Exhibit 4.3
MCMORAN EXPLORATION CO., Issuer
and
_______________________, Trustee
SENIOR
INDENTURE
Dated as of _____________________, 200
TABLE OF CONTENTS
Page
PARTIES 1
RECITALS 1
ARTICLE ONE - DEFINITIONS
SECTION 1.1
Certain Terms Defined 1
Authenticating Agent 1
Authorized Newspaper 2
Authorized Signatory 2
Board of Directors 2
Board Resolution 2
Business Day 2
Commission 2
Company Order 2
Corporate Trust Office 2
Coupon 2
Debt 2
Default 3
Defeasance 3
Depositary 3
Dollar 3
ECU 3
Event of Default 3
Exchange Act 3
Foreign Currency 3
Guarantee 3
Holder, Holder of Securities, Securityholder 3
Indenture 4
Insolvency Law 4
Interest 4
Interest Payment Date 4
Issuer 4
Judgment Currency 4
Officers' Certificate 4
Opinion of Counsel 4
original issue date 4
Original Issue Discount Security 4
Outstanding 4
Periodic Offering 5
Person 5
principal 5
Redemption Date 5
Redemption Price 5
Registered Global Security 5
Registered Security 6
Regular Record Date 6
Required Currency 6
Responsible Officer 6
SEC Reports 6
Securities Act 6
Security or Securities 6
Security Registrar 6
Stated Maturity 6
Trust Indenture Act of 1939 6
Trustee 6
Unregistered Security 7
U.S. Government Obligations 7
Yield to Maturity 7
ARTICLE TWO - ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.1 Forms Generally 7
SECTION 2.2 Form of Trustee's Certificate of Authentication 7
SECTION 2.3 Amount Unlimited; Issuable in Series 8
SECTION 2.4 Authentication and Delivery of Securities 11
SECTION 2.5 Execution of Securities 13
SECTION 2.6 Certificate of Authentication 14
SECTION 2.7 Denomination and Date of Securities; Payments of Interest 14
SECTION 2.8 Registration, Transfer and Exchange 15
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities 18
SECTION 2.10 Cancellation of Securities; Disposition Thereof 19
SECTION 2.11 Temporary Securities 20
ARTICLE THREE - COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest 21
SECTION 3.2 Offices for Payments, etc. 22
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee 23
SECTION 3.4 Paying Agents 23
SECTION 3.5 Written Statement to Trustee 24
SECTION 3.6 Corporate Existence 24
SECTION 3.7 Luxembourg Publications 24
ARTICLE FOUR - SECURITYHOLDERS' LISTS AND REPORTS BY THE ISSUER AND THE
TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders 24
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists 24
SECTION 4.3 Reports by the Issuer 24
SECTION 4.4 Reports by the Trustee 25
ARTICLE FIVE - REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver
of Default 25
SECTION 5.2 Collection of Debt by Trustee; Trustee May Prove Debt 28
SECTION 5.3 Application of Proceeds 30
SECTION 5.4 Suits for Enforcement 31
SECTION 5.5 Restoration of Rights on Abandonment of Proceedings 31
SECTION 5.6 Limitations on Suits by Securityholders 31
SECTION 5.7 Unconditional Right of Securityholders to Institute Certain
Suits 32
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default 32
SECTION 5.9 Control by Securityholders 32
SECTION 5.10 Waiver of Past Defaults 33
SECTION 5.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances 33
SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay
Costs 34
ARTICLE SIX - CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default 34
SECTION 6.2 Certain Rights of the Trustee 35
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof 36
SECTION 6.4 Trustee and Agents May Hold Securities or Coupons;
Collections, etc. 36
SECTION 6.5 Monies Held by Trustee 36
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim 37
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc. 37
SECTION 6.8 Persons Eligible for Appointment as Trustee 37
SECTION 6.9 Resignation and Removal; Appointment of Successor Trustee 38
SECTION 6.10 Acceptance of Appointment by Successor Trustee 39
SECTION 6.11 Merger, Conversion, Consolidation or Succession to
Business of Trustee 40
SECTION 6.12 Preferential Collection of Claims Against the Issuer 41
SECTION 6.13 Appointment of Authenticating Agent 41
ARTICLE SEVEN - CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders 42
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities 42
SECTION 7.3 Holders to be Treated as Owners 43
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding 43
SECTION 7.5 Right of Revocation of Action Taken 44
SECTION 7.6 Record Date for Consents and Waivers 44
ARTICLE EIGHT - SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders 45
SECTION 8.2 Supplemental Indentures With Consent of Securityholders 46
SECTION 8.3 Effect of Supplemental Indenture 48
SECTION 8.4 Documents to Be Given to Trustee 48
SECTION 8.5 Notation on Securities in Respect of Supplemental
Indentures 48
ARTICLE NINE - CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant of the Issuer Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions 49
SECTION 9.2 Successor Entity Substituted 49
SECTION 9.3 Opinion of Counsel to Trustee 50
ARTICLE TEN - SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONIES
SECTION 10.1 Satisfaction and Discharge of Indenture 50
SECTION 10.2 Application by Trustee of Funds Deposited for Payment
of Securities 54
SECTION 10.3 Repayment of Monies Held by Paying Agent 54
SECTION 10.4 Return of Monies Held by Trustee and Paying Agent
Unclaimed for Two Years 55
SECTION 10.5 Indemnity for U.S. Government Obligations 55
ARTICLE ELEVEN - MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability 55
SECTION 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Securityholders 56
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture 56
SECTION 11.4 Notices and Demands on Issuer, the Trustee and
Securityholders 56
SECTION 11.5 Officers' Certificates and Opinions of Counsel,
Statements to Be Contained Therein 57
SECTION 11.6 Payments Due on Saturdays, Sundays and Legal Holidays 58
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939 58
SECTION 11.8 New York Law to Govern; Separability 58
SECTION 11.9 Counterparts 58
SECTION 11.10 Effect of Headings 58
SECTION 11.11 Securities in a Foreign Currency or in ECU 58
SECTION 11.12 Judgment Currency 59
ARTICLE TWELVE - REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Application of Article 60
SECTION 12.2 Notice of Redemption 60
SECTION 12.3 Payment of Securities Called for Redemption 61
SECTION 12.4 Exclusion of Certain of Securities from Eligibility
for Selection for Redemption 62
SECTION 12.5 Mandatory and Optional Sinking Funds 62
TESTIMONIUM 65
SIGNATURES AND SEALS 65
ACKNOWLEDGMENTS 66
CROSS REFERENCE SHEET*
Between
Provisions of Trust Indenture Act of 1939, as amended, and the Indenture
to be dated as of ___________________, 2000 between McMoRan Exploration Co.
and
____________________, as Trustee:
Section of the Act Section of Indenture
310(a)(1), (2) and (5) 6.8
310(a)(3) and (4) Inapplicable
310(b) 6.9(a), (b) and (d)
310(c) Inapplicable
311(a) and (b) 6.12
311(c) Inapplicable
312(a) 4.1 and 4.2(a)
312(b) 4.2(b)
312(c) 4.2(c)
313(a) 4.4(a)
313(a)(5) 4.4(b)
313(b) 4.4(b)
313(c) 4.4(c)
313(d) 4.4(d)
314(a) 3.5 and 4.3
314(b) Inapplicable
314(c) 11.5
314(d) Inapplicable
314(e) 11.5
314(f) Inapplicable
315(a), (c) and (d) 6.1
315(b) 5.11
315(e) 5.12
316(a)(1) 5.9
316(a)(2) Not required
316(a) (last sentence) 7.4
316(b) 5.7
316(c) 7.6
317(a) 5.2
317(b) 3.4
318(a) 11.7
*This Cross Reference Sheet is not part of the Indenture
THIS INDENTURE, dated as of __________________________, 2000, by and
between McMoRan Exploration Co. (the "Issuer"), a Delaware corporation, and
____________________, a _____________________ corporation, as trustee (the
"Trustee"),
WITNESSETH:
WHEREAS, the Issuer has duly authorized the issue from time to time of its
unsecured debentures, notes or other evidences of indebtedness to be issued in
one or more series (the "Securities") up to such principal amount or amounts as
may from time to time be authorized by the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of this
Indenture to provide, among other things, for the authentication, delivery and
administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid indenture and
agreement of the Issuer according to its terms, have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by
the Holders thereof, the Issuer and the Trustee mutually covenant and agree for
the equal and proportionate benefit of the respective Holders from time to time
of the Securities and of the Coupons, if any, appertaining thereto, as
follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 Certain Terms Defined. The following terms (except as
otherwise expressly provided or unless the context otherwise clearly requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section. All other terms
used in this Indenture that are defined in the Trust Indenture Act of 1939 or
are defined in the Securities Act and referred to in the Trust Indenture Act of
1939 (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 of 1939 and in the Securities Act as in force at the date of this
Indenture. All accounting terms used herein and not expressly defined shall
have the meanings given to them in accordance with generally accepted accounting
principles, and the term "generally accepted accounting principles" shall mean
generally accepted accounting principles in the United States which are in
effect on the date or time of any determination. The words "herein", "hereof"
and "hereunder" and other words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other subdivision. The
terms defined in this Article include the plural as well as the singular.
"Authenticating Agent" shall have the meaning set forth in Section 6.13.
"Authorized Newspaper" means a newspaper (which, in the case of The
City of New York, will, if practicable, be The Wall Street Journal (Eastern
Edition), in the case of London, will, if practicable, be the Financial Times
(London Edition) and, in the case of Luxembourg, will, if practicable, be the
Luxemburger Wort) published in an official language of the country of
publication customarily published at least once a day for at least five days in
each calendar week and of general circulation in the City of New York, London or
Luxembourg as applicable. If it shall be impractical in the opinion of the
Trustee to make any publication of any notice required hereby in an Authorized
Newspaper, any publication or other notice in lieu thereof which is made or
given with the approval of the Trustee shall constitute a sufficient
publication
of such notice.
"Authorized Signatory" means any of the chairman of the Board of
Directors, the president, any vice president (whether or not designated by a
number or numbers or a word or words added before or after the title "Vice
President"), the treasurer or any assistant treasurer or the secretary or any
assistant secretary of any Person.
"Board of Directors" of any Person means the Board of Directors of
such Person, or any committee of such Board duly formed and authorized to act on
its behalf.
"Board Resolution" of any Person means a copy of one or more
resolutions, certified by the secretary or an assistant secretary of such Person
to have been duly adopted or consented to by the Board of Directors of such
Person and to be in full force and effect, and delivered to the Trustee.
"Business Day" means, with respect to a Security, a day that in the
city (or in any cities, if more than one) in which amounts are payable, as
specified in the form of such Security, which is not a day on which banking
institutions and trust companies are authorized by law or regulation or
executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or if at any time
after the execution and delivery of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, the body performing such duties on such date.
"Company Order" means a written statement, request or order of the
Issuer which is signed in the Issuer's name by the chairman of the Board of
Directors, the president, any executive vice president, any senior vice
president or any vice president of the Issuer.
"Corporate Trust Office" means the office of the Trustee at which
the corporate trust business of the Trustee shall, at any particular time, be
principally administered, which office is, at the date as of which this
Indenture is dated, located at
.
"Coupon" means any interest coupon appertaining to a Security.
"Debt" shall have the meaning set forth in Section 5.1.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Defeasance" shall have the meaning set forth in Section 10.1.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Registered
Global Securities, the Person designated as the Depositary by the Issuer
pursuant to Section 2.3 until a successor Depositary shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean or include each Person who is then a Depositary
hereunder, and if at any time there is more than one such Person, "Depositary"
as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Registered Global Securities of that series;
provided that any Person that is a Depositary hereunder must be a clearing
agency registered under the Exchange Act and any other applicable statute or
regulation.
"Dollar" means the coin or currency of the United States of America
as at the time of payment is legal tender for the payment of public and private
debts.
"ECU" means The European Currency Unit as defined and revised from
time to time by the Council of European Communities.
"Event of Default" means any event or condition specified as such in
Section 5.1.
"Exchange Act" means the Securities and Exchange Act of 1934, as
amended.
"Foreign Currency" means a currency issued by the government of a
country other than the United States.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Indebtedness
or other obligation of any other Person and, without limiting the generality of
the foregoing, 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 (whether arising by virtue
of partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise), or (ii) entered into for the purpose 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 that the term Guarantee shall
not include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" as used as a verb has a corresponding meaning.
"Holder", "Holder of Securities", "Securityholder" or other similar
terms mean (a) in the case of any Registered Security, the Person in whose name
such Security is registered in the Security register kept by the Issuer for that
purpose in accordance with the terms hereof, and (b) in the case of any
Unregistered Security, the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
"Indenture" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular series
of Securities established as contemplated hereunder.
"Insolvency Law" means any applicable bankruptcy, insolvency,
reorganization or similar law in any applicable jurisdiction.
"Interest" means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Issuer" means McMoRan Exploration Co., a Delaware corporation, and,
subject to Article Nine, its successors and assigns.
"Judgment Currency" shall have the meaning set forth in Section
11.12.
"Officers' Certificate" means a certificate signed by the chairman
of the board or the president or any vice president (whether or not designated
by a number or numbers or a word or words added before or after the title "Vice
President") and by the treasurer or any assistant treasurer or the secretary or
any assistant secretary of the Issuer and delivered to the Trustee. Each such
certificate shall include the statements provided for in Section 11.5, if and to
the extent required hereby.
"Opinion of Counsel" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Issuer or such other legal
counsel who may be satisfactory to the Trustee. Each such opinion shall include
the statements provided for in Section 11.5, if and to the extent required
hereby.
"Original Issue Date" of any Security (or portion thereof) means the
earlier of (a) the Issue Date of such Security or (b) the Issue Date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution. For purposes
of this definition, "Issue Date" means, with respect to a Security, the date of
original issuance thereof.
"Original Issue Discount Security" means any Security that provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"Outstanding", when used with reference to Securities of any series
issued hereunder, shall, subject to the provisions of Section 7.4, mean, as of
any particular time, all Securities of such series authenticated and delivered
by the Trustee under this Indenture, except:
(a) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(b) Securities (other than Securities of any series as to
which the provisions of Article 10 hereof shall not be applicable), or portions
thereof, for the payment or redemption of which monies or U.S. Government
Obligations (as provided for in Section 10.1) in the necessary amount shall have
been deposited in trust with the Trustee or with any paying agent (other than
the Issuer) or shall have been set aside, segregated and held in trust by the
Issuer (if the Issuer shall act as its own paying agent), provided that if such
Securities, or portions thereto, are to be redeemed prior to the Stated Maturity
thereof, notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving such
notice; and
(c) Securities which shall have been paid or in substitution
for which other Securities shall have been authenticated and delivered pursuant
to the terms of Section 2.9 (unless proof satisfactory to the Trustee is
presented that any of such Securities is held by a Person in whose hands such
Security is a legal, valid and binding obligation of the Issuer).
In determining whether the Holders of the requisite principal amount of
Outstanding Securities of any or all series have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, the principal
amount of an Original Issue Discount 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 5.1.
"Periodic Offering" means an offering of Securities of a series from
time to time, the specific terms of which Securities, including, without
limitation, the rate or rates of interest, if any, thereon, the Stated Maturity
or maturities thereof and the redemption provisions, if any, with respect
thereto, are to be determined by the Issuer or its agents upon the issuance of
such Securities.
"Person" means any individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Principal" whenever used with reference to the Securities of any
series or any portion thereof, shall be deemed to include "and premium, if
any".
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Global Security" means a Security evidencing all or a
part of a series of Registered Securities, issued to the Depositary for such
series in accordance with Section 2.4, and bearing the legend prescribed in
Section 2.4.
"Registered Security" means any Security registered on the Security
register of the Issuer, which Security shall be without Coupons.
"Regular Record Date" for interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 2.3, or if no such date is established,
if such Interest Payment Date is the first day of a calendar month, the
fifteenth day of the next preceding calendar month or, if such Interest Payment
Date is the fifteenth day of a calendar month, the first day of such calendar
month, whether or not such Regular Record Date is a Business Day.
"Required Currency" shall have the meaning set forth in Section 11.12.
"Responsible Officer", when used with respect to the Trustee means
the Chairman of the Board of Directors, the President, the Secretary, the
Treasurer, or any other officer of the Trustee customarily performing corporate
trust functions.
"SEC Reports" shall have the meaning set forth in Section 4.3.
"Securities Act" means the Securities Act of 1933, as amended.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and more particularly means any Securities of any
series, authenticated and delivered under this Indenture.
"Security Registrar" means the Trustee or any successor Security
Registrar appointed by the Issuer.
"Stated Maturity" means, with respect to any Security, the date
specified in such Security as the fixed date on which the 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 unless such contingency has occurred) and with respect to any
installment of interest upon such Security, the date specified in such Security,
or Coupon appertaining thereto, if applicable as the fixed date on which such
installment of interest is due and payable.
"Trust Indenture Act of 1939" (except as otherwise provided in
Sections 8.1 and 8.2) means the Trust Indenture Act of 1939 as in force at the
date as of which this Indenture was originally executed.
"Trustee" means the Person identified as "Trustee" in the first
paragraph hereof and, subject to the provisions of Article Six, shall also
include any successor trustee. "Trustee" shall also mean or include each person
who is then a trustee hereunder and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to the Securities of such series.
"Unregistered Security" means any Security other than a Registered Security.
"U.S. Government Obligations" shall have the meaning set forth in Section
10.1(A).
"Yield to Maturity" means the yield to maturity on a series of
Securities, calculated at the time of the issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with generally accepted financial practice.
ARTICLE TWO
ISSUE, EXECUTION, FORM AND REGISTRATION OF SECURITIES
SECTION 2.1 Forms Generally. The Securities of each series and the
Coupons, if any, issued hereunder shall be substantially in such form and bear
such legends (not inconsistent with this Indenture) as shall be established by
or pursuant to one or more Board Resolutions of the Issuer (as set forth in a
Board Resolution of the Issuer or, to the extent established pursuant to rather
than set forth in a Board Resolution of the Issuer, an Officers' Certificate of
the Issuer detailing such establishment) or in one or more indentures
supplemental hereto, in each case with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture and may have imprinted or otherwise reproduced thereon such legend or
legends or endorsements, not inconsistent with the provisions of this Indenture,
as may be required to comply with any law or with any rules or regulations
pursuant thereto, or with any rules of any securities exchange or to conform to
general usage, all as may be determined by the officers of the Issuer executing
such Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any. If temporary Securities are issued as permitted
by Section 2.11, the form thereof also shall be established as provided in the
preceding sentence.
The definitive Securities and Coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities and
Coupons, if any, as evidenced by their execution of such Securities and Coupons,
if any.
SECTION 2.2 Form of Trustee's Certificate of Authentication. The
Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
____________________________, Trustee
By:
Authorized Officer"
If at any time there shall be an Authenticating Agent appointed with
respect to any series of Securities, the Securities of such series may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternate certificate of authentication in substantially the following form:
"This is one of the Securities of the series designated herein referred to
in the within-mentioned Indenture.
______________________________, Trustee
By:
As Authenticating Agent
By:
Authorized Officer"
SECTION 2.3 Amount Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited.
The Securities may be issued in one or more series and each such series
shall rank equally and pari passu with all other unsecured and unsubordinated
Debt of the Issuer. There shall be established in or pursuant to one or more
Board Resolutions of the Issuer (and to the extent established pursuant to
rather than set forth in a Board Resolution, in an Officers' Certificate
detailing such establishment) or in one or more indentures supplemental hereto,
prior to the initial issuance of Securities of any series,
(1) the designation of the Securities of the series, which shall
distinguish the Securities of the series from the Securities of all other
series;
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency in which the
Securities of that series are denominated (including, but not limited to, any
Foreign Currency or ECU);
(4) the date or dates on which the principal of the Securities of
the series is payable;
(5) the rate or rates at which the Securities of the series shall
bear interest, if any, the date or dates from which such interest shall accrue,
the Interest Payment Date on which any such interest shall be payable and (in
the case of Registered Securities) the Regular Record Date for any interest
payable on any Interest Payment Date and/or the method by which such rate or
rates or Regular Record Date or Dates shall be computed or determined;
(6) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in
Section 3.2);
(7) the right, if any, of the Issuer or any Holder to redeem or
cause to be redeemed Securities of the series, in whole or in part, at its
option and the period or periods within which, the price or prices at which, and
the manner in which (if different from the provisions of Article Twelve hereof),
and any terms and conditions upon which Securities of the series may be so
redeemed, pursuant to any sinking fund or otherwise and/or the method by which
such price or prices shall be determined;
(8) the obligation, if any, of the Issuer to redeem, purchase or
repay Securities of the series, in whole or in part, pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a Holder
thereof and the price or prices (and/or the method by which such price or prices
shall be determined) at which, the period or periods within which and the manner
in which (if different from the provisions of Article Twelve hereof) Securities
of the series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof in the case of Registered Securities, or $1,000 and $5,000 in
the case of Unregistered Securities, the denominations in which Securities of
the series shall be issuable;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the maturity thereof;
(11) if other than the coin or currency in which the Securities of
that series are denominated, the coin or currency in which payment of the
principal of or interest on the Securities of such series shall be payable;
(12) if the principal of or interest on the Securities of such
series are to be payable, at the election of the Issuer or a Holder thereof, in
a coin or currency other than that in which the Securities are denominated, the
period or periods within which, and the terms and conditions upon which, such
election may be made and the manner in which the exchange rate with respect to
such payments shall be determined;
(13) if the amount of payments of principal of and/or interest on
the Securities of the series may be determined with reference to the value or
price of any one or more commodities, currencies or indices, the manner in which
such amounts will be determined;
(14) whether the Securities of the series will be issuable as
Registered Securities (and if so, whether such Securities will be issuable as
Registered Global Securities and, if so, the Depositary therefor and the form of
any legend in addition or in lieu of that provided in Section 2.4 to be borne by
such Registered Global Security) or Unregistered Securities (with or without
Coupons), or any combination of the foregoing, any restrictions and procedures
applicable to the offer, sale or delivery of Unregistered Securities or the
payment of interest thereon, if other than provided in Section 2.8, and the
terms upon which Unregistered Securities of any series may be exchanged for
Registered Securities of such series and vice versa if other than provided in
Section 2.8;
(15) whether and under what circumstances the Issuer will pay
additional amounts on the Securities of the series to Holders, or certain
Holders, thereof in respect of any tax, assessment or governmental charge
withheld or deducted and, if so, whether the Issuer will have the option to
redeem such Securities rather than pay such additional amounts (and the terms of
any such option);
(16) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, the form and terms of such
certificates, documents or conditions;
(17) any trustees, depositaries authenticating or paying agents,
transfer agents or registrars or any other agents with respect to the Securities
of such series;
(18) provisions, if any, granting specific rights to Holders or
Securities of such series upon the occurrence of such events as may be
specified;
(19) any deletions from, modifications of or additions to the
Events of Default or covenants set forth herein (including any defined terms
relating thereto);
(20) the term and condition, upon which and the manner in which
Securities of the series may be defeased or defeasible if different from the
provisions of Article Ten;
(21) whether the Securities will be issued as global Securities
and, if other than as provided in Section 2.8, the terms upon which such global
Securities may be exchanged for definitive Securities;
(22) offices at which presentation and demands may be made and
notices be served, if other than the Corporate Trust Office; and
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons appertaining thereto, if any,
shall be substantially identical, except in the case of Registered Securities as
to denomination and except as may otherwise be provided by or pursuant to the
Board Resolution or Officers' Certificate referred to above or as set forth in
any such indenture supplemental hereto. All Securities of any one series need
not be issued at the same time and may be issued from time to time, consistent
with the terms of this Indenture, if so provided by or pursuant to such Board
Resolution, such Officers' Certificate or in any such indenture supplemental
hereto.
SECTION 2.4 Authentication and Delivery of Securities. Upon the execution
and delivery of this Indenture, or from time to time thereafter, Securities,
including Coupons appertaining thereto, if any, may be executed by the Issuer
and delivered to the Trustee for authentication together with the applicable
documents referred to below in this section, and the Trustee shall thereupon
authenticate and deliver such Securities and Coupons appertaining thereto, if
any, to or upon the order of the Issuer (contained in the Company Order referred
to below in this section) or pursuant to such procedures acceptable to the
Trustee and to such recipients as may be specified from time to time by such
Company Order, without any further action by the Issuer. The maturity date,
original issue date, interest rate and any other terms of the Securities of such
series and Coupons, if any, appertaining thereto shall be determined by or
pursuant to such Company Order or procedures authorized by such Company Order.
If provided for in such procedures, such Company Order may authorize
authentication and delivery of Securities pursuant to oral instructions from the
Issuer or its duly authorized agent, which instructions shall be promptly
confirmed in writing. In authenticating such Securities and accepting the
additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive (in the case of subparagraphs 2, 3 and
4 below only at or before the time of the first request of the Issuer to the
Trustee to authenticate Securities of such series) and (subject to Section 6.1)
shall be fully protected in relying upon, unless and until such documents have
been superseded or revoked:
(1) a Company Order requesting such authentication and setting
forth delivery instructions if the Securities and Coupons, if any, are not to be
delivered to the Issuer, provided that, with respect to Securities of a series
subject to a Periodic Offering, (a) such Company Order may be delivered by the
Issuer to the Trustee prior to the delivery to the Trustee of such Securities
for authentication and delivery, (b) the Trustee shall authenticate and deliver
Securities of such series for original issue from time to time, in an aggregate
principal amount not exceeding the aggregate principal amount established for
such series, pursuant to a Company Order or pursuant to procedures acceptable to
the Trustee as may be specified from time to time by a Company Order, (c) the
maturity date or dates, original issue date or dates or interest rate or rates
and any other terms of Securities of such series shall be determined by a
Company Order or pursuant to such procedures and (d) if provided for in such
procedures, such Company Order may authorize authentication and delivery of
Securities pursuant to oral or electronic instructions from the Issuer or its
duly authorized agent or agents, which oral or electronic instructions shall be
promptly confirmed in writing, and (e) after the original issuance of the first
Security of such series to be issued, any separate request by the Issuer that
the Trustee authenticate Securities of such series for original issuance will be
deemed to be a certification by the Issuer that it is in compliance with all
conditions precedent provided for in this Indenture relating to the
authentication and delivery of such Securities;
(2) any Board Resolution, Officers' Certificate and/or executed
supplemental indenture referred to in Sections 2.1 and 2.3 by or pursuant to
which the forms and terms of the Securities and Coupons, if any, were
established;
(3) an Officers' Certificate setting forth the form or forms and
terms of the Securities and stating that the form or forms and terms of the
Securities and Coupons, if any, have been established pursuant to Sections 2.1
and 2.3 and comply with this Indenture, and covering such other matters as the
Trustee may reasonably request; and
(4) At the option of the Issuer, either an Opinion of Counsel of
the Issuer, or a letter addressed to the Trustee permitting it to rely on an
Opinion of Counsel of the Issuer, substantially to the effect that:
(a) the forms of the Securities and Coupons, if any,
have been duly authorized and established in conformity with the provisions of
this Indenture;
(b) in the case of an underwritten offering, the terms of
the Securities have been duly authorized and established in conformity with the
provisions of this Indenture, and, in the case of a Periodic Offering, certain
terms of the Securities have been established pursuant to a Board Resolution of
the issuer, an Officers' Certificate or a supplemental indenture in accordance
with this Indenture, and when such other terms as are to be established pursuant
to procedures set forth in a Company Order shall have been established, all such
terms will have been duly authorized by the Issuer and will have been
established in conformity with the provisions of this Indenture;
(c) when the Securities and Coupons, if any, have been
executed by the Issuer and authenticated by the Trustee in accordance with the
provisions of this Indenture and delivered to and duly paid for by the
purchasers thereof, they will have been duly issued under this Indenture and
will be valid and legally binding obligations of the Issuer, enforceable in
accordance with their respective terms, and will be entitled to the benefits of
this Indenture; and
(d) the execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under the Securities and the
Coupons, if any, will not contravene any provision of applicable law or the
certificate of incorporation or by-laws of the Issuer or to the best of
counsel's knowledge any agreement or other instrument binding upon the Issuer
that is material to the Issuer or, to the best of such counsel's knowledge but
without any independent investigation, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Issuer and no
consent, approval or authorization of any governmental body or agency is
required for the performance by the Issuer of its obligations under the
Securities and Coupons, if any, except such as are specified and have been
obtained and such as may be required by the securities or blue sky laws of the
various states in connection with the offer and sale of the Securities and
Coupons, if any.
In rendering such opinions, such counsel may qualify any opinions as to
enforceability by stating that such enforceability may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, liquidation, moratorium and
other similar laws affecting the rights and remedies of creditors and is subject
to general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law). Such counsel may rely upon
opinions of other counsel (copies of which shall be delivered to the Trustee),
who shall be counsel reasonably satisfactory to the Trustee, in which case the
opinion shall state that such counsel believes he and the Trustee are entitled
so to rely. Such counsel may also state that, insofar as such opinion involves
factual matters, he has relied, to the extent he deems proper, upon certificates
of officers of the Issuer and any of its subsidiaries and certificates of
public officials.
The Trustee shall have the right to decline to authenticate and deliver
any Securities under this Section if the Trustee, being advised by counsel,
determines that such action may not lawfully be taken by the Issuer or if the
Trustee in good faith by its Board of Directors or board of trustees, executive
committee, or a trust committee of directors or trustees or Responsible Officers
shall determine that such action would expose the Trustee to personal liability
to existing Holders or would affect the Trustee's own rights, duties or
immunities under the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that all or a
portion of the Securities of a series are to be issued in the form of one or
more Registered Global Securities, then the Issuer shall execute and the Trustee
shall, in accordance with this Section 2.4 and the Company Order with respect to
such series, authenticate and deliver one or more Registered Global Securities
that (i) shall represent and shall be denominated in an amount equal to the
aggregate principal amount of all or a portion of the Securities of such series
issued and not yet canceled or exchanged to be represented by such Registered
Global Securities, (ii) shall be registered in the name of the Depositary for
such Registered Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or a nominee thereof
or a custodian therefor or pursuant to such Depositary's instructions and (iv)
shall bear a legend substantially to the following effect: "This Security is a
Registered Global Security within the meaning of the Indenture hereinafter
referred to and is registered in the name of a Depositary or a nominee thereof.
This Security may not be exchanged in whole or in part for a Security
registered, and no transfer of this Security in whole or in part may be
registered in the name of any Person other than such Depositary or a nominee
thereof, except in the limited circumstances described in the Indenture."
SECTION 2.5 Execution of Securities. The Securities and, if applicable,
each Coupon appertaining thereto shall be signed on behalf of the Issuer by the
chairman of the Board of Directors, the president, any vice president (whether
or not designated by a number or numbers or a word or words added before or
after the title "Vice President") or the Treasurer of the Issuer, under its
corporate seal (except in the case of Coupons) which may, but need not be,
attested. Such signature may be the manual or facsimile signature of the
present or any future such chairman or officers. The corporate seal of the
Issuer may be in the form of a facsimile thereof and may be impressed, affixed,
imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of any such signature shall not
affect the validity or enforceability of any Security that has been duly
authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the
Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed shall be authenticated and delivered by the Trustee
or disposed of by the Issuer, such Security or Coupon nevertheless may be
authenticated and delivered or disposed of as though the Person who signed such
Security or Coupon had not ceased to be such officer of the Issuer; and any
Security or Coupon may be signed on behalf of the Issuer by such Person as, at
the actual date of the execution of such Security or Coupon, shall be the proper
officer of the Issuer, although at the date of the execution and delivery of
this Indenture any such Person was not such officer.
SECTION 2.6 Certificate of Authentication. Only such Securities as shall
bear thereon a certificate of authentication substantially in the form set forth
in Section 2.2, executed by the Trustee by the manual signature of one of its
authorized officers, shall be entitled to the benefits of this Indenture or be
valid or obligatory for any purpose. Such certificate by the Trustee upon any
Security executed by the Issuer shall be conclusive evidence that the Security
and Coupons, if any, appertaining thereto so authenticated have been duly
authenticated and delivered hereunder and that the Holder is entitled to the
benefits of this Indenture.
SECTION 2.7 Denomination and Date of Securities; Payments of Interest.
The Securities of each series shall be issuable as Registered Securities or
Unregistered Securities in denominations established as contemplated by Section
2.3 or, with respect to the Registered Securities of any series, if not so
established, in denominations of $1,000 and any integral multiple thereof. If
denominations of Unregistered Securities of any series are not so established,
such Securities shall be issuable in denominations of $1,000 and $5,000. The
Securities of each series shall be numbered, lettered or otherwise distinguished
in such manner or in accordance with such plan as the chairman or the officers
of the Issuer executing the same may determine with the approval of the Trustee,
as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication.
Each Unregistered Security shall be dated as provided in or pursuant to the
Board Resolution or Resolutions or indenture supplemental hereto referred to in
Section 2.3 or, if not so specified, each such Unregistered Security shall be
dated as of the date of issuance of the first Unregistered Security of such
series to be issued. The Securities of each series shall bear interest, if any,
from the date, and such interest shall be payable on the Interest Payment Dates,
established as contemplated by Section 2.3.
The Person in whose name any Registered Security of any series is
registered at the close of business on any Regular Record Date applicable to
such series with respect to any Interest Payment Date for such series shall be
entitled to receive the interest, if any, payable on such Interest Payment Date
notwithstanding any transfer or exchange of such Registered Security subsequent
to such Regular Record Date and prior to such Interest Payment Date, except if
and to the extent the Issuer shall default in the payment of the interest due on
such Interest Payment Date for such series, in which case such defaulted
interest shall then cease to be payable to the Holder on such Regular Record
Date by virtue of having been such Holder and shall be paid to the Persons in
whose names Outstanding Registered Securities for such series are registered at
the close of business on a subsequent record date (which shall be not less than
five Business Days prior to the date of payment of such defaulted interest)
established by notice given by mail by or on behalf of the Issuer to the Holders
of Registered Securities not less than 15 days preceding such subsequent record
date. Interest on any Unregistered Securities which is due on any Interest
Payment Date shall be paid to the Holder of the applicable Coupon appertaining
to such Unregistered Security.
SECTION 2.8 Registration, Transfer and Exchange. The Issuer will cause to
be kept at each office or agency to be maintained for the purpose as provided in
Section 3.2 for each series of Securities a register in which, subject to such
reasonable regulations as it may prescribe, it will provide for the registration
of Registered Securities of each series and the registration of transfer of
Registered Securities of such series. Such register shall be in written form in
the English language or in any other form capable of being converted into such
form within a reasonable time. At all reasonable times such register or
registers shall be open for inspection by the Trustee. There may not be more
than one register for each series of Securities.
Upon due presentation for registration of transfer of any Registered
Security of any series at any such office or agency to be maintained for the
purpose provided in Section 3.2, the Issuer 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 such series, Stated Maturity,
interest rate and original issue date in any authorized denominations and of a
like aggregate principal amount and tenor.
Unregistered Securities (except for any temporary global Unregistered
Securities) and Coupons (except for Coupons attached to any temporary global
Unregistered Securities) shall be transferable by delivery.
At the option of the Holder thereof, any Security may be exchanged for a
Security of the same series, of like tenor, in authorized denominations and in
an equal aggregate principal amount upon surrender of such Security at an office
or agency to be maintained for such purpose in accordance with Section 3.2 or as
specified pursuant to Section 2.3, and the Issuer shall execute, and the Trustee
shall authenticate and deliver in exchange therefor, the Security or Securities
which the Holder making the exchange shall be entitled to receive bearing a
number or other distinguishing symbol not contemporaneously outstanding.
Subject to the foregoing, (i) a Registered Security of any series (other than a
Registered Global Security, except as set forth below) may be exchanged for a
Registered Security or Securities of the same series; (ii) if the Securities of
any series are issued in both registered and unregistered form, except as
otherwise specified pursuant to Section 2.3, Unregistered Securities may be
exchanged for a Registered Security or Securities of the same series, but a
Registered Security may not be exchanged for an Unregistered Security or
Securities; and (iii) if Unregistered Securities of any series are issued in
more than one authorized denomination, except as otherwise specified pursuant to
Section 2.3, any such Unregistered Security or Securities may be exchanged for
an Unregistered Security or Securities of the same series; provided that in
connection with the surrender of any Unregistered Securities that have Coupons
attached, all unmatured Coupons and all matured Coupons in default must be
surrendered with the Securities being exchanged. If the Holder of an
Unregistered Security is unable to produce any such unmatured Coupon or Coupons
or matured Coupon or Coupons in default, such exchange may be effected if the
Unregistered Securities are accompanied by payment in funds acceptable to the
Issuer in an amount equal to the face amount of such missing Coupon or Coupons,
or the surrender of such missing Coupon or Coupons may be waived by the Issuer
and the Trustee if there is furnished to them such security or indemnity as they
may require to save each of them and any paying agent harmless. If thereafter
the Holder of such Security shall surrender to any paying agent any such missing
Coupon in respect of which such a payment shall have been made, such Holder
shall be entitled to receive from the Issuer the amount of such payment;
provided, however, that, except as otherwise provided in Section 3.2, interest
represented by Coupons shall be payable only upon the presentation and surrender
of those Coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case an Unregistered Security of any series is
surrendered at any such office or agency in exchange for a Registered Security
of the same series of like tenor after the close of business at such officer
agency on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any subsequent
record date and the before the opening of business at such office or agency on
such subsequent date for the payment of interest in default, such Unregistered
Security shall be surrendered without the Coupon relating to such Interest
Payment Date or subsequent date for payment, as the case may be, and interest or
in interest in default, as the case may be, will not be payable on such Interest
Payment Date or subsequent date for payment, as the case may be, in respect of
the Registered Security issued in exchange for such Unregistered Security, but
will be payable only to the Holder of such Coupon when due in accordance with
the provisions of this Indenture. All Securities and Coupons surrendered upon
any exchange or transfer provided for in this Indenture shall be promptly
canceled and disposed of by the Trustee and the Trustee will deliver a
certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of transfer,
exchange, redemption, repurchase or payment shall (if so required by the Issuer
or the Trustee) be duly endorsed by, or be accompanied by a written instrument
or instruments of transfer in form satisfactory to the Issuer and the Trustee,
duly executed by the Holder or his attorney duly authorized in writing.
Each Registered Global Security authenticated under this Indenture shall
be registered in the name of the Depositary designated for such Registered
Global Security or a nominee thereof, and each such Registered Global Security
shall constitute a single security for all purposes of this Indenture.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or
registration of transfer of Securities. No service charge shall be made for any
such transaction.
The Issuer shall not be required to exchange or register a transfer of (a)
any Securities of any series for a period of 15 days next preceding the first
mailing of notice of redemption of Securities of such series to be redeemed, (b)
any Securities selected, called or being called for redemption in whole or in
part, except in the case of any Security to be redeemed in part, the portion
thereof not so to be redeemed, (c) to register the transfer of or exchange any
Security if the Holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Security in whole or in part, except the portion of
such Security not required to be repurchased or (d) to exchange any Unregistered
Security so selected for redemption, except that such Unregistered Security may
be exchanged for a Registered Security of that series and like tenor, provided
that such Registered Security shall be simultaneously surrendered for
redemption.
Notwithstanding any other provision of this Section 2.8, unless and until
it is exchanged in whole or in part for Securities in definitive registered
form, a Registered Global Security representing all or a portion of the
Securities of a series may not be transferred except as a whole by the
Depositary for such series to a nominee of such Depositary or by a nominee of
such Depositary to such Depositary or another nominee of such Depositary or by
such Depositary or any such nominee to a successor Depositary for such series or
a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a series
represented by one or more Registered Global Securities notifies the Issuer that
it is unwilling or unable to continue as Depositary for such Registered
Securities or is no longer eligible because it ceased to be a clearing agency
registered under the Exchange Act or any other applicable statute or regulation,
the Issuer shall appoint a successor Depositary with respect to such Registered
Securities. If a successor Depositary for such Registered Securities is not
appointed by the Issuer within 90 days after the Issuer receives such notice or
becomes aware of such ineligibility, the Issuer's election pursuant to Section
2.3 that such Registered Securities be represented by one or more Registered
Global Securities shall no longer be effective and the Issuer will execute, and
the Trustee, upon receipt of an Officers' Certificate of the Issuer for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive registered
form without Coupons, of like tenor, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Registered
Global Security or Securities representing such Registered Securities in
exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine that the
Registered Securities of any series issued in the form of one or more Registered
Global Securities shall no longer be represented by a Registered Global Security
or Securities. In such event the Issuer will execute, and the Trustee, upon
receipt of an Officers' Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver, Securities
of such series in definitive registered form without Coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount of
the Registered Global Security or Securities representing such Registered
Securities in exchange for such Registered Global Security or Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to
Securities represented by a Registered Global Security, the Depositary for such
Registered Global Security may surrender such Registered Global Security in
exchange in whole or in part for Securities of the same series in definitive
registered form on such terms as are acceptable to the Issuer and such
Depositary. Thereupon, the Issuer shall execute, and the Trustee shall
authenticate and deliver, without service charge,
(i) to the Person specified by such Depositary a new Registered
Security or Securities of the same series, of any authorized denominations as
requested by such Person, in an aggregate principal amount equal to and in
exchange for such Person's beneficial interest in the Registered Global
Security; and
(ii) to such Depositary a new Registered Global Security in a
denomination equal to the difference, if any, between the principal amount of
the surrendered Registered Global Security and the aggregate principal amount of
Registered Securities authenticated and delivered pursuant to clause (i)
above.
Upon the exchange of a Registered Global Security for Securities in
definitive registered form without Coupons, in authorized denominations, such
Registered Global Security shall be canceled by the Trustee or an agent of the
Issuer or the Trustee. Securities in definitive registered form without Coupons
issued in exchange for a Registered Global Security pursuant to this Section 2.8
shall be registered in such names and in such authorized denominations as the
Depositary for such Registered Global Security, pursuant to instructions from
its direct or indirect participants or otherwise, shall instruct the Trustee or
an agent of the Issuer or the Trustee. The Trustee or such agent shall deliver
such Securities to or as directed by the Persons in whose names such Securities
are so registered.
None of the Issuer, the Trustee, any paying agent or the Security
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.
All Securities issued upon any transfer or exchange of Securities shall be
valid and legally binding obligations of the Issuer, evidencing the same debt,
and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of
Securities to the contrary, none of the Issuer, the Trustee or any agent of the
foregoing (any of which, other than the Issuer, shall rely on an Officers'
Certificate and an Opinion of Counsel) shall be required to exchange any
Unregistered Security for a Registered Security if such exchange would result in
adverse federal income tax consequences to the Issuer (such as, for example, the
inability of the Issuer to deduct from its income, as computed for federal
income tax purposes, the interest payable on the Unregistered Securities) under
then applicable United States federal income tax laws.
SECTION 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In
case any temporary or definitive Security or any Coupon appertaining to any
Security shall become mutilated, defaced or be apparently destroyed, lost or
stolen, the Issuer in its discretion may execute, and upon the written request
of any officer of the Issuer, the Trustee shall authenticate and deliver a new
Security of the same series, of like tenor and in equal aggregate principal
amount, bearing a number or other distinguishing symbol not contemporaneously
outstanding, in exchange and substitution for the mutilated or defaced Security,
or in lieu of and in substitution for the Security so apparently destroyed, lost
or stolen and, if applicable, with Coupons corresponding to the Coupons
appertaining to the Securities so mutilated, defaced, destroyed, lost or stolen,
or in exchange for the Security to which a mutilated, defaced, destroyed, lost
or stolen Coupon appertained with Coupons appertaining thereto corresponding to
the Coupons so mutilated, defaced, destroyed, lost or stolen. In every case the
applicant for a substitute Security or Coupon shall furnish to the Issuer and to
the Trustee and any agent of the Issuer or the Trustee such security or
indemnity as may be required by them to indemnify and defend and to save each of
them harmless and, in every case of apparent destruction, loss or theft,
evidence to their satisfaction of the apparent destruction, loss or theft of
such Security or Coupon and of the ownership thereof. In the case of a
mutilated or defaced Security or Coupon, the applicant for a substitute Security
or Coupon shall surrender such mutilated or defaced Security or Coupon to the
Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer 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 (including
the fees and expenses of the Trustee or its agent) connected therewith. In case
any Security or Coupon which has matured or is about to mature or has been
called for redemption in full shall become mutilated or defaced or be apparently
destroyed, lost or stolen, the Issuer may, instead of issuing a substitute
Security or Coupon, pay or authorize the payment of the same or the relevant
Coupon (without surrender thereof except in the case of a mutilated or defaced
Security or Coupon), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity as any of them may require to save each of them harmless
from all risks, however remote, arising as a result of such payment and, in
every case of apparent destruction, loss or theft, the applicant shall also
furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to their satisfaction of the apparent destruction, loss or theft of
such Security and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to the
provisions of this Section by virtue of the fact that any such Security or
Coupon is apparently destroyed, lost or stolen shall constitute an additional
contractual obligation of the Issuer, whether or not the apparently destroyed,
lost or stolen Security or Coupon shall be at any time enforceable by anyone and
shall be entitled to all the benefits of (but shall be subject to all the
limitations of rights set forth in) this Indenture equally and proportionately
with any and all other Securities or Coupons of such series duly authenticated
and delivered hereunder. All Securities or Coupons shall be held and owned upon
the express condition that, to the extent permitted by law, the foregoing
provisions are exclusive with respect to the replacement or payment of
mutilated, defaced, or apparently destroyed, lost or stolen Securities and
Coupon and shall preclude any and all other rights or remedies notwithstanding
any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 2.10 Cancellation of Securities; Disposition Thereof. All
Securities and Coupons surrendered for payment, repurchase, redemption,
registration of transfer or exchange, or for credit against any payment in
respect of a sinking or analogous fund, if surrendered to the Issuer or any
agent of the Issuer or the Trustee or any agent of the Trustee, shall be
delivered to the Trustee or its agent for cancellation or, if surrendered to the
Trustee, shall be canceled by it; and no Securities shall be issued in lieu
thereof except as expressly permitted by any of the provisions of this
Indenture. The Trustee or its agent shall dispose of canceled Securities and
Coupons held by it and deliver a certificate of disposition to the Issuer unless
the Issuer shall direct that canceled Securities be returned to it. If the
Issuer shall acquire any of the Securities or Coupons, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities or Coupons unless and until the same are delivered to the
Trustee for cancellation.
SECTION 2.11 Temporary Securities. Pending the preparation of definitive
Securities for any series, the Issuer may execute and the Trustee shall
authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without Coupons, or as Unregistered Securities
with or without Coupons attached thereto, of any authorized denomination, and
substantially in the form of the definitive Securities of such series but with
such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of the
Trustee as evidenced by the execution and authentication thereof. Temporary
Securities may contain such references to any provisions of this Indenture as
may be appropriate. Every temporary Security shall be executed by the Issuer
and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive
Securities. Without unreasonable delay the Issuer shall execute and shall
furnish definitive Securities of such series and thereupon temporary Registered
Securities of such series may be surrendered in exchange therefor without charge
at each office or agency to be maintained by the Issuer for that purpose
pursuant to Section 3.2 and, in the case of Unregistered Securities, at any
agency maintained by the Issuer for such purpose as specified pursuant to
Section 3.2, and the Trustee shall authenticate and deliver in exchange for such
temporary Securities of such series an equal aggregate principal amount of
definitive Securities of the same series having authorized denominations and, in
the case of Unregistered Securities, having attached thereto any appropriate
Coupons. Until so exchanged, the temporary Securities of any series shall be
entitled to the same benefits under this Indenture as definitive Securities of
such series, unless otherwise established pursuant to Section 2.3. The
provisions of this Section are subject to any restrictions or limitations on the
issue and delivery of temporary Unregistered Securities of any series that may
be established pursuant to Section 2.3 (including any provision that
Unregistered Securities of such series initially be issued in the form of a
single global Unregistered Security to be delivered to a depositary or agency
located outside the United States and the procedures pursuant to which
definitive or global Unregistered Securities of such series would be issued in
exchange for such temporary global Unregistered Security).
ARTICLE THREE
COVENANTS OF THE ISSUER
SECTION 3.1 Payment of Principal and Interest. The Issuer covenants and
agrees for the benefit of each series of Securities issued hereunder that it
will duly and punctually pay or cause to be paid the principal of and interest
on, each of the Securities of such series (together with any additional amounts
payable with respect to and pursuant to the terms of such Securities) at the
place or places, at the respective times and in the manner provided in the
Securities of such series and in the Coupons, if any, appertaining thereto and
in this Indenture. The interest on Securities with Coupons attached (together
with any additional amounts payable with respect to such Securities) shall be
payable only upon presentation and surrender of the several Coupons for such
interest installments as are evidenced thereby as they severally mature. If any
temporary Unregistered Security provides that interest thereon may be paid while
such Security is in temporary form, the interest on any such temporary
Unregistered Security (together with any additional amounts payable with respect
to such Securities) shall be paid, as to the installments of interest evidenced
by Coupons attached thereto, if any, only upon presentation of such Securities
for notation thereon of the payment of such interest, in each case subject to
any restrictions that may be established pursuant to Section 2.3. The interest
on Registered Securities (together with any additional amounts payable with
respect to such Security ) shall be payable only to or upon the written order of
the Holders thereof entitled thereto and, at the option of the Issuer, may be
paid by wire transfer (subject to the procedures of the paying agent) or by
mailing checks for such interest payable to or upon the written order of such
Holders at their last addresses as they appear on the registry books of the
Issuer.
SECTION 3.2 Offices for Payments, etc. So long as any Registered
Securities are authorized for issuance pursuant to this Indenture or remain
Outstanding, the Issuer will maintain in the Borough of Manhattan, The City of
New York, an office or agency where the Registered Securities of each series may
be surrendered for payment and where the Registered Securities of each series
may be surrendered for registration of transfer or exchange as is provided in
this Indenture.
The Issuer will maintain one or more offices or agencies in a city or
cities located outside the United States (including any city in which such an
office or agency is required to be maintained under the rules of any stock
exchange on which the Securities of such series are listed) where the
Unregistered Securities, if any, of each series and Coupons, if any,
appertaining thereto may be surrendered for payment or exchange. No payment on
or exchange of any Unregistered Security or Coupon will be made upon surrender
of such Unregistered Security or Coupon at an office or agency of the Issuer
within the United States nor will any payment be made by transfer to an account
in, or by mail to an address in, the United States unless pursuant to applicable
United States laws and regulations then in effect such payment can be made
without adverse tax consequences to the Issuer. Notwithstanding the foregoing,
payments in Dollars of Unregistered Securities of any series and Coupons
appertaining thereto which are payable in Dollars may be made at an agency of
the Issuer maintained in The City of New York if such payment in Dollars at each
agency maintained by the Issuer outside the United States for payment on such
Unregistered Securities is illegal or effectively precluded by exchange controls
or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, the City of New
York, an office or agency where notices and demands to or upon the Issuer in
respect of the Securities of any series, the Coupons appertaining thereto, or
this Indenture may be served.
The Issuer will give to the Trustee prompt written notice of the location
of any such office or agency and of any change of location thereof. The Issuer
hereby initially designates the Corporate Trust Office of the Trustee maintained
in the City of New York as the office or agency for each such purpose to be
carried out in New York. The Issuer shall designate an office or agency outside
the United States for each such purpose relating to Unregistered Securities
prior to the issuance of any Unregistered Securities. In case the Issuer shall
fail to maintain any such office or agency or shall fail to provide such notice
of the location or of any change in the location thereof, presentations and
demands may be made and notices may be served at the Corporate Trust Office.
The Issuer will cause to be kept a register at the office of the Security
Registrar in which, subject to such reasonable regulations as it may prescribe,
the Issuer will provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby initially appointed Security Registrar for
the purpose of registering Securities and transferring Securities as herein
provided.
The Issuer may from time to time designate one or more additional offices
or agencies where the Securities of any series and any Coupons appertaining
thereto may be presented for payment, where the Securities of that series may be
presented for exchange as provided in this Indenture and pursuant to Section 2.3
and where the Registered Securities of that series may be presented for
registration of transfer as in this Indenture provided, and the Issuer may from
time to time rescind any such designation, as the Issuer may deem desirable or
expedient; provided, however, that no such designation or rescission shall in
any manner relieve the Issuer of its obligation to maintain the agencies
provided for in the first three paragraphs of this Section 3.2. The Issuer will
give to the Trustee prompt written notice of any such designation or
rescission thereof.
SECTION 3.3 Appointment to Fill a Vacancy in Office of Trustee. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 6.9, a Trustee, so that there
shall at all times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.4 Paying Agents. Whenever the Issuer shall appoint a paying
agent other than the Trustee with respect to the Securities of any series, it
will cause such paying agent 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,
(a) that it will hold all sums received by it as such agent for
the payment of the principal of or interest on the Securities of such series
(whether such sums have been paid to it by the Issuer or by any other obligor on
the Securities of such series) in trust for the benefit of the Holders of the
Securities of such series or of the Trustee;
(b) that it will give the Trustee notice of any failure by the
Issuer (or by any other obligor on the Securities of such series) to make any
payment of the principal of or interest on the Securities of such series when
the same shall be due and payable;
(c) that it will, at any time during the continuance of any such
failure, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such paying agent; and
(d) that it will in all respects comply with the provisions of the
Trust Indenture Act of 1939 applicable to such paying agent.
The Issuer will, on or prior to each due date of the principal of or
interest on the Securities of such series, deposit with the paying agent a sum
sufficient to pay such principal or interest so becoming due, such sum to be
held as provided in the Trust Indenture Act of 1939, and (unless such paying
agent is the Trustee) the Issuer will promptly notify the Trustee of any failure
to take such action.
If the Issuer shall act as its own paying agent with respect to the
Securities of any series, it will, on or before each due date of the principal
of or interest on the Securities of such series, set aside, segregate and hold
in trust for the benefit of the Holders of the Securities of such series or the
Coupons appertaining thereto a sum sufficient to pay such principal or interest
so becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided. The Issuer will promptly notify the Trustee of
any failure to take such action.
Anything in this Section to the contrary notwithstanding, but subject to
Section 10.1, the Issuer may at any time, for the purpose of obtaining a
satisfaction and discharge with respect to one or more or all series of
Securities hereunder or with respect to this Indenture or for any other reason,
pay or cause to be paid to the Trustee all sums held in trust for any such
series by the Issuer or any paying agent hereunder, as required by this Section,
such sums to be held by the Trustee upon the trusts herein contained.
Anything in this Section to the contrary notwithstanding, the agreement to
hold sums in trust as provided in this Section is subject to the provisions of
Sections 10.3 and 10.4.
SECTION 3.5 Written Statement to Trustee. The Issuer will deliver to the
Trustee on or before March 31 in each year (beginning with March 31, _____) a
brief certificate (which need not comply with Section 11.5) from the Issuer,
signed by its principal executive officer, principal financial officer, or
principal accounting officer, stating that in the course of the performance by
the signer of his duties as an officer of the Issuer, he would normally have
knowledge of any Default or non-compliance by the Issuer in the performance or
fulfillment of any covenant, agreement or condition of the Issuer, contained in
this Indenture, stating whether or not he has knowledge of any such Default or
non-compliance and, if so, specifying each such Default or non-compliance of
which the signer has knowledge and the nature thereof.
SECTION 3.6 Corporate Existence. Subject to Article Nine, the Issuer will
do or cause to be done all things necessary to preserve and keep in full force
and effect its corporate existence, rights and franchises; provided that the
Issuer shall not be required to preserve any such right or franchise if the
Issuer shall determine that the preservation thereof is no longer desirable in
the conduct of its business and that the loss thereof is not disadvantageous in
any material respect to the Holders of any series of Securities.
SECTION 3.7 Luxembourg Publications. In the event of the publication of
any notice pursuant to Section 5.11, 6.9, 6.10, 8.2, 10.4, 12.2 or 12.4, the
party making such publication in the City of New York and London shall also, to
the extent that notice is required to be given to Holders of Securities of any
series by applicable Luxembourg law or stock exchange regulation, as evidenced
by any Officers' Certificate delivered to such party, make a similar publication
in Luxembourg.
ARTICLE FOUR
SECURITYHOLDERS' LISTS AND
REPORTS BY THE ISSUER AND THE TRUSTEE
SECTION 4.1 Issuer to Furnish Trustee Information as to Names and
Addresses of Securityholders. The Issuer and any other obligor on the
Securities each covenants and agrees that it will furnish or cause to be
furnished to the Trustee a list in such form as the Trustee may reasonably
require of the names and addresses of the Holders of the Securities of each
series:
(a) semiannually and not more than 15 days after each Regular
Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after receipt by the Issuer of any such request as of a date not
more than 15 days prior to the time such information is furnished,
provided that if and so long as the Trustee shall be the Security Registrar for
such series and all of the Securities of any series are Registered Securities,
such list shall not be required to be furnished for such series.
SECTION 4.2 Preservation and Disclosure of Securityholders' Lists.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, all information as to the names and addresses of the
Holders of each series of Securities (i) contained in the most recent list
furnished to the Trustee as provided in Section 4.1, (ii) received by the
Trustee in its capacity as Security Registrar for such series, if so acting, and
(iii) filed with it within two preceding years pursuant to Section 313(c)(2) of
the Trust Indenture Act of 1939. The Trustee may destroy any list furnished to
it as provided in Section 4.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under any series of the
Securities, and the corresponding rights and duties of the Trustee, shall be as
provided by the Trust Indenture Act of 1939.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Issuer and the Trustee that none of the Issuer, the
Trustee or any agent of any of the Issuer or the Trustee shall be held
accountable by reason of any disclosure of information as to names and
addresses of Holders made pursuant to the Trust Indenture Act of 1939.
SECTION 4.3 Reports by the Issuer. The Issuer shall file with the Trustee
and the Commission, and transmit to Holders, such information, documents and
other reports, and such summaries thereof, as may be required pursuant to the
Trust Indenture Act of 1939 at the times and in the manner provided pursuant to
such Act, provided that any such information, documents or reports required to
be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
("SEC Reports") shall be filed with the Trustee within 15 days after the same is
so required to be filed with the Commission.
SECTION 4.4 Reports by the Trustee. (a) Within 60 days after _________
of each year, commencing with the first _____ following the first issuance of
Securities pursuant to Section 2.4, if required by Section 313(a) of the Trust
Indenture Act of 1939, the Trustee shall transmit, pursuant to Section 313(c) of
the Trust Indenture Act, a brief report dated as of such ______ with respect to
any of the events specified in said Section 313(a) which may have occurred since
the later of the immediately preceding ___________________ and the date of this
Indenture.
(b) The Trustee shall transmit the reports required by Section
313(b) of the Trust Indenture Act and Section 5.11 hereof at the times
specified therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Section 313(c) of the Trust Indenture
Act of 1939.
(d) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities of any series are listed, with the Commission and with the
Issuer. The Issuer will promptly notify the Trustee when the Securities of any
series are listed on any stock exchange.
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of
Default. "Event of Default," with respect to Securities of any series wherever
used herein, means one of the following events which shall have occurred and be
continuing (whatever the reason for such Event of Default and whether it shall
be voluntary or involuntary or be 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):
(a) default in the payment of any installment of interest upon any
of the Securities of such series or any Coupon appertaining thereto (together
with any additional amounts payable with respect to such Securities) as and when
the same shall become due and payable, and continuance of such default for a
period of 30 days; or
(b) default in the payment of all or any part of the principal of
any of the Securities of such series as and when the same shall become due and
payable either at their Stated Maturity, upon any redemption by declaration or
otherwise; provided that, if such default is the result of an optional
redemption by the Holders of such Securities, the amount thereof shall be in
excess of $__________ or the equivalent thereof in any currency or composite
currency; or
(c) failure on the part of the Issuer duly to comply with, observe
or perform any of the other covenants or agreements on the part of the Issuer
contained in, or provisions of, the Securities of any series or this Indenture
(other than a covenant or agreement which is not applicable to the Securities of
such series), but only if such default shall not have been remedied for a period
of 60 days after the date on which written notice specifying such failure,
stating that such notice is a "Notice of Default" hereunder and demanding that
the Issuer remedy the same, shall have been given by registered or certified
mail, return receipt requested, to the Issuer by the Trustee, or to the Issuer
and the Trustee by the Holders of at least 25% in aggregate principal amount of
the Outstanding Securities of such series of Securities; or
(d) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Issuer in an involuntary case
or proceeding under any applicable Insolvency Law or (B) a decree or order
adjudging the Issuer a bankrupt or insolvent under an applicable Insolvency Law,
or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Issuer or of any substantial part of the
property of the Issuer or ordering the winding up or liquidation of the affairs
of the Issuer and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(e) the commencement by the Issuer of a voluntary case or
proceeding under any applicable Insolvency Law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by the
Issuer to the entry of a decree or order for relief in respect of the Issuer in
an involuntary case or proceeding under any applicable Insolvency Law or to the
commencement of any bankruptcy or insolvency case or proceeding against the
Issuer or the filing by the Issuer of a petition, answer or consent seeking
reorganization or relief under any applicable Insolvency Law, or the consent by
the Issuer to the filing of such petition or to the appointment of or taking
possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or similar official of the Issuer or of any substantial part of the property of
the Issuer or the making by the Issuer of an assignment for the benefit of
creditors, or the admission by the Issuer in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action (which
shall involve the passing of one or more Board Resolutions by the Issuer) in
furtherance of any such action,
(f) failure by the Issuer to make any payment at maturity (or upon
any redemption), including any applicable grace period, in respect of
indebtedness, which term as used herein means obligations (other than the
Securities of such series or nonrecourse obligations) of, or guaranteed or
assumed by, the Issuer for borrowed money or evidenced by bonds, debentures,
notes or other similar instruments ("Debt") in an amount in excess of
$__________ or the equivalent thereof in any other currency or composite
currency and such failure shall have continued for a period of thirty days after
written notice thereof shall have been given by registered or certified mail,
return receipt requested, to the Issuer by the Trustee, or to the Issuer and the
Trustee by the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities of such series affected thereby;
(g) a default with respect to any Debt, which default results in
the acceleration of Debt in an amount in excess of $__________ or the equivalent
thereof in any other currency or composite currency without such Debt having
been discharged or such acceleration having been cured, waived, rescinded or
annulled for a period of thirty days after written notice thereof shall have
been given by registered or certified mail, return receipt requested, to the
Issuer by the Trustee, or to the Issuer and the Trustee by the Holders of not
less than 25% in aggregate principal amount of the Outstanding Securities of
such series affected thereby; or
(h) any other Event of Default provided for with respect to
Securities of that series in the supplemental indenture under which such series
is issued or in the terms of Securities of such series;
provided that if any such failure, default or acceleration referred to in
clauses (f), (g) and (h) above shall cease or be cured, waived, rescinded or
annulled, then the Event of Default hereunder by reason thereof, and any
acceleration under this Section 5.1 resulting solely therefrom, shall be deemed
likewise to have been thereupon cured, waived, rescinded or annulled without
further action on the part of either the Trustee or any of the
Securityholders.
If an Event of Default (other than those specified in Section 5.1(d) or
(e)) with respect to one or more series of Securities then Outstanding) occurs
and is continuing, then, and in each and every such case, except for any series
of Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 25% in aggregate principal
amount of the Securities of each such affected series then Outstanding hereunder
(each series voting as a separate class) by notice in writing to the Issuer (and
to the Trustee if given by Securityholders), may declare the entire principal
(or, if the Securities of any such affected series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all Securities of the affected series, and the interest
accrued thereon, if any (together with any additional amounts payable with
respect to such Securities), to be due and payable immediately, and upon any
such declaration, the same shall become immediately due and payable. If an
Event of Default specified in Section 5.1(d) or (e) occurs, the entire principal
(or, if any Securities are Original Issue Discount Securities, such portion of
the principal as may be specified in terms thereof) of all the Securities then
Outstanding, and interest accrued thereon, if any, (together with any additional
amounts payable with respect to such Securities) shall become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Securityholder.
The foregoing provisions, however, are subject to the condition that if,
at any time after the principal (or, if the Securities of such series are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series shall have been
so declared due and payable, and before any judgment or decree for the payment
of the monies due shall have been obtained or entered as hereinafter provided,
the Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay
all matured installments of interest (together with any additional amounts
payable with respect to such Securities) upon all the Securities of such series
and the principal of any and all Securities of each such series which shall have
become due otherwise than by acceleration (with interest upon such principal
and, to the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest, (together with any additional amounts
payable with respect to such Securities) at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of each such series (or the respective
rates of interest or Yields to Maturity of all the Securities, as the case may
be) to the date of such payment or deposit) and such amount as shall be
sufficient to cover reasonable compensation to the Trustee and each predecessor
Trustee, its agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee and each predecessor
Trustee except as a result of negligence or bad faith, and if any and all Events
of Default under the Indenture, other than the non-payment of the principal of
Securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein -- then and in every such case
the Holders of a majority in aggregate principal amount of all the Securities of
each such series or of all the Securities, as the case may be, (each series
voting as a separate class), then Outstanding, by written notice to the Issuer
and the Trustee, may waive all defaults with respect to such series and rescind
and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default
or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared
due and payable pursuant to the provisions hereof, then, from and after such
declaration, unless such declaration has been rescinded and annulled, the
principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be
due and payable as a result of such acceleration, and payment of such portion of
the principal thereof as shall be due and payable as a result of such
acceleration, together with accrued interest, if any, thereon and all other
amounts owing thereunder, shall constitute payment in full of such Original
Issue Discount Securities.
SECTION 5.2 Collection of Debt by Trustee; Trustee May Prove Debt. The
Issuer covenants that (a) in case Default shall be made in the payment of any
installment of interest on any of the Securities of any series when such
interest shall have become due and payable and such Default shall have continued
for a period of 30 days or (b) in case Default shall be made in the payment of
all or any part of the principal of any of the Securities of any series when the
same shall have become due and payable, whether upon the Stated Maturity of the
Securities of such series or upon any redemption or by declaration or
otherwise, other than a Default that is the result of an optional redemption by
the Holders of Securities of any series, the amount of which is not in excess of
$__________ or the equivalent thereof in any currency or composite currency,
unless such Default shall have continued for a period of 60 days after giving a
notice with respect thereto under Section 5.1(c), then upon demand of the
Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of
the Securities of such series the whole amount that then shall have become due
and payable on all such Securities of such series, and such Coupons, if any, for
principal, or interest, as the case may be (with interest to the date of such
payment upon the overdue principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series); and in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable compensation to
the Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee except as a result of its negligence or
bad faith.
Until such demand is made by the Trustee, the Issuer may pay the principal
of and interest on the Securities of any series to the Holders, whether or not
the principal of and interest on Securities of such series be overdue.
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 to protect and enforce
its rights and the rights of the Holders by such appropriate judicial proceeding
as the Trustee may deem most effectual to protect and enforce any such rights,
and may prosecute any such action or proceedings to judgment or final decree,
and may enforce any such judgment or final decree against the Issuer or any
other obligor upon the Securities of such series and collect in the manner
provided by law out of the property of the Issuer or any other obligor upon the
Securities of such series, wherever situated the monies adjudged or decreed to
be payable.
In the case of any judicial proceeding relating to the Issuer or any other
obligor upon the Securities of such series, or the property or creditors of the
Issuer or any such obligor, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions
authorized under the Trust Indenture Act of 1939 in order to have claims of the
Holders and the Trustee allowed in any such proceeding. In addition, unless
prohibited by applicable law and regulations, the Trustee shall be entitled and
empowered to vote on behalf of the Holders of Securities of any series in any
election of a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceeding or a Person providing
similar functions in comparable proceedings.
The Trustee shall be authorized to collect and receive any monies or other
property payable or deliverable on any such claims, and to distribute all
amounts received with respect to the claims of the Securityholders and of the
Trustee on their behalf, and any trustee, receiver, or liquidator, custodian or
other similar official is hereby authorized by each of the Securityholders to
make payments to the Trustee, and, in the event that the Trustee shall consent
to the making of payments directly to the Securityholders, to pay to the Trustee
such amounts as shall be sufficient to cover reasonable compensation to the
Trustee, each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of negligence or
bad faith and all other amounts due to the Trustee or any predecessor Trustee
pursuant to Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or vote for or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding except, as aforesaid, to vote for the election of a trustee
in bankruptcy or similar Person.
All rights of action and of asserting claims under this Indenture, or
under any of the Securities of any series or Coupons appertaining to such
series, may be prosecuted and enforced by the Trustee without the possession of
any of the Securities of such series or Coupons appertaining to such series or
the production thereof on 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, subject
to the payment of the expenses, disbursements, advances and compensation of the
Trustee, each predecessor Trustee and their respective agents and attorneys,
shall be for the ratable benefit of the Holders of the Securities of such series
or Coupons appertaining thereto in respect of which action was taken.
In any proceedings brought by the Trustee (and also any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party) the Trustee shall be held to represent all the Holders
of the Securities or Coupons appertaining to such Securities in respect of which
such action was taken, and it shall not be necessary to make any Holders of such
Securities or Coupons appertaining to such Securities, parties to any such
proceedings.
SECTION 5.3 Application of Proceeds. Any monies collected by the Trustee
pursuant to this Article in respect of any series shall be applied in the
following order at the date or dates fixed by the Trustee and, in case of the
distribution of such monies on account of principal or interest, upon
presentation of the several Securities and Coupons appertaining thereto in
respect of which monies have been collected and stamping (or otherwise noting)
thereon the payment, or issuing Securities of the same series, of like tenor, in
reduced principal amounts in exchange for the presented Securities of like
series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to the
Securities of such series in respect of which monies have been collected,
including any and all amounts due the Trustee under Section 6.6;
SECOND: In case the principal of the Securities of such series in
respect of which monies have been collected shall not have become and be then
due and payable, to the payment of interest on the Securities of such series in
default in the order of the maturity of the installments of such interest, with
interest (to the extent that such interest has been collected by the Trustee)
upon the overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in such Securities, such payments to be made ratably to
the Persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in
respect of which monies have been collected shall have become and shall be then
due and payable, to the payment of the whole amount then owing and unpaid upon
all the Securities of such series for principal and interest, with interest upon
the overdue principal; and (to the extent that such interest has been collected
by the Trustee) upon overdue installments of interest at the same rate as the
rate of interest or Yield to Maturity (in the case of Original Issue Discount
Securities) specified in the Securities of such series; and in case such monies
shall be insufficient to pay in full the whole amount so due and unpaid upon the
Securities of such series, then to the payment of such principal and interest or
Yield to Maturity, without preference or priority of principal over interest or
Yield to Maturity, or of interest or Yield to Maturity over principal, or of any
installment of interest over any other installment of interest, or of any
Security of such series over any other Security of such series ratably to the
aggregate of such principal and accrued and unpaid interest or Yield to
Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or
any other Person lawfully entitled thereto.
SECTION 5.4 Suits for Enforcement. In case an Event of Default has
occurred, has not been waived and is continuing, 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 5.5 Restoration of Rights on Abandonment of Proceedings. In case
the Trustee or any Securityholder shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the Trustee
or to such Securityholder, then and in every such case, subject to any
determination in such proceeding, the Issuer, the Trustee and the
Securityholders shall be restored severally and respectively to their former
positions and rights hereunder, and thereafter all rights, remedies and powers
of the Issuer, the Trustee and the Securityholders shall continue as though no
such proceedings had been taken.
SECTION 5.6 Limitations on Suits by Securityholders. No Holder of any
Security of any series or of any Coupon appertaining thereto shall have any
right by virtue or by availing of any provision of this Indenture to institute
any action or proceeding, judicial or otherwise, 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 trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless (i) such Holder previously
shall have given to the Trustee written notice of a continuing Event of Default
as hereinbefore provided, (ii) the Holders of not less than 25% in aggregate
principal amount of the Securities of such affected series then Outstanding,
each series treated as a separate class, shall have made written request upon
the Trustee to institute such action or proceedings 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; (iii) 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 (iv) no direction inconsistent with such written request shall
have been given to the Trustee pursuant to Section 5.9; it being understood and
intended, and being expressly covenanted by the Holder of every Security or
Coupon with every other Holder of the Securities of such series or Coupons and
the Trustee, that no one or more Holders of Securities of such series 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 other Holder of
Securities or Coupons appertaining to such Securities, or to obtain or seek to
obtain priority over or preference to any other such Holder or to enforce any
right under this Indenture, except in the manner herein provided and for the
equal, ratable and common benefit of all Holders of Securities of the applicable
series and Coupons appertaining to such Securities. For the protection and
enforcement of the provisions of this Section, each and every Securityholder and
the Trustee shall be entitled to such relief as can be given either at law or
in equity.
SECTION 5.7 Unconditional Right of Securityholders to Institute Certain
Suits. Notwithstanding any other provision in this Indenture and any provision
of any Security, the right of any Holder of any Security or Coupon to receive
payment of the principal of and interest on (together with any additional
amounts payable with respect to and pursuant to the terms of such Securities)
such Security or Coupon and any interest in respect of a Default in the payment
of any such amounts, on or after the respective due dates expressed in such
Security or Coupon or Redemption Dates provided for therein or to institute suit
for the enforcement of any such payment rights on or after such respective dates
shall not be impaired or affected without the consent of such Holder.
SECTION 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver
of Default. Except as provided in Section 2.9 and 5.6, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders of Securities
or Coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of any of the
Securities or Coupons to exercise any right or power accruing upon any Event of
Default occurring and continuing as aforesaid shall impair any such right or
power or shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.6, every power and remedy given
by this Indenture or by law to the Trustee or to the Holders of Securities or
Coupons may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons.
SECTION 5.9 Control by Securityholders. The Holders of a majority in
aggregate principal amount of the Securities of any series affected 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 by this Indenture with respect to or
for the benefit of such Securities of such series; provided that such direction
shall not be otherwise than in accordance with applicable law and the provisions
of this Indenture and provided further that (subject to the provisions of
Section 6. 1) 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 or proceeding so directed may not be lawfully taken or that the action or
proceeding so directed may expose the Trustee to personal liability or if the
Trustee in good faith by its board of directors or the executive committee
thereof shall so determine that the actions or forbearances specified in or
pursuant to such direction would be unduly prejudicial to the interests of
Holders of the Securities of all series so affected not joining in the giving of
said direction, it being understood that (subject to Section 6.1) the Trustee
shall have no duty to ascertain whether or not such actions or forbearances are
unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its
discretion to take any action deemed proper by the Trustee and which is not
inconsistent with such direction by Securityholders.
SECTION 5.10 Waiver of Past Defaults. Prior to the declaration of
the acceleration of the maturity of the Securities of any series as provided in
Section 5.1, the Holders of a majority in aggregate principal amount of the
Securities of any series at the time Outstanding with respect to which an Event
of Default shall have occurred and be continuing may on behalf of the Holders of
all the Securities of such series waive any past Default or Event of Default
hereunder with respect to the Securities of such series and its consequences,
except a Default (a) in the payment of principal or interest on any Security of
such series or (b) in respect of a covenant or provision hereof which cannot be
modified or amended without the consent of the Holder of each Security
affected.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured, and not to have occurred for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon. In
the case of any such waiver, the Issuer, the Trustee and the Holders of all such
Securities 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 5.11 Trustee to Give Notice of Default, But May Withhold in
Certain Circumstances. The Trustee shall, within ninety days after the
occurrence of a default with respect to the Securities of any series, give
notice of all defaults with respect to that series known to the Trustee (i) if
any Unregistered Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper
in London (and, if required by Section 3.7, at least once in an Authorized
Newspaper in Luxembourg) and (ii) to all Holders of Securities of such affected
series in the manner and to the extent provided in Section 4.4(c), unless such
defaults shall have been cured before the mailing or publication of such notice
(the term "default" or "defaults" for the purposes of this Section 5.11 being
hereby defined to mean any event or condition which is, or with notice or lapse
of time or both would become, an Event of Default); provided that, except in the
case of default in the payment of the principal of or interest on any of the
Securities of such series, or in the payment of any sinking or purchase fund
installment on 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
trust committee of directors or trustees and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Securityholders.
SECTION 5.12 Right of Court to Require Filing of Undertaking to Pay
Costs. All parties to this Indenture agree, and each Holder of any 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, suffered
or omitted by it as Trustee, the filing by any party litigant in such suit other
than the Trustee of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in such suit including the Trustee,
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 shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Securityholder or
group of Securityholders of any series holding in the aggregate more than 10% in
aggregate principal amount of the Securities of such series Outstanding, or to
any suit instituted by any Securityholder for the enforcement of the payment of
the principal of or interest on any Security on or after the due date expressed
in such Security or any date fixed for redemption.
ARTICLE SIX
CONCERNING THE TRUSTEE
SECTION 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default. With respect to the Holders of any series of Securities
issued hereunder, the Trustee, prior to the occurrence of an Event of Default
with respect to the Securities of a particular series, and after the curing or
waiving of all Events of Default which may have occurred with respect to such
series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a particular series has occurred (which has not
been cured or waived) the Trustee shall exercise such of the rights and powers
vested in it by this Indenture, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the circumstances
in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such Events
of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with
respect to the Securities of any series shall be determined solely by the
express provisions of this Indenture, and the Trustee shall not be liable except
for the performance of such duties and obligations as are specifically set forth
in this Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any statements, certificates
or opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such statements, certificates or opinions
which by any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the Trustee,
unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of Holders pursuant to Section 5.9 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.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there shall be reasonable ground for believing that the
repayment of such funds or adequate indemnity from the Issuer against such
liability is not reasonably assured to it.
SECTION 6.2 Certain Rights of the Trustee. Subject to Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any other
certificate, statement, instrument, opinion, report, notice, request, direction.
consent, order, bond, debenture, note, coupon, security or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) any request, direction, order or demand of the Issuer
mentioned herein shall be sufficiently evidenced by an Officers' Certificate
(unless other evidence in respect thereof be herein specifically prescribed),
and any Board Resolution of the Issuer may be evidenced to the Trustee by a copy
thereof certified by the secretary or assistant secretary of the Issuer;
(c) the Trustee may consult with counsel and any written advice or
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted to be taken by it hereunder
in good faith and in reliance thereon in accordance with such advice or Opinion
of Counsel;
(d) the Trustee shall be under no obligation to exercise any of
the trusts or powers vested in it by this Indenture at the request, order or
direction of any of the Securityholders pursuant to the provisions of this
Indenture, unless such Securityholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within the
discretion, rights or powers conferred upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all Events of Default, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by the
Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to
be incurred by it in the making of such investigation is, in the opinion of the
Trustee, not reasonably assured to the Trustee by the security afforded to it by
the terms of this Indenture, the Trustee may require reasonable indemnity
against such expenses or liabilities as a condition to proceeding; the
reasonable expenses of every such examination shall be paid by the Issuer or, if
paid by the Trustee or any predecessor trustee, shall be repaid by the Issuer
upon demand; and
(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 not regularly in its employ and the Trustee shall not be responsible
for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder.
SECTION 6.3 Trustee Not Responsible for Recitals, Disposition of
Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Issuer of any of the Securities or of the proceeds thereof.
SECTION 6.4 Trustee and Agents May Hold Securities or Coupons;
Collections, etc, The Trustee or any agent of the Issuer or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Securities
or Coupons with the same rights it would have if it were not the Trustee or such
agent and, subject to Section 6.12 and Section 310(b) of the Trust Indenture Act
of 1939 may otherwise deal with the Issuer and receive, collect, hold and retain
collections from the Issuer with the same rights it would have if it were not
the Trustee or such agent.
SECTION 6.5 Monies Held by Trustee. Subject to the provisions of Section
10.4 hereof, all monies 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
mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or
the Trustee shall be under any liability for interest on any monies received by
it hereunder.
SECTION 6.6 Compensation and Indemnification of Trustee and Its Prior
Claim. The Issuer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) and the Issuer covenants and agrees to pay or reimburse the
Trustee and each predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by or on behalf of it in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other Persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its negligence or bad faith.
The Issuer also covenants to indemnify the Trustee and each predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and its duties hereunder, including but not limited to the costs and expenses of
defending itself against or investigating any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder. The
obligations of the Issuer under this Section to compensate and indemnify the
Trustee and each predecessor Trustee and to pay or reimburse the Trustee and
each predecessor Trustee for expenses, disbursements and advances shall
constitute additional indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture. Such additional indebtedness shall be a senior
claim to that of the 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
or interest on particular Securities or Coupons, and the Securities are hereby
subordinated to such senior claim. When the Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 5.1 or in
connection with Article Five hereof, the expenses (including the reasonable fees
and expenses of its counsel) and the compensation for the services in connection
therewith are intended to constitute expenses of administration under any
bankruptcy law.
SECTION 6.7 Right of Trustee to Rely on Officers' Certificate, etc.
Subject to Sections 6.1 and 6.2, whenever in the administration of the trusts of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of negligence or bad faith on the
part of the Trustee, be deemed to be conclusively proved and established by an
Officers' Certificate delivered to the Trustee, and such certificate, in the
absence of negligence or bad faith on the part of the Trustee, shall be full
warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.8 Persons Eligible for Appointment as Trustee. The Trustee for
each series of Securities hereunder shall at all times be a corporation
organized and doing business under the laws of the United States of America or
of any State or the District of Columbia having a combined capital and surplus
of at least $50,000,000, and which is authorized under such laws to exercise
corporate trust powers and is subject to supervision or examination by Federal,
State or District of Columbia authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. At no time shall the Trustee be an obligor, or directly
or indirectly, control, be controlled by, or under the common control with any
obligor upon any Securities issued hereunder. In case at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Trustee shall resign immediately in the manner and with the effect specified
in Section 6.9.
The provisions of this Section 6.8 are in furtherance of and subject to
Section 310(a) of the Trust Indenture Act of 1939.
SECTION 6.9 Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any
time resign with respect to one or more or all series of Securities by giving
written notice of resignation to the Issuer. Upon receiving such notice of
resignation, the Issuer shall promptly appoint a successor trustee or trustees
with respect to the applicable series by written instrument in duplicate,
executed by authority of the Board of Directors of the Issuer, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee or trustees. If no successor trustee shall have been so
appointed with respect to any series and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning trustee may
petition any court of competent jurisdiction for the appointment of a successor
trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the
provisions of Section 5.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act of 1939 with respect to
any series of Securities after written request therefor by the Issuer or by any
Securityholder who has been a bona fide Holder of a Security or Securities for
at least six months; or
(ii) the Trustee shall cease to be eligible in accordance
with the provisions of Section 6.8 or Section 310(a) of the Trust Indenture Act
of 1939 and shall fail to resign after written request therefor by the Issuer or
by any such Securityholder; or
(iii) the Trustee shall become incapable of acting with
respect to any series of Securities, or shall be adjudged a bankrupt or
insolvent, or a receiver or liquidator of the Trustee or of its property shall
be appointed, or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation, conservation or
liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor trustee for such series
by written instrument, in duplicate, executed by order of the Board of Directors
of the Issuer, one copy of which instrument shall be delivered to the Trustee so
removed and one copy to the successor trustee, or, subject to the provisions of
Section 5.12, any Securityholder who has been a bona fide Holder of a Security
or Securities for at least six months may on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor trustee with respect to such
series. Such court may thereupon, after such notice, if any, as it may deem
proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove the
Trustee with respect to such series and appoint a successor trustee with respect
to such series by delivering to the Trustee so removed, to the successor trustee
so appointed and to the Issuer the evidence provided for in Section 7. 1 of the
action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any
series and any appointment of a successor trustee with respect to such series
pursuant to any of the provisions of this Section 6.9 shall become effective
upon acceptance of appointment by the successor trustee as provided in Section
6.10.
(e) The Issuer shall give notice of each resignation and each
removal of the Trustee of each series of Securities by mailing written notice of
such an event by first-class mail, postage prepaid, to the Holders of Registered
Securities of such series as their names and addresses appear in the Security
register. If any Unregistered Securities of a series affected are then
Outstanding, notice of such resignation shall be given to the Holders thereof,
(i) by publication at least once in an Authorized Newspaper in the Borough of
Manhattan, the City of New York, and at least once in an Authorized Newspaper
in London (and, if required by Section 3.7, at least once in an Authorized
Newspaper in Luxembourg) and (ii) by mailing notice to those Holders of
Unregistered Securities who have furnished their names and addresses to the
Trustee for such purpose within the two years preceding the giving of such
notice.
SECTION 6.10 Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 6.9 shall execute and deliver
to the Issuer and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations of its predecessor hereunder with respect to such
series, with like effect as if originally named as trustee for such series
hereunder; but, nevertheless, on the written request of the Issuer or of the
successor trustee, upon payment of its charges then unpaid, the trustee ceasing
to act shall, subject to Section 10.4, pay over to the successor trustee all
monies at the time held by it hereunder and shall execute and deliver an
instrument transferring to such successor trustee all such rights, powers,
duties and obligations. Upon request of any such successor trustee, the Issuer
shall execute any and all instruments in writing for more fully and certainly
vesting in and confirming to such successor trustee all such rights and powers.
Any trustee ceasing to act as such shall, nevertheless, retain a prior claim
upon all property or funds held or collected by it to secure any amounts then
due to it pursuant to the provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of one
or more (but not all) series, the Issuer, the predecessor Trustee and each
successor trustee with respect to the Securities of any applicable series shall
execute and deliver an indenture supplemental hereto which shall contain such
provisions as shall be deemed necessary or desirable to confirm that all the
rights, powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or
change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such trustees co-trustees of the same trust and that
each such trustee shall be trustee of a trust or trusts under separate
indentures.
No successor trustee with respect to any series of Securities shall accept
appointment as provided in this Section 6. 10 unless at the time of such
acceptance such successor trustee shall be qualified under the provisions of
Section 310(b) of the Trust Indenture Act of 1939 and eligible under the
provisions of Section 6.8 and Section 310(a) of the Trust Indenture Act of
1939.
Upon acceptance of appointment by a successor trustee for a series of
Securities as provided in this Section 6. 10, the Issuer shall (i) mail notice
thereof by first-class mail to the Holders of Registered Securities of such
series at their last addresses as they shall appear in the Security register, or
(ii) in the case of Holders of Unregistered Securities of such series, publish
such notice once in an Authorized Newspaper in the Borough of Manhattan, The
City of New York, and at least once in an Authorized Newspaper in London (and,
if required by Section 3.7, at least once in an Authorized Newspaper in
Luxembourg) and mail such notice to those Holders of Unregistered Securities of
such series who have filed their names and addresses with the Trustee for such
purpose within two years preceding the giving of such notice. Each such notice
shall include the name of the successor trustee for such series and the address
of the Corporate Trust Office. If the acceptance of appointment is
substantially contemporaneous with the resignation, then the notice called for
by the preceding sentence may be combined with the notice called for by Section
6.9. If the Issuer fails to provide such notice within 10 days after acceptance
of appointment by the successor trustee, the successor trustee shall cause such
notice to be provided at the expense of the Issuer.
SECTION 6.11 Merger, Conversion, Consolidation or Succession to
Business of Trustee. Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all of the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation shall be qualified under the
provisions of Section 310(b) of the Trust Indenture Act of 1939 and eligible
under the provisions of Section 6.8 and Section 310(a) of the Trust Indenture
Act of 1939, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture any of the Securities of any series 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 Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any successor to the
Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor trustee; and in all such cases such
certificate shall have the full force which it is anywhere in the Securities of
such series or in this Indenture provided that the certificate of the Trustee
shall have; provided, that the right to adopt the certificate of authentication
of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.12 Preferential Collection of Claims Against the Issuer.
If and when the Trustee shall be or become a creditor of the Issuer (or any
other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act of 1939 regarding the collection of claims
against the Issuer (or any such other obligor).
SECTION 6.13 Appointment of Authenticating Agent. As long as any
Securities of a series remain Outstanding, the Trustee may, by an instrument in
writing, appoint with the approval of the Issuer an authenticating agent (the
"Authenticating Agent") which shall be authorized to act on behalf of the
Trustee to authenticate Securities issued upon exchange, registration of
transfer, partial redemption or pursuant to Section 2.9. Securities of each
such series authenticated by such Authenticating Agent shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee. Whenever reference is made in this Indenture to
the authentication and delivery of Securities of any series by the Trustee or to
the Trustee's Certificate of Authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent for such series and a Certificate of Authentication
executed on behalf of the Trustee by such Authenticating Agent. Such
Authenticating Agent shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State,
authorized under such laws to exercise corporate trust powers, having a combined
capital and surplus of at least $5,000,000 (determined as provided in Section
6.9 with respect to the Trustee) and subject to supervision or examination by
Federal or State authority.
Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency business
of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such Authenticating Agent. Any Authenticating Agent may at any
time, and if it shall cease to be eligible shall, resign by giving written
notice of resignation to the Trustee and to the Issuer.
The Trustee may at any time terminate the agency of any Authenticating
Agent by giving written notice thereof to the Authenticating Agent and to the
Issuer. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section 6.13 with respect to one or more
series of Securities, the Trustee may upon receipt of a Company Order appoint a
successor Authenticating Agent which shall be acceptable to the Issuer and the
Issuer shall provide notice of such appointment to all Holders of Securities of
such series in the manner and to the extent provided in Section 11.4. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of its
predecessor hereunder, with like effect as if originally named as Authenticating
Agent. The Issuer agrees to pay to the Authenticating Agent for such series
from time to time reasonable compensation. The Authenticating Agent for the
Securities of any series shall have no responsibility or liability for any
action taken by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4 and, as agent of the Trustee, 7.3 shall be
applicable to any Authenticating Agent.
ARTICLE SEVEN
CONCERNING THE SECURITYHOLDERS
SECTION 7.1 Evidence of Action Taken by Securityholders. Any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Securityholders of any or all
series may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Securityholders in person or by agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of the
Trustee and the Issuer, if made in the manner provided in this Article.
SECTION 7.2 Proof of Execution of Instruments and of Holding of
Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument by
a Securityholder or his agent or proxy may be proved in the following manner:
(a) The fact and date of the execution by any Holder or his agent
or proxy of any instrument, or the authority of such an agent or proxy to
execute such instrument, may be proved by the certificate of any notary public
or other officer of any jurisdiction authorized to take acknowledgments of deeds
or administer oaths that the Person executing such instruments acknowledged to
him the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or other such officer. Where such execution is
by or on behalf of any legal entity other than an individual, such certificate
or affidavit shall also constitute sufficient proof of the authority of the
Person executing the same. The fact of the holding by any Holder of an
Unregistered Security of any series, and the identifying number of such Security
and the date of his holding the same, may be proved by the production of such
Security or by a certificate executed by any trust company, bank, or recognized
securities dealer wherever situated satisfactory to the Trustee, if such
certificate shall be deemed by the Trustee to be satisfactory. Each such
certificate shall be dated and shall state that on the date thereof a Security
of such series bearing a specified identifying number was deposited with or
exhibited to such trust company, bank, or recognized securities dealer by the
Person named in such certificate. Any such certificate may be issued in respect
of one or more Unregistered Securities of one or more series specified therein.
The holding by the Person named in any such certificate of any Unregistered
Securities of any series specified therein shall be presumed to continue for a
period of one year from the date of such certificate unless at the time of any
determination of such holding (1) another certificate bearing a later date
issued in respect of the same Securities shall be produced, or (2) the Security
of such series specified in such certificate shall be produced by some other
Person, or (3) the Security of such series specified in such certificate shall
have ceased to be Outstanding. Subject to Sections 6.1 and 6.2, the fact and
date of the execution of any such instrument and the amount and numbers of
Securities of any series held by the Person so executing such instrument and the
amount and numbers of any Security or Securities for such series may also be
proven in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee for such series or in any other manner which the
Trustee for such series may deem sufficient.
(b) In the case of Registered Securities, the ownership of such
Securities shall be proved by the Security register or by a certificate of the
Security Registrar.
SECTION 7.3 Holders to be Treated as Owners. Prior to surrender of a
Security for registration of transfer, the Issuer, the Trustee and any agent of
the Issuer, or the Trustee may deem and treat the Person in whose name any
Registered Security shall be registered upon the Security register as the
absolute owner of such Security (whether or not such Security shall be overdue
and notwithstanding any notation of ownership or other writing thereon) for the
purpose of receiving payment of or on account of the principal of and, subject
to the provisions of this Indenture, interest on such Security and for all other
purposes; and neither the Issuer, the Trustee nor any agent of the Issuer or the
Trustee shall be affected by any notice to the contrary. The Issuer, the
Trustee and any agent of the Issuer, or the Trustee may treat the Holder of any
Unregistered Security and the Holder of any Coupon as the absolute owner of such
Unregistered Security or Coupon (whether or not such Unregistered Security or
Coupon shall be overdue) for the purpose of receiving payment thereof or on
account thereof and for all other purposes and neither the Issuer, the Trustee
nor any agent of the Issuer, or the Trustee shall be affected by notice to the
contrary. All such payments so made to any such Person, 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 monies payable upon any such
Unregistered Security or Coupon.
SECTION 7.4 Securities Owned by Issuer Deemed Not Outstanding. In
determining whether the Holders of the requisite aggregate principal amount of
Outstanding Securities have concurred in any direction, consent or waiver under
this Indenture, Securities which are owned by the Issuer or any other obligor on
the Securities or by any Person directly or indirectly controlling or controlled
by or under direct or indirect common control with the Issuer or any other
obligor on the Securities shall be disregarded and deemed not to be Outstanding
for the purpose of any such determination, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver only Securities which the Trustee knows are so
owned shall be so disregarded. 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
Securities and that the pledgee is not the Issuer or any other obligor upon the
Securities or any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other obligor on
the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall
furnish to the Trustee promptly an Officers' Certificate listing and identifying
all Securities, if any, known by the Issuer to be owned or held by or for the
account of any of the above-described Persons; and, subject to Sections 6.1 and
6.2, the Trustee shall be entitled to accept such Officers' Certificate as
conclusive evidence of the facts therein set forth and of the fact that all
Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 Right of Revocation of Action Taken. At any time prior to
(but not after) the evidencing to the Trustee, as provided in Section 7.1, of
the taking of any action by the Holders of the percentage in aggregate principal
amount of the Securities of any or all series, as the case may be, specified in
this Indenture in connection with such action, any Holder of a Security the
serial number of which is shown by the evidence to be included among the serial
numbers of the Securities the Holders of which have consented to such action
may, by filing written notice at the Corporate Trust Office and upon proof of
holding as provided in this Article, revoke such action so far as concerns such
Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or
substitution therefor or on registration or transfer thereof, irrespective of
whether or not any notation in regard thereto is made upon any such Security.
Any action taken by the Holders of the percentage in aggregate principal amount
of the Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action shall be conclusively binding upon the
Issuer, the Trustee and the Holders of all the Securities.
SECTION 7.6 Record Date for Consents and Waivers. The Issuer may, but
shall not be obligated to, direct the Trustee to establish a record date for the
purpose of determining the Persons entitled to (i) waive any past Default with
respect to the Securities of such series in accordance with Section 5.10, (ii)
consent to any supplemental indenture in accordance with Section 8.2 of this
Indenture or (iii) waive compliance with any term, condition or provision of any
covenant hereunder (if this Indenture should expressly provide for such waiver).
If a record date is fixed, the Holders on such record date, or their duly
designated proxies, and any such Persons, shall be entitled to waive any such
past Default, consent to any such supplemental indenture or waive compliance
with any such term, condition or provision or revoke any such waiver or consent,
whether or not such Holder remains a Holder after such record date; provided,
however, that unless such waiver or consent is obtained from the Holders, or
duly designated proxies, of the requisite principal amount of Outstanding
Securities of such series prior to the date which is the 90th day after such
record date, any such waiver or consent previously given shall automatically and
without further action by any Holder be cancelled and of no further effect.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities of any series entitled to join
in the giving or making of any (i) notice of Default, (ii) declaration under
5.1, (iii) request to institute proceedings referred to in Section 5.6 or (iv)
direction referred to in Section 5.9, in each case with respect to Securities of
such series. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities of such series on such record date, and no other
Holders, shall be entitled to join in such notice, declaration, request or
direction or to revoke the same, whether or not such Holders remain Holders
after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable expiration date by Holders
of the requisite principal amount of Outstanding Securities of such series on
such record date. Nothing in this paragraph shall be construed to prevent the
Trustee from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be cancelled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities of the relevant series on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the Issuer's expense, shall cause notice of such record date, the proposed
action by Holders and the applicable expiration date to be given to the Issuer
in writing and to each Holder of Securities of the relevant series in the manner
set forth in Section 11.4.
ARTICLE EIGHT
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Securityholders.
The Issuer when authorized by Board Resolutions (which resolutions may provide
general terms or parameters for such action and may provide that the specific
terms of such action may be determined in accordance with or pursuant to a
Company Order) 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 of 1939 as in force at the date of the
execution thereof) for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee
as security for the Securities of one or more series any property or assets;
(b) to evidence the succession of another entity to the Issuer or
successive successions, and the assumption by the successor entity of the
respective covenants, agreements and obligations of the Issuer under this
Indenture or any supplemental indenture;
(c) to add to the covenants of the Issuer such further covenants,
restrictions, conditions or provisions or to surrender any right, power or
option conferred by this Indenture on the Issuer as its Board of Directors and
the Trustee shall consider to be for the protection or benefit of the Holders of
all or any series of Securities or Coupons of any series (and if such covenants
are to be for the benefit of less than all series of Securities, stating that
such covenants are being added solely for the benefit of such series), and to
make the occurrence, or the occurrence and continuance, of a Default in any such
additional covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth; 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 an Event of Default or may
limit the remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal amount of
the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any
provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any
supplemental indenture, or to make any other provisions in regard to matters or
questions under this Indenture or any supplemental indenture as the Issuer may
deem necessary or desirable, provided, that no action under this clause (d)
shall adversely affect the interests of the Holders of the Securities or
Coupons;
(e) to establish the form or terms of Securities of any series or
of the Coupons appertaining to such Securities as permitted by Sections 2.1 and
2.3;
(f) to make any change to comply with any requirement of the
Commission in connection with the qualification of the Indenture under the
Trust Indenture Act of 1939, as amended;
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one trustee, pursuant to the requirements of Section
6.10; and
(h) to provide for uncertificated Securities in addition to
certificated Securities, so long as such uncertificated Securities are in
registered form for United States federal income tax purposes.
The Trustee is hereby authorized to join with the Issuer 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, immunities or liabilities under
this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section
may be executed without the consent of the Holders of any of the Securities at
the time Outstanding, notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 Supplemental Indentures With Consent of Securityholders. With
the consent (evidenced as provided in Article Seven) of the Holders of not less
than a majority in aggregate principal amount of the Securities at the time
Outstanding of any series affected by such supplemental indenture, the Issuer,
when authorized by a Board Resolution or Resolutions (which Resolutions may
provide general terms or parameters for such action and may provide that the
specific terms of such action may be determined in accordance with or pursuant
to a Company Order) 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 of 1939 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 Securities of such series or of the Coupons appertaining to such
Securities; provided, that no such supplemental indenture shall (a) change the
final maturity of any Security or change the time for payment of any installment
of interest thereon, or reduce the principal amount thereof, or reduce the rate
(or alter the method of computation) of interest thereon, or reduce (or alter
the method of computation of) any amount payable on redemption or repayment
thereof or change the time for payment thereof, or make the principal thereof
(including any amount in respect of original issue discount), or interest
(together with any additional amounts payable with respect to, and pursuant to
the terms of, such Security) thereon payable in any coin or currency other than
that provided in the Securities and Coupons or in accordance with the terms
thereof, or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of the maturity
thereof pursuant to Section 5.1 or the amount thereof provable in bankruptcy
pursuant to Section 5.2, or alter the provisions of Section 11.11 or 11.12 or
impair or affect the right of any Securityholder to institute suit for the
payment thereof or, if the Securities provide therefor, any right of repayment
at the option of the Securityholder, in each case without the consent of the
Holder of each Security so affected, provided, no consent of any Holder of any
Security shall be necessary under this Section 8.2 to permit the Trustee and the
Issuer to execute supplemental indentures pursuant to Section 8.1(e) of this
Indenture, or (b) reduce the aforesaid percentage of principal amount of
Securities of any series the consent of the Holders of which is required for any
such supplemental indenture to less than a majority, or reduce the percentage of
Securities of such series necessary to consent to waive any past Default under
this Indenture to less than a majority, or modify any of the provisions of this
Section or Section 5.10, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or waived, in
each case, without the consent of the Holder of each Security so affected.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or of Coupons
appertaining to such Securities, or which modifies the rights of Holders of
Securities of such series with respect to such covenant or provision, shall be
deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series or of the Coupons appertaining to such
Securities.
Upon the request of the Issuer, accompanied by copies of Board Resolutions
of the Issuer (which resolutions may provide general terms or parameters for
such action and may provide that the specific terms of such action may be
determined in accordance with or pursuant to a Company Order) certified by the
secretary or an assistant secretary of the Issuer authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of
evidence of the consent of Securityholders and other documents, if any, required
by Section 7.1 the Trustee shall join with the Issuer in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties, immunities or liabilities 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.
It shall not be necessary for the consent of the Securityholders under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Promptly after the execution by the Issuer and the Trustee of any
supplemental indenture pursuant to the provisions of this Section, the Issuer
shall give notice thereof setting forth in general terms the substance of such
supplemental indenture, (i) to the Holders of the Outstanding Registered
Securities of each series affected thereby, by mailing a notice thereof by
first-class mail to such Holders at their addresses as they shall appear on the
security register, (ii) if any Unregistered Securities of a series affected
thereby are then Outstanding, to the Holders thereof who have filed their names
and addresses with the Trustee for such purpose within two years preceding the
giving of such notice, by mailing a notice thereof by first-class mail to such
Holders at such addresses as were so furnished to the Trustee and (iii) if any
Unregistered Securities of a series affected thereby are then Outstanding, to
all Holders thereof, by publication of a notice thereof at least once in an
Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London (and, if required by Section
3.7, at least once in an Authorized Newspaper in Luxembourg). Any failure of
the Issuer to give such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture.
SECTION 8.3 Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, 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 Issuer, and the Holders of Securities
of each series affected thereby shall thereafter be determined, exercised and
enforced hereunder subject in all respects to such modifications and amendments.
and all the terms and conditions of any such supplemental indenture shall be and
be deemed to be part of the terms and conditions of this Indenture for any and
all purposes.
SECTION 8.4 Documents to Be Given to Trustee. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, may receive an Officers' Certificate and an
Opinion of Counsel as conclusive evidence that any such supplemental indenture
executed pursuant to this Article Eight complies with the applicable provisions
of this Indenture and that the execution of such supplemental indenture is
authorized or permitted by this Indenture.
SECTION 8.5 Notation on Securities in Respect of Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a
notation in form approved by the Trustee for such series as to any matter
provided for by such supplemental indenture or as to any action taken by
Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Issuer, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Issuer, authenticated by the
Trustee and delivered in exchange for the Securities of such series then
Outstanding.
ARTICLE NINE
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 Covenant of the Issuer Not to Merge, Consolidate, Sell or
Convey Property Except Under Certain Conditions. The Issuer covenants that it
will not merge with or into or consolidate with any Person or sell, convey,
transfer, lease or otherwise dispose of all or substantially all of its assets
to any Person and the Issuer shall not permit any Person to consolidate with or
merge into the Issuer or sell, convey, transfer, lease or otherwise dispose of
all or substantially all of its assets to the Issuer, unless (i) either the
Issuer (in the case of a merger) shall be the continuing corporation, or the
successor entity or the Person which acquires by sale, conveyance, transfer,
lease or disposition all or substantially all of the assets of the Issuer (if
other than the Issuer) shall be a corporation, limited liability company or
partnership organized under the laws of the United States of America or any
State thereof or the District of Columbia, and shall expressly assume, by
supplemental indenture, in form satisfactory to the Trustee, executed and
delivered to the Trustee by such entity pursuant to Article Eight hereof, all of
the payment obligations of the Issuer pursuant to this Indenture and the
Securities of all series and Coupons, if any, appertaining thereto and the due
and punctual performance of every covenant of this Indenture on the part of the
Issuer to be performed or observed; and (ii) immediately after giving effect to
such merger, consolidation, sale, conveyance, transfer, lease or disposition and
treating any Debt which becomes an obligation of the Issuer as a result of such
transaction as having been incurred by the Issuer at the time of such
transaction, no Default or Event of Default shall have occurred and be
continuing.
SECTION 9.2 Successor Corporation Substituted. In case of any such
consolidation, merger, sale, conveyance, transfer, lease or disposition, and
following such an assumption by the successor entity, such successor entity
shall succeed to and be substituted for the Issuer, with the same effect as if
it had been named herein. Except in the case of conveyance by way of lease,
when the successor entity assumes all obligations of the Issuer hereunder and
the provisions of Section 9.1 have been complied with, all obligations and
covenants of the Issuer hereunder or under the Securities shall terminate.
Such successor entity may cause to be signed, and may issue either in its
own name or in the name of the Issuer prior to such succession any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Issuer and delivered to the Trustee; and, upon the order of such successor
entity, instead of the Issuer, and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Securities and Coupons appertaining thereto, if any, which
previously shall have been signed and delivered by the officers of the Issuer to
the Trustee for authentication, and any Securities together with any Coupons
appertaining thereto which such successor entity thereafter shall cause to be
signed and delivered to the Trustee for that purpose. All of the Securities so
issued together with any Coupons appertaining thereto shall in all respects have
the same legal rank and benefit under this Indenture as the Securities
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
In case of any such consolidation, merger, sale, conveyance, transfer,
lease or disposition such changes in phraseology and form (but not in substance)
may be made in the Securities and Coupons thereafter to be issued as may be
appropriate.
In the event of any sale, conveyance, transfer or disposition (other than
a conveyance by way of lease) covered by this Section 9.2, the Issuer (or any
successor entity which shall theretofore have become such in the manner
described in this Article) shall be discharged from all obligations and
covenants under this Indenture and the Securities and may be liquidated and
dissolved.
SECTION 9.3 Opinion of Counsel to Trustee. The Trustee, subject to the
provisions of Sections 6.1 and 6.2, may receive an Opinion of Counsel prepared
in accordance with Section 11.5 as conclusive evidence that any such
consolidation, merger, sale, transfer, lease, disposition or conveyance, and any
such assumption, and any such liquidation or dissolution complies with the
applicable provisions of this Indenture.
ARTICLE TEN
SATISFACTION AND DISCHARGE
OF INDENTURE; UNCLAIMED MONIES
SECTION 10.1 Satisfaction and Discharge of Indenture. (A) If at any
time (a) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any series Outstanding hereunder and all
unmatured Coupons appertaining thereto (other than any Securities of such series
and Coupons appertaining thereto which shall have been destroyed, lost or stolen
and which shall have been replaced or paid as provided in Section 2.9), as and
when the same shall have become due and payable, or (b) the Issuer shall have
delivered to the Trustee for cancellation all Securities of such series
theretofore authenticated and all unmatured Coupons appertaining thereto (other
than any Securities and Coupons appertaining thereto of such series which shall
have been destroyed, lost or stolen and which shall have been replaced or paid
as provided in Section 2.9) or (c) in the case of any series of Securities where
the exact or maximum amount (including the currency of payment) of principal of
and interest due on which can be determined at the time of making the deposit
referred to in clause (ii) below, (i) all the Securities of such series and all
unmatured Coupons appertaining thereto not theretofore delivered to the Trustee
for cancellation (x) shall have become due and payable or (y) 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 (ii) the Issuer shall have irrevocably deposited or
caused to be deposited with the Trustee as trust funds the amount identified in
subsection (x), (y) or (z) below (other than monies repaid by the Trustee or any
paying agent to the Issuer in accordance with Section 10.4), specifically
pledged as security for and dedicated solely to the benefit of the Holders of
the Securities of such series and Coupons appertaining thereto, (x) cash in an
amount or (y) in the case of any series of Securities the payments on which may
only be made in Dollars, direct obligations of the United States of America,
backed by its full faith and credit ("U.S. Government Obligations"), maturing as
to principal and interest at such times and in such amounts as will insure the
availability of cash not later than one day before the due date of payments in
respect of the Securities, or (z) a combination thereof, sufficient (without
investment of such cash or reinvestment of any interest or proceeds from such
U.S. Government Obligations) in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay the principal of and interest on all Securities
of such series and Coupons appertaining thereto on each date that such principal
or interest is due and payable (whether at maturity or through operation of a
mandatory sinking fund other than any redemption or repayment at the option of
the Holder); and if, in any such case, the Issuer shall also pay or cause to be
paid all other sums payable hereunder by the Issuer, all of the Securities of
such series and any Coupons appertaining thereto shall be deemed paid and
discharged and the provisions of this Indenture with respect to such Securities
and Coupons shall cease to be of further effect (except as to (i) rights of
registration of transfer, and exchange of Securities of such series or Coupons
appertaining thereto, and the Issuer's right of optional redemption, if any,
(ii) substitution of mutilated, defaced or apparently destroyed, lost or stolen
Securities or Coupons, (iii) rights of the Holders of Securities and Coupons
appertaining thereto to receive from the property so deposited payments of
principal thereof and interest on the original stated due dates therefor (but
not upon acceleration) or the Redemption Date or repayment date therefor, as the
case may be and remaining rights of Holders to receive mandatory sinking fund
payments, if any, (iv) the rights, obligations and immunities of the Trustee
hereunder, including any right to compensation, reimbursement of expenses and
indemnification under Section 6.6, (v) the rights of the Holders of Securities
of such series and Coupons appertaining thereto as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them and (vi) the obligations of the Issuer under Sections 3.2, 3.3 and 3.4),
and the Trustee, on demand of the Issuer accompanied by an Officers' Certificate
and an Opinion of Counsel, which complies with Section 11.5, stating that the
provisions of this Section have been complied with and at the cost and expense
of the Issuer, shall execute proper instruments acknowledging such satisfaction
of and discharging this Indenture; provided, that the rights of Holders of the
Securities and Coupons to receive amounts in respect of principal of and
interest on the Securities and Coupons held by them shall not be delayed longer
than required by then-applicable mandatory rules or policies of any securities
exchange upon which the Securities are listed. In addition, in connection with
the satisfaction and discharge pursuant to clause (c)(i)(y) above, the Trustee
shall give notice to the Holders of Securities of such satisfaction and
discharge. The Issuer agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Trustee for
any services thereafter reasonably and properly rendered by the Trustee in
connection with this Indenture or the Securities.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee under Section 6.6 shall survive.
(B) The following provisions shall apply to the Securities of each
series unless specifically otherwise provided in a Board Resolution of the
Issuer, Officers' Certificate or indenture supplemental hereto provided pursuant
to Section 2.3. In addition to discharge of the Indenture pursuant to Section
10.1(A), in the case of any such series of Securities the exact or maximum
amounts (including the currency of payment) of principal and interest due on
which can be determined at the time of making the deposit referred to in Clause
10.1(B)(x)(a) below: (x) the Issuer shall be deemed to have paid and discharged
the entire indebtedness on all Securities of such a series and the Coupons
appertaining thereto on the 91st day after the date of the deposit referred to
in Clause 10.1(B)(x)(a) below, and the provisions of this Indenture with respect
to the Securities of such series and Coupons appertaining thereto shall no
longer be in effect (except as to (i) rights of registration of transfer and
exchange of Securities of such series and Coupons appertaining thereto and the
Issuer's right of optional redemption, if any, (ii) substitution of mutilated,
defaced or apparently destroyed, lost or stolen Securities or Coupons, (iii)
rights of Holders of Securities or Coupons appertaining thereto to receive from
the property so deposited payments of principal thereof and interest thereon on
the original stated due dates therefor (but not on acceleration) or the
Redemption Date or repayment date therefor, as the case may be, and remaining
rights of the Holders to receive mandatory sinking fund payments, if any, (iv)
the rights, obligations, duties and immunities of the Trustee hereunder,
including any right to compensation, reimbursement of expenses and
indemnification under Section 6.6, (v) the rights of the Holders of Securities
of such series and Coupons appertaining thereto as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of
them and (vi) the obligations of the Issuer and the rights of the Holders of the
Securities under Sections 3.2, 3.3 and 3.4), (hereinafter "defeasance"), and the
Trustee, at the expense of the Issuer, shall at the Issuer's request, execute
proper instruments acknowledging the same, if the Issuer notifies the Trustee
that the provisions of this Section 10.1(B) are being complied with solely to
effect a defeasance and if
(a) with reference to this provision the Issuer has irrevocably
deposited or caused to be irrevocably deposited with the Trustee as trust funds
in trust for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the Holders of the
Securities of such series and Coupons appertaining thereto, (i) cash in an
amount, or (ii) in the case of any series of Securities the payments on which
may only be in Dollars, U.S. Government Obligations, maturing as to principal
and interest at such times and in such amounts as will insure (without
investment of such cash or reinvestment of any interest or proceeds from such
U.S. Government Obligations) the availability of cash or (iii) a combination
thereof, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay the principal of and interest on all Securities
of such series and Coupons appertaining thereto on each date that such principal
and interest is due and payable (whether at maturity or upon redemption (through
operation of a mandatory sinking fund or otherwise other than any redemption or
repayment at the option of the Holder);
(b) no Default or with respect to the Securities of such series
shall have occurred and be continuing on the date of such deposit or, insofar as
Sections 5.1(d) and (e) are concerned, at any time during the period ending on
and including the 91st day after the date of such deposit (it being understood
that this condition shall not be deemed satisfied until the expiration of such
period);
(c) such defeasance shall not cause the Trustee to have a
conflicting interest for purposes of the Trust Indenture Act of 1939 with
respect to any securities of the Issuer;
(d) such defeasance shall not result in a breach or violation of,
or constitute a Default under, this Indenture or any Securities of such series
or any other agreement or instrument to which the Issuer is a party or by
which it is bound;
(e) the Issuer has delivered to the Trustee an Opinion of Counsel
to the effect, and such opinion shall confirm, (i) that, based on the fact that
(x) the Issuer has received from, or there has been published by, the Internal
Revenue Service a ruling or (y) since the date hereof, there has been a change
in the applicable federal income tax law, in either case, to the effect that
Holders of the Securities of such series and the Coupons appertaining thereto
will not recognize income, gain or loss, other than with respect to the interest
earned on the amounts defeased, for federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to federal income tax
on the same amount and in the same manner and at the same times as would have
been the case if such deposit, defeasance and discharge had not occurred; and
(ii) that the trust arising from such deposit shall not constitute an
"investment company" or an entity "controlled" by an "investment company" as
such terms are defined in the Investment Company Act of 1940, as amended; and
(f) the Issuer has paid or caused to be paid all other sums then
payable hereunder by the Issuer and the Issuer has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent provided for relating to the defeasance contemplated by
this provision have been complied with.
(C) The Issuer shall be released from its obligations under Article
Nine and any other covenants specified pursuant to Section 2.3 with respect to
the Securities of any series and any Coupons appertaining thereto on and after
the date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"). For this purpose, such covenant defeasance means that, with
respect to the outstanding Securities of the applicable series, the Issuer may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in such Article or any such covenant, whether
directly or indirectly by reason of any reference elsewhere herein to such
Article or any such covenant or by reason of any reference in such Article to
any other provision herein or in any other document and such omission to comply
shall not constitute an Event of Default under Section 5.1, but the remainder of
this Indenture and such Securities and Coupons shall be unaffected thereby. The
following shall be the conditions to application of this subsection (C) of this
Section 10.1:
(a) the Issuer has irrevocably deposited or caused to be
irrevocably deposited with the Trustee as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Securities of such series
and Coupons appertaining thereto, (i) cash in an amount, or (ii) in the case of
any series of Securities the payment on which may only be made in Dollars, U.S.
Government Obligations maturing as to principal and interest at such times and
in such amounts as will insure (without investment of such cash or reinvestment
of any interest or proceeds from such U.S. Government Obligations) the
availability of cash in an amount or (iii) a combination thereof, sufficient, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
the principal and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal or interest is due and
payable (whether at maturity or upon redemption (through operation of a
mandatory sinking fund or otherwise, other than any redemption or repayment at
the option of the Holder);
(b) no Default or Event of Default or event which with notice or
lapse of time or both would become an Event of Default with respect to the
Securities shall have occurred and be continuing on the date of such deposit or,
insofar as subsections 5.1(d) and (e) are concerned, at any time during the
period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period);
(c) such covenant defeasance will not result in a breach or
violation of, or constitute a default under, this Indenture, or any Securities
issued hereunder or any agreement or instrument to which the Issuer is a party
or by which it is bound;
(d) such covenant defeasance shall not cause the Trustee to have a
conflicting interest as defined in Section 310(b) of the Trust Indenture Act
of 1939;
(e) such covenant defeasance shall not cause any Securities then
listed on any registered national securities exchange to be delisted;
(f) the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect (i) that the Holders of the Securities of such series and
Coupons appertaining thereto will not recognize income, gain or loss, other than
with respect to the interest earned on the amounts defeased, 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
(ii) that the trust arising from such deposit shall not constitute an
"investment company" or an entity "controlled" by an "investment company" as
such terms are defined in The Investment Company Act of 1940, as amended; and
(g) the Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the covenant defeasance contemplated by this provision
have been complied with.
SECTION 10.2 Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 10.4 all monies and securities deposited with
the Trustee pursuant to Section 10.1 shall be held in trust and applied by it to
the payment, either directly or through any paying agent (including the Issuer
acting as its own paying agent), to the Holders of the particular Securities of
such series and of Coupons appertaining thereto for the payment or redemption of
which such monies or securities have been deposited with the Trustee, of all
sums due and to become due thereon for principal and interest; but such monies
or securities need not be segregated from other funds except to the extent
required by law.
SECTION 10.3 Repayment of Monies Held by Paying Agent. In connection
with the satisfaction and discharge of this Indenture with respect to the
Securities of any series or the defeasance thereof, all monies then held by any
paying agent under the provisions of this Indenture with respect to such series
shall, upon demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with
respect to such monies.
SECTION 10.4 Return of Monies Held by Trustee and Paying Agent
Unclaimed for Two Years. Any monies or U.S. Government Obligations deposited
with or paid to the Trustee or any paying agent for the payment of the principal
of and interest on any Security of any series or Coupons attached thereto and
not applied but remaining unclaimed for two years after the date upon which such
principal and interest shall have become due and payable, shall, upon the
written request of the Issuer and unless otherwise required by mandatory
provisions of applicable escheat or abandoned or unclaimed property law, be
repaid to the Issuer by the Trustee for such series or such paying agent, and
the Holder of the Securities of such series and of any Coupons appertaining
thereto shall, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property laws, thereafter look only to the
Issuer for any payment which such Holder may be entitled to collect, and all
liability of the Trustee or any paying agent with respect to such monies shall
thereupon cease; provided, however, that the Trustee or such paying agent,
before being required to make any such repayment with respect to monies
deposited with it for any payment (a) in respect of Registered Securities of any
series, shall at the expense of the Issuer, mail by first class mail to Holders
of such Securities at their addresses as they shall appear on the Security
register, and (b) in respect of Unregistered Securities of any series the
Holders of which have filed their names and addresses with the Trustee for such
purpose within two years preceding the giving of such notice, shall at the
expense of the Issuer, mail by first class mail to such Holders at such
addresses, and (c) in respect of Unregistered Securities of any series, shall at
the expense of the Issuer cause to be published once, in an Authorized Newspaper
in the City of New York and once in an Authorized Newspaper in London (and, if
required by Section 3.7, at least once in an Authorized Newspaper in Luxembourg)
notice, that such monies remain unpaid and that, after a date specified therein,
which shall not be less than thirty days from the date of such mailing or
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuer.
SECTION 10.5 Indemnity for U.S. Government Obligations. The Issuer
shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to
Section 10.1 or the principal or interest received in respect of such
obligations.
ARTICLE ELEVEN
MISCELLANEOUS PROVISIONS
SECTION 11.1 Incorporators, Stockholders, Officers and Directors of
Issuer Exempt from Individual Liability. No recourse shall be had for the
payment of the principal of, or interest on any Security or any Coupon
appertaining thereto, for any claim based thereon, or otherwise in respect
thereof, or based on or in respect of this Indenture or any indenture supplement
thereto, against any incorporator, stockholder, officer or director, as such,
past, present or future, of the Issuer or any successor corporation, either
directly or through the Issuer, or any successor corporation, whether by virtue
of constitution, statute or rule of law or by the enforcement of any assessment
or penalty or otherwise, all such liability being, by the acceptance of such
Security and any Coupons appertaining thereto and as part of the consideration
for the issue thereof, expressly waived and released.
SECTION 11.2 Provisions of Indenture for the Sole Benefit of Parties
and Securityholders. Nothing in this Indenture or in the Securities or in
Coupons appertaining thereto, expressed or implied, shall give or be construed
to give to any Person, other than the parties hereto and their successors and
the Holders of the Securities or Coupons, if any, any legal or equitable right,
remedy or claim under this Indenture or under any covenant or provision herein
contained, all such covenants and provisions being for the sole benefit of the
parties hereto and their successors and the Holders of the Securities or
Coupons, if any.
SECTION 11.3 Successors and Assigns of Issuer Bound by Indenture.
All covenants and agreements in this Indenture by the Issuer shall bind its
successors and assigns (whether by merger, consolidation or otherwise), whether
so expressed or not.
SECTION 11.4 Notices and Demands on Issuer, the Trustee and
Securityholders. 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
of Securities or Coupons to or on the Issuer may be given or served by being
deposited postage prepaid, first-class mail (except as otherwise specifically
provided herein) addressed (until another address of the Issuer is filed by the
Issuer with the Trustee) to McMoRan Exploration Co., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary. Any notice,
direction, request or demand by the Issuer or any Securityholder to or upon the
Trustee shall be deemed to have been sufficiently given or made, for all
purposes, if given or made at the Corporate Trust Office, Attention: Corporate
Trustee Administration Department.
Where this Indenture provides for notice to Holders of Registered
Securities, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder entitled thereto, at his last address as it appears in the Security
register. Where this Indenture provides for notice to Holders of Unregistered
Securities, notice shall be (i) mailed to those Holders of Unregistered
Securities who have filed their names and addresses for this purpose with the
Trustee within the two preceding years of giving such notice, with such notice
being sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to each Holder entitled
thereto, at his last address as it appears in such filing and (ii) published at
least once in an Authorized Newspaper in the City of New York, and at least once
in an Authorized Newspaper in London (and, if required by Section 3.7, at least
once in an Authorized Newspaper in Luxembourg). In any case where notice to
such Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by
Holders shall be filed with the Trustee, but such filing shall not be a
condition precedent to the validity of any action taken in reliance upon such
waiver.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impracticable to mail notice to the Issuer and
Securityholders when such notice is required to be given pursuant to any
provision of this Indenture, then any manner of giving such notice as shall be
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
SECTION 11.5 Officers' Certificate and Opinions of Counsel,
Statements to Be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officers' Certificate
stating that all conditions precedent provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent have been
complied with, except that in the case of any such application or demand as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or demand, no
additional certificate or opinion need be furnished.
Except as provided in Sections 3.5 and 12.4, each certificate or opinion
provided for in this Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant provided for in this Indenture shall
include (a) a statement that the Person making such certificate or providing
such opinion has read such covenant or condition and the definitions relating
thereto, (b) 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, (c) a statement that, in the opinion of such
Person, he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with and (d) a statement as to whether or not, in
the opinion of such Person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be
based, insofar as it relates to legal matters, upon a certificate or opinion of
or representations by counsel, unless such officer knows that the certificate or
opinion or representations with respect to the matters upon which his
certificate, statement or opinion may be based as aforesaid are erroneous, or in
the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of
the Issuer upon the certificate, statement or opinion of or representations by
an officer or officers of the Issuer unless such counsel knows that the
certificate, statement or opinion or representations with respect to the matters
upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are
erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of
counsel may be based, insofar as it relates to accounting matters, upon a
certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants
filed with and directed to the Trustee shall contain a statement that such firm
is independent.
SECTION 11.6 Payments Due on Saturdays, Sundays and Holidays. If the
date of maturity of interest on or principal of the Securities of any series or
any Coupons appertaining thereto or the date fixed for redemption or repayment
of any Security shall not be a Business Day, then payment of interest or
principal need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption or repayment, and no interest shall accrue for
the period after such date.
SECTION 11.7 Conflict of Any Provision of Indenture with Trust
Indenture Act of 1939. If any provision hereof limits, qualifies or conflicts
with the duties imposed by any of Sections 310 through 317, inclusive, of the
Trust Indenture Act of 1939 or with another provision hereof which is required
to be included by any of Section 310 through 317, inclusive, or by operation of
Section 318(c) thereof, such duties and required provision shall control except
as, and to the extent, such provision is expressly excluded from this Indenture,
as permitted by the Trust Indenture Act of 1939.
SECTION 11.8 New York Law to Govern; Separability. This Indenture
and each Security shall each be deemed to be a contract under the laws of the
State of New York, and for all purposes shall be construed in accordance with
the laws of said State, except as may otherwise be required by mandatory
provisions of law.
In case any provision of this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected thereby.
SECTION 11.9 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.
SECTION 11.10 Effect of Headings. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
SECTION 11.11 Securities in a Foreign Currency or in ECU. Unless
otherwise specified in an Officers' Certificate delivered pursuant to Section
2.3 of this Indenture with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all
series or all series affected by a particular action at the time outstanding
and, at such time, there are Outstanding Securities of any series which are
denominated in a coin or currency other than Dollars (including ECUs), then the
principal amount of Securities of such series which shall be deemed to be
Outstanding for the purpose of taking such action shall be that amount of
Dollars that could be obtained for such amount at the Market Exchange Rate. For
purposes of this Section 11.11, Market Exchange Rate shall mean the noon Dollar
buying rate in New York City for cable transfers of that currency as published
by the Federal Reserve Bank of New York; provided, however, in the case of ECUs,
Market Exchange Rate shall mean the rate of exchange determined by the
Commission of the European Communities (or any successor thereto) as published
in the Official Journal of the European Communities (such publication or any
successor publication, the "Journal"). If such Market Exchange Rate is not
available for any reason with respect to such currency, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of the
Federal Reserve Bank of New York or, in the case of ECUs, the rate of exchange
as published in the Journal, as of the most recent available date, or quotations
or, in the case of ECUs, rates of exchange from one or more major banks in The
City of New York or in the country of issue of the currency in question, which
for purposes of the ECU shall be Brussels, Belgium, or such other quotations or,
in the case of ECU, rates of exchange as the Trustee shall deem appropriate.
The provisions of this paragraph shall apply in determining the equivalent
principal amount in respect of Securities of a series denominated in a currency
other than Dollars in connection with any action taken by Holders of Securities
pursuant to the terms of this Indenture including without limitation any
determination contemplated in Section 5.1(f) or (g).
All decisions and determinations of the Trustee regarding the Market
Exchange Rate or any alternative determination provided for in the preceding
paragraph shall be in its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
irrevocably binding upon the Issuer and all Holders.
SECTION 11.12 Judgment Currency. The Issuer agrees, to the fullest
extent it may effectively do so under applicable law, that (a) if for the
purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest on the Securities of any series
(the "Required Currency") into a currency in which a judgment will be rendered
(the "Judgment Currency"), the rate of exchange used shall be the rate at which
in accordance with normal banking procedures the Trustee could purchase in The
City of New York the Required Currency with the Judgment Currency on the day on
which final unappealable judgment is entered, unless such day is not a New York
Banking Day, then, to the extent permitted by applicable law, the rate of
exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required
Currency with the Judgment Currency on the New York Banking Day preceding the
day on which final unappealable judgment is entered and (b) its obligations
under this Indenture to make payments in the Required Currency (i) shall not be
discharged or satisfied by any tender, or any recovery pursuant to any judgment
(whether or not entered in accordance with subsection (a)), in any currency
other than the Required Currency, except to the extent that such tender or
recovery shall result in the actual receipt, by the payee, of the full amount of
the Required Currency expressed to be payable in respect of such payments, (ii)
shall be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by which such
actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or required by law or executive order to
close.
ARTICLE TWELVE
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 Applicability of Article. The provisions of this Article
shall be applicable to the Securities of any series which are redeemable before
their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.3 for
Securities of such series.
SECTION 12.2 Notice of Redemption. Notice of redemption to the
Holders of Registered Securities to be redeemed as a whole or in part at the
option of the Issuer shall be given in the manner provided in Section 11.4, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Securities. Notice of redemption to all Holders of
Unregistered Securities shall be published in an Authorized Newspaper in the
Borough of Manhattan, the City of New York and in an Authorized Newspaper in
London (and, if required by Section 3.7, in an Authorized Newspaper in
Luxembourg), in each case, once in each of three successive calendar weeks, the
first publication to be not less than 30 nor more than 60 days prior to the date
fixed for redemption. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice. Failure to give notice by mail, or any defect in
the notice to the Holder of any Security of a series designated for redemption
as a whole or in part, shall not affect the validity of the proceedings for the
redemption of any other Security of such series.
The notice of redemption to each such Holder shall specify the principal
amount of each Security of such series held by such Holder to be redeemed, the
Redemption Date, the applicable Redemption Price, and, if the Redemption Price
was required to be calculated according, or pursuant to a formula or by
reference to the value or price of any one or more commodities, currencies,
indices, instruments or other securities, the method for such calculation and
the basis for such Redemption Price, the place or places of payment, that
payment will be made upon presentation and surrender of such Securities and, in
the case of Securities with Coupons attached thereto, of all Coupons
appertaining thereto maturing after the date fixed for redemption, that such
redemption is pursuant to a mandatory or optional sinking fund, or both, if such
be the case, that interest accrued to the Redemption Date will be paid as
specified in said notice and that on and after said Redemption Date interest
thereon or on the portions thereof to be redeemed will cease to accrue. In case
any Security of a series is to be redeemed in part only the notice of redemption
shall state the portion of the principal amount thereof to be redeemed and shall
state that on and after the date fixed for redemption, upon surrender of such
Security, a new Security or Securities of such series in principal amount equal
to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the
option of the Issuer shall be given by the Issuer or, at the Issuer's request,
by the Trustee in the name and at the expense of the Issuer.
At least one Business Day prior to the Redemption Date specified in the
notice of redemption given as provided in this Section, the Issuer will deposit
with the Trustee or with one or more paying agents (or, if the Issuer is acting
as its own paying agent, set aside, segregate and hold in trust as provided in
Section 3.4) an amount of money sufficient to redeem on the Redemption Date all
the Securities of such series to be redeemed at the appropriate Redemption
Price, together with accrued interest to and including the Redemption Date. If
less than all Securities of any series are to be redeemed, the Issuer will
deliver to the Trustee at least 70 days prior to the Redemption Date an
Officers' Certificate stating the aggregate principal amount of Securities to be
redeemed. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption or subject to compliance with
conditions precedent, the Issuer shall deliver to the Trustee, prior to the
giving of any notice of redemption to Holders pursuant to this Section, an
Officers' Certificate stating that such restriction or condition has been
complied with.
If less than all the Securities of a series are to be redeemed, the
Trustee shall select, in such manner as it shall deem appropriate and fair,
Securities of such series to be redeemed in whole or in part. Securities may be
redeemed in part in multiples equal to the minimum authorized denomination for
Securities of such series or any multiple thereof. The Trustee shall promptly
notify the Issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series selected for
partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities of any series shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed. In case of a redemption at the election of the Issuer prior to the
expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant
to this Section, an Officers' Certificate stating that such restriction has
been complied with.
SECTION 12.3 Payment of Securities Called for Redemption. If notice
of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the
Redemption Date and at the place stated in such notice at the applicable
Redemption Price, together with interest accrued to and including the Redemption
Date, and on and after said Redemption Date (unless the Issuer shall default in
the payment of such Securities at the Redemption Price, together with interest
accrued to said Redemption Date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue, and the unmatured
Coupons, if any, appertaining thereto shall be void, and such Securities shall
cease from and after the Redemption Date to be entitled to any benefit or
security under this Indenture, and the Holders thereof shall have no right in
respect of such Securities to be redeemed except the right to receive the
applicable Redemption Price thereof and unpaid interest to and including the
Redemption Date. On surrender of such Securities at a place of payment
specified in said notice, together with all Coupons, if any, appertaining
thereto maturing after the Redemption Date, such Securities or the specified
portions thereof shall be paid and redeemed by the Issuer at the applicable
Redemption Price, together with interest accrued thereon, to and including the
Redemption Date; provided that any payment of interest becoming due on or prior
to the Redemption Date shall be payable in the case of Securities with Coupons
attached thereto, to the Holders of the Coupons for such interest upon surrender
thereof, and in the case of Registered Securities, registered as such on the
relevant Regular Record Date subject to the terms and provisions of Sections 2.3
and 2.7 hereof.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid or duly provided for,
bear interest from the Redemption Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in such
Security.
If any Security with Coupons attached thereto is surrendered for
redemption and is not accompanied by all appurtenant Coupons maturing after the
date fixed for redemption, the surrender of such missing Coupon or Coupons may
be waived by the Issuer and the Trustee, if there be furnished to each of them
such security or indemnity as they may require to save each of them harmless.
Upon surrender of any Security redeemed in part only, the Issuer shall
execute and the Trustee shall authenticate and deliver to or on the order of the
Holder thereof, at the expense of the Issuer, a new Security or Securities for
such series, of authorized denominations, in principal amount equal to the
unredeemed portion of the Security so prescribed.
SECTION 12.4 Exclusion of Certain Securities From Eligibility for
Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officers' Certificate of the Issuer delivered to the Trustee at
least 45 days prior to the last date on which notice of redemption may be given
as being owned of record and beneficially by, and not pledged or hypothecated by
either (a) the Issuer or (b) an entity specifically identified in such written
statement as directly or indirectly controlling or controlled by or under direct
or indirect common control with the Issuer.
SECTION 12.5 Mandatory and Optional Sinking Funds. The minimum
amount of any sinking fund payment provided for by the terms of the Securities
of any series is herein referred to as a "mandatory sinking fund payment", and
any payment in excess of such minimum amount provided for by the terms of the
Securities of any series is herein referred to as an "optional sinking fund
payment". The date on which a sinking fund payment is to be made is herein
referred to as the "sinking fund payment date".
In lieu of making all or any part of any mandatory sinking fund payment
with respect to any series of Securities in cash, the Issuer may at its option
(a) deliver to the Trustee Securities of such series theretofore purchased or
otherwise acquired (except upon redemption pursuant to the mandatory sinking
fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant
to Section 2.10, (b) receive credit for optional sinking fund payments (not
previously so credited) made pursuant to this Section, or (c) receive credit for
Securities of such series (not previously so credited) redeemed by the Issuer
through any optional redemption provision contained in the terms of such series.
Securities so delivered or credited shall be received or credited by the Trustee
at the sinking fund redemption price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment date
for any series, the Issuer will deliver to the Trustee an Officers' Certificate
(which need not contain the statements required by Section 11.5) (a) specifying
the portion of the mandatory sinking fund payment to be satisfied by payment of
cash and the portion to be satisfied by credit of Securities of such series and
the basis for such credit, (b) stating that none of the Securities of such
series to be so credited has theretofore been so credited, (c) stating that no
defaults in the payment of interest or Events of Default with respect to such
series have occurred (which have not been waived or cured) and are continuing
and (d) stating whether or not the Issuer intends to exercise its right to make
an optional sinking fund payment with respect to such series and, if so,
specifying the amount of such optional sinking fund payment which the Issuer
intends to pay on or before the next succeeding sinking fund payment date. Any
Securities of such series to be credited and required to be delivered to the
Trustee in order for the Issuer to be entitled to credit therefor as aforesaid
which have not theretofore been delivered to the Trustee shall be delivered for
cancellation pursuant to Section 2.10 to the Trustee with such Officers'
Certificate (or reasonably promptly thereafter if acceptable to the Trustee).
Such Officers' Certificate shall be irrevocable and upon its receipt by the
Trustee the Issuer shall become unconditionally obligated to make all the cash
payments or payments therein referred to, if any, on or before the next
succeeding sinking fund payment date. Failure of the Issuer, on or before any
such 60th day, to deliver or cause to be delivered such Officers' Certificate
and Securities (subject to the parenthetical clause in the second preceding
sentence) specified in this paragraph, if any, shall not constitute a default
but shall constitute, on and as of such date, the irrevocable election of the
Issuer (i) that the mandatory sinking fund payment for such series due on the
next succeeding sinking fund payment date shall be paid entirely in cash without
the option to deliver or credit Securities of such series in respect thereof and
(ii) that the Issuer will make no optional sinking fund payment with respect to
such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to
be made in cash on the next succeeding sinking fund payment date plus any unused
balance of any preceding sinking fund payments made in cash shall exceed $50,000
(or the equivalent thereof in any Foreign Currency or ECU) or a lesser sum in
Dollars (or the equivalent thereof in any Foreign Currency or ECU) if the Issuer
shall so request with respect to the Securities of any particular series, such
cash shall be applied on the next succeeding sinking fund payment date to the
redemption of Securities of such series at the sinking fund redemption price
together with accrued interest to the date fixed for redemption. If such amount
shall be $50,000 (or the equivalent thereof in any Foreign Currency or ECU) or
less and the Issuer makes no such request then it shall be carried over until a
sum in excess of $50,000 (or the equivalent thereof in any Foreign Currency or
ECU) is available. The Trustee shall select, in the manner provided in Section
12.2 and subject to the limitations in Section 12.4, for redemption on such
sinking fund payment date a sufficient principal amount of Securities of such
series to absorb said cash, as nearly as may be practicable, and shall (if
requested in writing by the Issuer) inform the Issuer of the serial numbers of
the Securities of such series (or portions thereof) so selected. The Trustee,
in the name and at the expense of the Issuer (or the Issuer, if it shall so
request the Trustee in writing) shall cause notice of redemption of the
Securities of such series to be given in substantially the manner provided in
Section 12.2 (and with the effect provided in Section 12.3) for the redemption
of Securities of such series in part at the option of the Issuer. The amount of
any sinking fund payments not so applied or allocated to the redemption of
Securities of such series shall be added to the next cash sinking fund payment
for such series and, together with such payment, shall be applied in accordance
with the provisions of this Section. Any and all sinking fund monies held on
the stated maturity date of the Securities of any particular series (or earlier,
if such maturity is accelerated), which are not held for the payment or
redemption of particular Securities of such series shall be applied, together
with other monies, if necessary, sufficient for the purpose, to the payment of
the principal of, and interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to the
Trustee in cash or shall otherwise provide for the payment of all interest
accrued to the date fixed for redemption on Securities to be redeemed on the
next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a
series with sinking fund monies or give any notice of redemption of Securities
for such series by operation of the sinking fund during the continuance of a
default in payment of interest on such Securities or of any Event of Default
except that, where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed
such Securities, provided that it shall have received from the Issuer a sum
sufficient for such redemption. Except as aforesaid, any monies in the sinking
fund for such series at the time when any such default or Event of Default shall
occur, and any monies thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been
collected under Article Five and held for the payment of all such Securities.
In case such Event of Default shall have been waived as provided in Section 5.10
or the default cured on or before the sixtieth day preceding the sinking fund
payment date in any year, such monies shall thereafter be applied on the next
succeeding sinking fund payment date in accordance with this Section to the
redemption of such Securities.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of ______________________, 2000.
McMoRan EXPLORATION CO.
By:
Name:
Title:
[CORPORATE SEAL]
Attest:
By:
Name:
Title:
____________________________, as Trustee
By:
Name:
Title:
[CORPORATE SEAL OF TRUSTEE]
Attest:
By:
Name:
Title
STATE OF LOUISIANA
PARISH OF ORLEANS
On this _____ day of _________________, 2000 before me personally came
_________________, to me personally known, who, being by me duly sworn, did
depose and say that he resides at ______________; that he is a
______________________ of McMoRan Exploration Co., one of the corporations
described in and which executed the above instrument; that he knows the
corporate seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
[NOTARIAL SEAL]
______________________________
Notary Public
STATE OF NEW YORK
COUNTY OF NEW YORK
On this _____ day of _____________________, 2000, before me personally
came _______________, to me personally known, who, being by me duly sworn, did
depose and say that he resides at _________________; that he is a _____________
of ________________, one of the corporations described in and which executed the
above instrument; that he knows the corporate seal of said corporation; that the
seal affixed to said instrument is such corporate seal; that it was so affixed
by authority of the Board of Directors of said corporation, and that he signed
his name thereto by like authority.
[NOTARIAL SEAL]
___________________________
Notary Public