
reason of any provision in this Article XII shall not be construed as preventing
the occurrence of a Default. Nothing in this Article XII shall have any effect
on the right of the Holders or the Trustee to accelerate the maturity of either
the Subordinated Debt Securities or the Debt Securities, as the case may be.
SECTION 12.12. Trust Moneys Not Subordinated. Notwithstanding
------------------------------
anything contained herein to the contrary, payments from money or the proceeds
of U.S. Government Obligations held in trust under Article XI by the Trustee for
the payment of principal of, and premium, if any, and interest on, the
Subordinated Debt Securities or the Debt Securities shall not be subordinated to
the prior payment of any Senior Indebtedness or subject to the restrictions set
forth in this Article XII, and none of the Holders thereof shall be obligated to
pay over any such amount to the Company or any holder of Senior Indebtedness of
the Company or any other creditor of the Company.
SECTION 12.13. Trustee Entitled to Rely. Upon any payment or
-------------------------
distribution pursuant to this Article XII, the Trustee and the Holders shall be
entitled to rely (i) upon any order or decree of a court of competent
jurisdiction in which any proceedings of the nature referred to in Section 12.02
are pending, (ii) upon a certificate of
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the liquidating trustee or agent or other Person making such payment or
distribution to the Trustee or to such Holders or (iii) upon the Representatives
for the holders of Senior Indebtedness for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness and other Indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article XII. The Trustee shall
be entitled to conclusively rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Indebtedness (or a
Representative on behalf of such holder), to establish that such notice has been
given by a holder of such Senior Indebtedness or Representative on behalf of any
such holder or holders. In the event that the Trustee determines, in good faith,
that evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article XII, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and other facts pertinent to the rights of such
Person under this Article XII, and, if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment. The provisions of Sections
7.01 and 7.02 shall be applicable to all actions or omissions of actions by the
Trustee pursuant to this Article XII.
SECTION 12.14. Trustee to Effectuate Subordination. Each Holder by
------------------------------------
accepting a Subordinated Debt Security authorizes and directs the Trustee on his
behalf to take such action as may be necessary or appropriate to acknowledge or
effectuate the subordination between the Holders of Subordinated Debt Securities
and the holders of Senior Indebtedness as provided in this Article XII and
appoints the Trustee as attorney-in-fact for any and all such purposes.
SECTION 12.15. Trustee Not Fiduciary for Holders of Senior
-------------------------------------------
Indebtedness. With respect to the holders of Senior Indebtedness, the Trustee
-------------
undertakes to perform or observe only such of its covenants and obligations as
are specifically set forth in this Article XII, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and
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shall not be liable to any such holders if it shall mistakenly pay over or
distribute to Holders of Subordinated Debt Securities or the Company or any
other Person, money or assets to which any holders of Senior Indebtedness shall
be entitled by virtue of this Article XII or otherwise.
SECTION 12.16. Reliance by Holders of Senior Indebtedness on
---------------------------------------------
Subordination Provisions. Each Holder by accepting a Subordinated Debt Security
-------------------------
acknowledges and agrees that the foregoing subordination provisions are, and are
intended to be, an inducement and a consideration to each holder of any Senior
Indebtedness, whether such Senior Indebtedness was created or acquired before or
after the issuance of the Subordinated Debt Securities, to acquire and continue
to hold, or to continue to hold, such Senior Indebtedness and such holder of
Senior Indebtedness shall be deemed conclusively to have relied on such
subordination provisions in acquiring and continuing to hold, or in continuing
to hold, such Senior Indebtedness.
ARTICLE XIII
Miscellaneous Provisions
------------------------
SECTION 13.01. Successors and Assigns of Company Bound by Indenture.
-----------------------------------------------------
All the covenant's stipulations, promises and agreements in this Indenture
contained by or in behalf of the Company or the Trustee shall bind its
successors and assigns, whether so expressed or not.
SECTION 13.02. Acts of Board, Committee or Officer of Successor
------------------------------------------------
Company Valid. Any act or proceeding by any provision of this Indenture
--------------
authorized or required to be done or performed by any board, committee or
officer of the Company shall and may be done and performed with like force and
effect by the like board, committee or officer of any Successor Company.
SECTION 13.03. Required Notices or Demands. Except as otherwise
----------------------------
expressly provided in this Indenture, any notice or demand which by any
provision of this Indenture is required or permitted to be given or served by
the Trustee or by the Holders to or on the Company may be given or served by
being deposited first class mail, postage prepaid, in a post office letter box
in the United States addressed (until another address is filed by the Company
with the Trustee) as follows: Vintage Petroleum, Inc., 0000 Xxx Xxxxxxxx
Xxxxxx, Xxxxx, XX 00000, Attention: Chief Financial Officer.
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Except as otherwise expressly provided in this Indenture, any notice,
direction, request or demand by the Company or by any Holder to or upon the
Trustee may be given or made, for all purposes, by being deposited first class
mail, postage prepaid, in a post office letter box in the United States
addressed to the corporate trust office of the Trustee initially at The Chase
Manhattan Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX 00000.
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice required or permitted to a Registered Holder by the Company
or the Trustee pursuant to the provisions of this Indenture shall be deemed to
be properly mailed by being deposited first class mail, postage prepaid, in a
post office letter box in the United States addressed to such Holder at the
address of such Holder as shown on the Debt Security Register. Any report
pursuant to Section 313 of the Trust Indenture Act shall be transmitted in
compliance with subsection (c) therein.
In the event of suspension of regular mail service or by reason of any
other cause it shall be impracticable to give notice by mail, then such
notification as shall be given with the approval of the Trustee shall constitute
sufficient notice for every purpose thereunder.
Failure to mail a notice or communication to a Holder or any defect in
it or any defect in any notice by publication as to a Holder shall not affect
the sufficiency of such notice with respect to other Holders. If a notice or
communication is mailed or published in the manner provided above, it is
conclusively presumed duly given.
SECTION 13.04. Indenture and Debt Securities to Be Construed in
------------------------------------------------
Accordance with the Laws of the State of New York. This Indenture and each Debt
--------------------------------------------------
Security shall be deemed to be New York contracts, and for all purposes shall be
construed in accordance with the laws of said State (without reference to
principles of conflicts of law).
SECTION 13.05. Officers' Certificate and Opinion of Counsel to Be
--------------------------------------------------
Furnished upon Application or Demand by the Company. Upon any application or
----------------------------------------------------
demand by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of
86
Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such document is
specifically required by any provision of this Indenture relating to such
particular application or demand, no additional certificate or opinion need be
furnished.
Each certificate (other than an Officers' Certificate provided
pursuant to Section 4.05) or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (1) a statement that the Person
making such certificate or opinion has read such covenant or condition, (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based, (3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with and (4) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
SECTION 13.06. Payments Due on Legal Holidays. In any case where the
-------------------------------
date of maturity of interest on or principal of and premium, if any, on the Debt
Securities of a series or the date fixed for redemption or repayment of any Debt
Security or the making of any sinking fund payment shall not be a business day
at any Place of Payment for the Debt Securities of such series, then payment of
interest or principal and premium, if any, or the making of such sinking fund
payment need not be made on such date at such Place of Payment, but may be made
on the next succeeding business day at such Place of Payment with the same force
and effect as if made on the date of maturity or the date fixed for redemption,
and no interest shall accrue for the period after such date. If a record date
is not a business day, the record date shall not be affected.
SECTION 13.07. Provisions Required by Trust Indenture Act to Control.
-----------------------------------------------------
If and to the extent that any provision of this Indenture limits, qualifies or
conflicts with another provision included in this Indenture which is required or
deemed to be included herein by operation of the Trust Indenture Act, such
required or deemed provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act which may be so
modified or excluded, the latter provision shall be
87
deemed to apply to this Indenture as so modified or excluded, as the case may
be.
SECTION 13.08. Computation of Interest on Debt Securities. Interest,
-------------------------------------------
if any, on the Debt Securities shall be computed on the basis of a 360-day year
of twelve 30-day months, except as may otherwise be provided pursuant to Section
2.03.
SECTION 13.09. Rules by Trustee, Paying Agent and Registrar. The
---------------------------------- ----------
Trustee may make reasonable rules for action by or a meeting of Holders. The
Registrar and any paying agent may make reasonable rules for their functions.
SECTION 13.10. No Recourse Against Others. An incorporator or any
---------------------------
past, present or future director, officer, employee or stockholder, as such, of
the Company shall not have any liability for any obligations of the Company
under the Debt Securities or this Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Debt Security, each Holder shall waive and release all such liability. The
waiver and release shall be part of the consideration for the issue of the Debt
Securities.
SECTION 13.11. Severability. In case any provision in this Indenture
-------------
or the Debt Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 13.12. Effect of Headings. The article and section headings
-------------------
herein and in the Table of Contents are for convenience only and shall not
affect the construction hereof.
SECTION 13.13. Indenture May Be Executed in Counterparts. This
------------------------------------------
Indenture may be executed in any number of counterparts, each of which shall be
an original; but such counterparts shall together constitute but one and the
same instrument.
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The Trustee hereby accepts the trusts in this Indenture upon the terms
and conditions herein set forth.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly signed as of the date first written above.
VINTAGE PETROLEUM, INC.,
by
----------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
by
----------------------------
Name:
Title:
