---------------------------------------------------------------
---------------------------------------------------------------
FOREST OIL CORPORATION
and
-------------------, as Trustee
--------------------
SUBORDINATED INDENTURE
Dated as of ---------------
--------------------
Subordinated Debt Securities
---------------------------------------------------------------
---------------------------------------------------------------
CROSS-REFERENCE TABLE
Indenture
TIA Section Section
---------
SECTION 310 (a)(1) ............................. 8.10
(a)(2) ............................. 8.10
(a)(3) ............................. N.A.
(a)(4) ............................. N.A.
(a)(5) ............................. 8.08
(b) ................................ 8.08; 8.10; 11.02
(c) ................................ N.A.
SECTION 311 (a) ................................ 8.11
(b) ................................ 8.11
(c) ................................ N.A.
SECTION 312 (a) ................................ 2.06
(b) ................................ 11.03
(c) ................................ 11.03
SECTION 313 (a) ................................ 8.06
(b)(1) ............................. N.A.
(b)(2) ............................. 8.06
(c) ................................ 8.06; 11.02
(d) ................................ 8.06
SECTION 314 (a) ................................ 5.05; 11.02
(b) ................................ N.A.
(c)(1) ............................. 11.04
(c)(2) ............................. 11.04
(c)(3) ............................. N.A.
(d) ................................ N.A.
(e) ................................ 11.05
(f) ................................ N.A.
SECTION 315 (a) ................................ 8.01(b)
(b) ................................ 8.05; 11.02
(c) ................................ 8.01(a)
(d) ................................ 8.01(c)
(e) ................................ 7.11
SECTION 316 (a)(last sentence) ................. 2.10
(a)(1)(A) .......................... 7.05
(a)(1)(B) .......................... 7.04
(a)(2) ............................. N.A.
(b) ................................ 7.07
(c) ................................ 10.04
SECTION 317 (a)(1) ............................. 7.08
(a)(2) ............................. 7.09
(b) ................................ 2.05
SECTION 318 (a) ................................ 11.01
--------------------
N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to
be a part of this Indenture.
TABLE OF CONTENTS
Page
----
RECITALS OF THE COMPANY ............................................. 1
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions .................................... 1
SECTION 1.02. Incorporation by Reference of Trust
Indenture Act ................................ 8
SECTION 1.03. Rules of Construction .......................... 9
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form of Securities ............................. 9
SECTION 2.02. Title and Terms ................................ 10
SECTION 2.03. Execution and Authentication ................... 14
SECTION 2.04. Registrar, Paying Agent and Conversion
Agent ........................................ 17
SECTION 2.05. Paying Agent to Hold Money in Trust............. 17
SECTION 2.06. Securityholder Lists ........................... 18
SECTION 2.07. Transfer and Exchange .......................... 18
SECTION 2.08. Replacement Securities ......................... 21
SECTION 2.09. Outstanding Securities ......................... 22
SECTION 2.10. Treasury Securities ............................ 22
SECTION 2.11. Temporary Securities ........................... 22
SECTION 2.12. Cancellation ................................... 22
SECTION 2.13. Defaulted Interest ............................. 22
SECTION 2.14. Persons Deemed Owners .......................... 23
ARTICLE 3
REDEMPTION
SECTION 3.01. Right of Redemption ............................ 23
SECTION 3.02. Applicability of Article ....................... 24
SECTION 3.03. Election to Redeem; Notice to Trustee........... 24
SECTION 3.04. Selection by Trustee of Securities to be
Redeemed ..................................... 24
SECTION 3.05. Notice of Redemption ........................... 25
SECTION 3.06. Deposit of Redemption Price .................... 26
SECTION 3.07. Securities Payable on Redemption Date .......... 26
SECTION 3.08. Securities Redeemed in Part .................... 27
-i-
Page
----
ARTICLE 4
SINKING FUND
SECTION 4.01. Sinking Fund Payments .......................... 28
SECTION 4.02. Satisfaction of Sinking Fund Payments with
Securities ................................... 28
SECTION 4.03. Redemption of Securities for Sinking Fund ...... 29
ARTICLE 5
COVENANTS
SECTION 5.01. Payment of Securities .......................... 29
SECTION 5.02. Maintenance of Office or Agency ................ 30
SECTION 5.03. Corporate Existence ............................ 30
SECTION 5.04. Compliance Certificate ......................... 31
SECTION 5.05. SEC Reports .................................... 31
SECTION 5.06. Waiver of Stay, Extension or Usury Laws ........ 32
ARTICLE 6
SUCCESSOR CORPORATION
SECTION 6.01. When Company May Merge, etc. ................... 32
SECTION 6.02. Successor Corporation Substituted .............. 33
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 7.01. Events of Default .............................. 33
SECTION 7.02. Acceleration ................................... 35
SECTION 7.03. Other Remedies ................................. 36
SECTION 7.04. Waiver of Past Defaults ........................ 36
SECTION 7.05. Control by Majority ............................ 37
SECTION 7.06. Limitation on Suits ............................ 37
SECTION 7.07. Rights of Holders to Receive Payment ........... 38
SECTION 7.08. Collection Suit by Trustee ..................... 38
SECTION 7.09. Trustee May File Proofs of Claim ............... 38
SECTION 7.10. Priorities ..................................... 39
SECTION 7.11. Undertaking for Costs .......................... 39
ARTICLE 8
TRUSTEE
SECTION 8.01. Duties of Trustee .............................. 40
SECTION 8.02. Rights of Trustee .............................. 41
SECTION 8.03. Individual Rights of Trustee ................... 42
-ii-
Page
----
SECTION 8.04. Trustee's Disclaimer ........................... 42
SECTION 8.05. Notice of Defaults ............................. 43
SECTION 8.06. Reports by Trustee to Holders .................. 43
SECTION 8.07. Compensation and Indemnity ..................... 43
SECTION 8.08. Replacement of Trustee ......................... 44
SECTION 8.09. Successor Trustee by Merger, etc. .............. 45
SECTION 8.10. Eligibility; Disqualification .................. 45
SECTION 8.11. Preferential Collection of Claims Against
Company ...................................... 46
ARTICLE 9
DISCHARGE OF INDENTURE
SECTION 9.01. Termination of Company's Obligations ........... 46
SECTION 9.02. Application of Trust Money ..................... 48
SECTION 9.03. Repayment to Company ........................... 48
SECTION 9.04. Reinstatement .................................. 48
SECTION 9.05. Indemnity for U.S. Government Obligations ...... 49
ARTICLE 10
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders ..................... 49
SECTION 10.02. With Consent of Holders ........................ 50
SECTION 10.03. Compliance With Trust Indenture Act............. 51
SECTION 10.04. Revocation and Effect of Consents .............. 51
SECTION 10.05. Notation on or Exchange of Securities .......... 52
SECTION 10.06. Trustee to Sign Amendments, etc. ............... 52
SECTION 10.07 Subordination Unimpaired ....................... 53
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls ................... 53
SECTION 11.02. Notices ........................................ 53
SECTION 11.03. Communications by Holders with Other
Holders ...................................... 54
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent .................................... 54
SECTION 11.05. Statements Required in Certificate or
Opinion ...................................... 54
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar ...... 55
SECTION 11.07. Legal Holidays ................................. 55
SECTION 11.08. Governing Law .................................. 55
-iii-
Page
----
SECTION 11.09. No Adverse Interpretation of Other
Agreements ................................... 55
SECTION 11.10. No Recourse Against Others ..................... 56
SECTION 11.11. Successors ..................................... 56
SECTION 11.12. Duplicate Originals ............................ 56
SECTION 11.13. Separability ................................... 56
SECTION 11.14. Action of Holders When Securities Are
Denominated in Different Currencies .......... 56
SECTION 11.15. Monies of Different Currencies to be
Segregated ................................... 57
SECTION 11.16. Payment to be in Proper Currency ............... 57
ARTICLE 12
CONVERSION OF SECURITIES
SECTION 12.01. Applicability of Article ....................... 58
SECTION 12.02. Exercise of Conversion Privilege ............... 58
SECTION 12.03. Fractional Interests ........................... 59
SECTION 12.04. Adjustment of Conversion Price ................. 60
SECTION 12.05. Continuation of Conversion Privilege in
Case of Merger, Consolidation or Sale
of Assets .................................... 64
SECTION 12.06. Notice of Certain Events ....................... 65
SECTION 12.07. Taxes on Conversion ............................ 66
SECTION 12.08. Company to Provide Stock ....................... 67
SECTION 12.09. Disclaimer of Responsibility for Certain
Matters ...................................... 67
SECTION 12.10. Return of Funds Deposited for Redemption
of Converted Securities ...................... 68
ARTICLE 13
SUBORDINATION
SECTION 13.01. Securities Subordinated to Senior
Indebtedness ................................. 68
SECTION 13.02. Reliance on Certificate of Liquidating
Agent; Further Evidence as to Ownership
of Senior Indebtedness ....................... 72
SECTION 13.03. Payment Permitted If No Default ................ 73
SECTION 13.04. Disputes with Holders of Certain Senior
Indebtedness ................................. 73
SECTION 13.05. Trustee Not Charged with Knowledge of
Prohibition .................................. 73
SECTION 13.06. Trustee to Effectuate Subordination............. 74
-iv-
Page
----
SECTION 13.07. Rights of Trustee as Holder of Senior
Indebtedness ................................. 74
SECTION 13.08. Article Applicable to Paying Agents............. 75
SECTION 13.09. Subordination Rights Not Impaired by Acts
or Omissions of the Company or Holders
of Senior Indebtedness ....................... 75
SECTION 13.10. Trustee Not Fiduciary for Holders of
Senior Indebtedness .......................... 75
TESTIMONIUM ......................................................... 77
SIGNATURES .......................................................... 77
EXHIBIT A -- Form of Security
--------------------
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a
part of this Indenture.
-v-
SUBORDINATED INDENTURE, dated as of ________________, 199_,
between Forest Oil Corporation, a New York corporation (the "Company"), and
_______________________, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
subordinated notes, debentures or other evidences of indebtedness
(collectively, the "Securities"), to be issued from time to time in one or
more series (a "Series") as provided in this Indenture and as shall be
provided, in respect of any Series, in or pursuant to the Authorizing
Resolution hereinafter referred to and/or in the indenture supplemental
hereto (if any) relating to such Series.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Affiliate" of any specified person means any other person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person. For the purposes of
this definition, "control" when used with respect to any person means the
power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agent" means any Registrar, Paying Agent, co-Registrar or
Conversion Agent.
"Authorizing Resolution" means a Board Resolution providing for
the issuance of a Series of Securities.
"Bankruptcy Law" shall have the meaning provided in Section
7.01.
"Blockage Period" shall have the meaning provided in
Section 13.01.
"Board of Directors" means the Board of Directors of the
Company or any duly authorized committee of the Board.
-2-
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee (except as provided in
Section 2.03).
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means, with respect to any person, any and all
shares, interests, participations or other equivalents (however designated)
of corporate stock of such person other than Mandatory Redemption Preferred
Stock.
"Capitalized Lease Obligation" means Indebtedness represented
by obligations under a lease that is required to be capitalized for
financial reporting purposes in accordance with generally accepted
accounting principles.
"Common Stock" means the common stock, par value $.10 per
share, of the Company, as the same exists at the date of execution and
delivery of this Indenture, or other Capital Stock of the Company into
which such common stock is reclassified or changed from time to time.
"Company" means the party named as such in this Indenture until
a successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by two Officers
of the Company or by an Officer and the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, and delivered to the Trustee in
respect of the Series to which the Company Request or Company Order shall
relate.
"Consolidated Subsidiary" means a Subsidiary which for
financial reporting purposes is accounted for by the Company as a
consolidated subsidiary.
"Conversion Agent" shall have the meaning provided in
Section 2.04.
"Conversion Price" shall have the meaning provided in
Section 12.04.
-3-
"Corporate Trust Office" or other similar term means the
principal office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at the date
hereof is located at , ; the Trustee
will notify the Company of any change thereof.
"Custodian" shall have the meaning provided in Section 7.01.
"Date of Conversion" shall have the meaning provided in
Section 12.02.
"Default" means any event which is, or after notice or passage
of time or both would become, an Event of Default.
"Default Notice" shall have the meaning provided in
Section 13.01.
"Depository" means, with respect to the Securities of any
Series issuable or issued in the form of one or more Global Securities, the
Person designated as Depository by the Company pursuant to Section 2.02,
initially The Depository Trust Company, until a successor Depository shall
have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depository" shall mean or include each person who is then a
Depository hereunder, and, if at any time there is more than one such
person, "Depository" as used with respect to the Securities of any such
Series shall mean the Depository with respect to the Global Securities of
such Series.
"Event of Default" shall have the meaning provided in
Section 7.01.
"Extendible Securities" means Securities of any Series issued
hereunder the final maturity of which is extendible for a stated period of
time, as shall be provided in, or pursuant to, the Authorizing Resolution
and/or supplemental indenture (if any) relating to such Series.
"Global Security" means a Security evidencing all or a part of
a Series of Securities issued to and registered in the name of the
Depository for such Series, or its nominee, in accordance with Section 2.02,
and bearing the legend prescribed in Section 2.03.
-4-
"Holder" or "Securityholder" means, with respect to any
Security, the person in whose name such Security is registered on the
Security Register.
"Indebtedness" means (i) any liability of any person (a) for
borrowed money, (b) evidenced by a note, debenture or similar instrument
(including a purchase money obligation) given in connection with the
acquisition of any property or assets (other than inventory or similar
property acquired in the ordinary course of business), including securities,
or (c) for the payment of money relating to a Capitalized Lease Obligation;
(ii) any guarantee by any person of any liability of others described in the
preceding clause (i); and (iii) any amendment, renewal, extension or
refunding of any liability of the types referred to in clauses (i) and (ii)
above.
"Indenture" means this Indenture as amended or supplemented
from time to time and shall include the forms and terms of particular
Series of Securities established as contemplated hereunder.
"Interest Payment Date" means, for any Series of Securities
issued and outstanding hereunder, the date or dates in each year on which
any interest on such Series is paid or made available for payment.
"Last Sale Price" shall have the meaning provided in
Section 12.03.
"Legal Holiday" shall have the meaning provided in Section 11.07.
"Maturity" when used with respect to any Security means the
date on which the principal of such Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Maturity Date" means the date specified in each Security on
which the principal thereof is due and payable in full.
"Officer" means the Principal Executive Officer, Principal
Financial Officer or Principal Accounting Officer of the Company.
-5-
"Officers' Certificate" means a certificate signed by two
Officers or by an Officer and the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee. See Sections 11.04 and 11.05.
"Opinion of Counsel" means a written opinion from legal counsel
who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company. See Sections 11.04 and 11.05.
"Original Issue Date" means the date on which a Security is
issued to the original purchaser thereof, as specified in such Security.
"Original Issue Discount Securities" means Securities which
provide for an amount less than 100% of the principal amount thereof to be
due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 7.02.
"Paying Agent" shall have the meaning provided in Section 2.04,
except that for the purposes of Article 9 the Paying Agent shall not be the
Company or any Subsidiary.
"person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision
thereof.
"principal" of a debt security means the principal of the
security plus, when appropriate, the premium, if any, on the security.
"Redeemable Securities" means Securities of any Series which
may be redeemed, at the option of the Company, prior to the Stated Maturity
thereof, on the terms specified in or pursuant to the Authorizing
Resolution and/or supplemental indenture relating to such Series and in
accordance with Article 3 herein.
"Redemption Date" when used with respect to any Security of any
Series to be redeemed means the date fixed for such redemption by or
pursuant to the provisions of such Security, this Indenture and the
Authorizing Resolution and/or supplemental indenture relating to such
Security.
-6-
"Redemption Price" when used with respect to any Security of
any Series to be redeemed means the price at which it is to be redeemed
pursuant to the provisions of such Security, this Indenture and the
Authorizing Resolution and/or supplemental indenture relating to such
Security.
"Registrar" shall have the meaning provided in Section 2.04.
"Regular Record Date" means, for the interest payable on any
Interest Payment Date in respect of any Series of Securities, except as
provided in, or pursuant to, the Authorizing Resolution and/or supplemental
indenture (if any) relating thereto, the day (whether or not a Business
Day) that is fifteen days preceding the applicable Interest Payment Date.
"Representative" shall have the meaning provided in
Section 13.01.
"Required Currency" shall have the meaning provided in Section
11.16.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Securities, as amended or supplemented
from time to time pursuant to the terms of this Indenture, of the Company of
any Series that are issued under this Indenture.
"Security Register" shall have the meaning provided in
Section 2.04.
"Senior Indebtedness" means Indebtedness of the Company, whether
outstanding on the date of issue of any Securities or thereafter created,
incurred, assumed or guaranteed by the Company, other than the following:
(i) any Indebtedness as to which, by the terms of the instrument creating or
evidencing such Indebtedness, it is expressly provided that such Indebtedness
is subordinated in right of payment to all Indebtedness of the Company not
expressly subordinated to such Indebtedness, (ii) any Indebtedness which, by
its terms, expressly refers to the Securities and states that such
Indebtedness shall not be senior, shall be PARI PASSU or shall be
subordinated in right of payment to the Securities and (iii) Securities of
the same or another Series.
-7-
"Series" means, with respect to Securities issued hereunder,
the Securities issued pursuant to any particular Authorizing Resolution
and/or supplemental indenture (if any), subject to the right of the Board
of Directors to specify in such Authorizing Resolution and/or supplemental
indenture (if any) that such Securities shall constitute more than one
Series.
"Sinking Fund" means, with respect to any Sinking Fund
Securities, a sinking fund provided for in Article 3B.
"Sinking Fund Securities" means Securities of any Series which
are required to be redeemed from time to time prior to the Stated Maturity
thereof in whole or in part under a Sinking Fund, on the terms specified in
the Authorizing Resolution and/or supplemental indenture (if any) relating
to such Series and in accordance with Article 4 herein.
"Special Record Date" shall have the meaning provided in
Section 2.13.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon means the date specified in such Security
as the fixed date on which the principal of such Security or such
installment of interest is due and payable.
"Subsidiary" means (i) a corporation a majority of whose Capital
Stock with voting power, under ordinary circumstances, to elect directors is
at the time, directly or indirectly, owned by the Company, by the Company and
a Subsidiary (or Subsidiaries) of the Company or by a Subsidiary (or
Subsidiaries) of the Company or (ii) any other person (other than a
corporation) in which the Company, a Subsidiary (or Subsidiaries) of the
Company or the Company and a Subsidiary (or Subsidiaries) of the Company,
directly or indirectly, at the date of determination thereof has at least
majority ownership interest; PROVIDED, that no corporation shall be deemed a
Subsidiary until the Company, a Subsidiary (or Subsidiaries) of the Company
or the Company and a Subsidiary (or Subsidiaries) of the Company acquires
more than 50% of the outstanding voting stock thereof and has elected a
majority of its board of directors.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date of this Indenture except as
provided in Sections 10.03 and 12.05.
-8-
"Trading Day" shall have the meaning provided in Section 12.03.
"Trustee" means the party named as such in this Indenture until
a successor replaces it in accordance with the provisions of this Indenture
and thereafter means and includes the person or 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 Securities of that Series.
"Trust Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters.
"U.S. Government Obligations" shall have the meaning provided
in Section 9.01.
"Yield to Maturity" means, with respect to any Series of
Securities, the yield to maturity thereof, calculated at the time of
issuance thereof, or, if applicable, at the most recent redetermination of
interest thereon, and calculated in accordance with accepted financial
practice.
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
-9-
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule
and not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles in effect in the United States on the date hereof, and any
other reference in this Indenture to "generally accepted accounting
principles" refers to generally accepted accounting principles in
effect in the United States on the date hereof;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof," "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(7) "include," "included" and "including" as used herein shall
be deemed in each case to be followed by the phrase "without
limitation."
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM OF SECURITIES.
The Securities of each Series and the certificate of
authentication thereon shall be in substantially the forms set forth in
Exhibit A or in such other forms as shall be specified in, or pursuant to,
the Authorizing Resolution and/or in the indenture supplemental hereto (if
any) relating to such Series,
-10-
with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or the said
Authorizing Resolution and/or supplemental indenture (if any).
The definitive Securities of each Series shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by
the rules of any securities exchange on which the Securities may be listed,
or, if they shall not be listed on any securities exchange, in any other
manner consistent herewith, all as shall be determined by the officers
executing such Securities, as evidenced by their execution of such
Securities. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage. The Company shall approve the
form of the Securities and any notation, legend or endorsement on them.
The terms and provisions contained in the Securities, annexed
hereto as Exhibit A or such other forms as specified in the Authorizing
Resolution and/or supplemental indenture (if any) relating thereto, shall
constitute, and are hereby expressly made, a part of this Indenture.
SECTION 2.02. TITLE AND TERMS.
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. All
Securities issued hereunder shall be subordinate and junior in right of
payment, to the extent and in the manner set forth in Article 13, to all
Senior Indebtedness of the Company. The terms of each Series shall be as
provided in an Authorizing Resolution and/or supplemental indenture (if any)
or shall be determined in the manner specified therein. The terms to be
specified in respect of each Series in the Authorizing Resolution and/or
supplemental indenture (if any), or by such person and/or procedures as shall
be provided therein, shall include the following:
(1) the title of the Securities of such Series, which shall
distinguish such Series from all other Series;
(2) Whether the Securities will be convertible into Common
Stock and, if so, the terms and conditions upon
-11-
which such conversion will be effected including the initial Conversion
Price and any adjustments thereto in addition to or different from those
set forth in Section 11, the conversion period and other provisions in
addition to or in lieu of those set forth herein;
(3) any limit upon the aggregate principal amount of the
Securities of such Series which may be authenticated and delivered
under this Indenture (except for Securities of such Series
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to
Section 2.07, 2.08, 2.11, 3.08, 10.05 or 12.02);
(4) the date or dates on which the principal of the Securities
of such Series is payable, and, if the Series shall be Extendible
Securities, the terms on which the Company or any other person shall
have the option to extend the Maturity of such Securities and the
rights, if any, of the Holders to require payment of the Securities;
(5) the rate or rates at which the Securities of such Series
shall bear interest, if any (whether floating or fixed), the
provisions, if any, for determining such interest rate or rates and
adjustments thereto, the date or dates from which such interest shall
accrue, the provisions, if any, for determining such date or dates,
the Interest Payment Dates therefor, the Regular Record Dates (if
different from those provided in the form of Security herein set
forth) for the determination of Holders of the Securities of such
Series to whom interest is payable and the basis upon which interest,
if any, shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(6) the place or places where the principal of and interest on
Securities of such Series shall be payable (if other than as provided
in Section 5.02), where Securities of such Series may be surrendered
for registration of transfer or exchange and where notices or demands
to or upon the Company in respect of Securities of such Series and
this Indenture may be served;
(7) the price or prices at which, the period or periods within
which and the terms and conditions upon which the Securities of such
Series may be redeemed, in
-12-
whole or in part, at the option of the Company, pursuant to a Sinking Fund
or otherwise;
(8) the obligation, if any, of the Company to redeem, purchase
or repay Securities of such Series, in whole or in part, pursuant to
a Sinking Fund or otherwise or at the option of a Holder thereof, and
the price or prices at which, the period or periods within which and
the terms and conditions upon which such redemption, purchase or
repayment shall be made;
(9) any deletions from, modifications of or additions to the
Events of Default provided for herein with respect to the Securities
of such Series, and any additions to the covenants or obligations
provided for herein of the Company to the Holders of the Securities
of such Series;
(10) if less than 100% of the principal amount of the
Securities of such Series is payable on acceleration under
Section 7.02 or in bankruptcy under Section 7.09 at any time, a
schedule of or the manner of computing the amounts which are so
payable from time to time;
(11) the form of the Securities of such Series (which may be,
but which need not be, consistent with the form set forth in
Exhibit A attached hereto), including whether the Securities of such
Series shall be issued in whole or in part in the form of one or more
Global Securities and, in such case, the Depository with respect to
such Global Security or Securities and the circumstances under which
any Global Security may be registered for transfer or exchange, or
authenticated and delivered, in the name of a Person other than such
Depository or its nominee, if other than as set forth in Section
2.07;
(12) if other than United States dollars, the currency(ies) in
which payment of the principal of or interest, if any, on the
Securities of such Series shall be payable;
(13) if the principal of or interest, if any, on the
Securities of such Series is to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies other than
that in which the Securities are stated to be payable, the period or
periods within which,
-13-
and the terms and conditions upon which, such election may be made;
(14) if the amount of payments of principal of or interest, if
any, on such Securities of the Series may be determined with
reference to an index based on a currency or currencies other than
that in which the Securities are stated to be payable, the manner in
which such amounts shall be determined;
(15) whether and under what circumstances the Company will pay
any additional amounts on the Securities of such Series in respect of
any tax, assessment or governmental charge and, if so, whether the
Company will have the option to redeem the Securities of such Series
in lieu of making such payment;
(16) any provisions relating to the issuance of the Securities
of any Series as Original Issue Discount Securities (including,
without limitation, the issue price thereof, the rate or rates at
which such original issue discount shall accrue, if any, and the date
or dates from or to which, or period or periods during which, such
original issue discount shall accrue at such rate or rates);
(17) if other than denominations of $1,000 and integral
multiples thereof, the denominations in which Securities of any such
Series shall be issued; and
(18) any other terms of the Securities of such Series;
PROVIDED, that such other terms shall not be inconsistent with any
express terms of this Indenture or in conflict with any express terms
of any other Series of Securities which shall be issued and
outstanding.
All Securities of any one Series shall be substantially
identical in form except as to denomination and except as may be otherwise
provided in and pursuant to the Authorizing Resolutions and/or supplemental
indenture (if any) relating thereto.
All Securities of any one Series need not be issued at the same
time and may be issued from time to time, consistent with this Indenture,
if so provided by or pursuant to such Authorizing Resolution and/or
supplemental indenture (if any) relating thereto.
-14-
Any such Authorizing Resolution with respect to the Securities of
any Series filed with the Trustee on or before the initial issuance of the
Securities of such Series shall be incorporated herein by reference with
respect to Securities of such Series and shall thereafter be deemed to be a
part of this Indenture for all purposes relating to the Securities of such
Series as if such Authorizing Resolution were set forth herein in full.
SECTION 2.03. EXECUTION AND AUTHENTICATION.
Two Officers or an Officer and the Secretary of the Company shall
sign the Securities for the Company by manual or facsimile signature. The
Company's seal shall be reproduced on the Securities and may be in facsimile
form.
If an Officer or a Secretary whose signature is on a Security no
longer holds that office at the time the Trustee authenticates the Security,
the Security shall be valid nevertheless.
A Security shall not be valid until the Trustee manually signs
the certificate of authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any Series
executed by the Company to the Trustee, together with a Company Order for the
authentication and delivery of such Securities. The Company Order may
provide that the Securities which are the subject thereof shall be
authenticated and delivered by the Trustee upon the telephonic, written or
other order of persons designated in the Company Order, and that such persons
are authorized to specify the terms and conditions of such Securities, to the
extent permitted by the Authorizing Resolution and/or supplemental indenture
(if any) relating thereto. The Trustee shall execute and deliver the
supplemental indenture (if any) relating to said Securities and the Trustee
shall authenticate and deliver said Securities as specified in such Company
Order; PROVIDED that, prior to authentication and delivery of the first
Securities of any Series, the Trustee shall have received:
(1) a copy of the Authorizing Resolution, with a copy of the
form of Security approved thereby attached
-15-
thereto, or a supplemental indenture in respect of the issuance of the
Series, executed on behalf of the Company;
(2) an Officers' Certificate to the effect that the Securities
of such Series comply or will comply with the requirements of this
Indenture and the said Authorizing Resolution and/or supplemental
indenture (if any);
(3) an Opinion of Counsel (a) to the effect that (i) the
Securities of such Series, the Authorizing Resolution and/or the
supplemental indenture (if any) relating thereto comply or will
comply with the requirements of this Indenture, and (ii) the
Securities of such Series, when authenticated and delivered by the
Trustee in accordance with the said Company Order, will constitute
valid and binding obligations of the Company enforceable in
accordance with their terms, subject to (A) bankruptcy and other laws
affecting creditors' rights generally as in effect from time to time,
(B) limitations of generally applicable equitable principles and
(C) other exceptions acceptable to the Trustee and its counsel; and
(b) relating to such other matters as may reasonably be requested by
the Trustee or its counsel; and
(4) if the Securities to be issued are Original Issue Discount
Securities, an Officers' Certificate setting forth the Yield to
Maturity for the Securities or other information sufficient to
compute amounts due on acceleration, or specifying the manner in
which such amounts are to be determined, provided that such Yield to
Maturity and other facts are not specified in the form of the
Securities.
Subject to Section 8.01 hereof, the Trustee shall be fully
protected in relying upon the documents delivered to it as provided above in
connection with the issuance of any Series of Securities.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section 2.03 if the Trustee, being advised
by counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith by a committee of its Trust Officers shall determine
that such action would expose the Trustee to liability to Holders of
previously issued and outstanding Securities.
-16-
Each Security shall be dated the date of its authentication
unless otherwise specified in the Authorizing Resolution and/or
supplemental indenture relating thereto.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities. An authenticating
agent may authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights
as an Agent to deal with the Company or an Affiliate of the Company.
The Securities of each Series shall be issuable only in
registered form without coupons and only in denominations of $1,000 and any
integral multiple thereof, or in such other currencies or denominations as
may be specified in, or pursuant to, the Authorizing Resolution and/or
supplemental indenture (if any) relating to the Series.
If Securities of any Series are to be issued in the form of one
or more Global Securities, then the Company shall deliver such Global
Security or Securities executed by the Company to the Trustee, together with
a Company Order for the authentication and delivery of such Global Security
or Securities, and the Trustee shall, in accordance with this Section 2.03
and such Company Order, authenticate and deliver such Global Security or
Securities that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of all of the Securities of such
Series to be issued in the form of such Global Security or Securities and not
yet cancelled, (ii) shall be registered in the name of the Depository for
such Global Security or Securities or the nominee of such Depository, (iii)
shall be delivered by the Trustee to such Depository or pursuant to such
Depository's instructions and (iv) shall bear a legend substantially to the
following effect: "Unless and until this Security is exchanged in whole or
in part for Securities in certificated form, this Security may not be
transferred except as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or its nominee to a successor
Depository or its nominee."
Each Depository designated must, at the time of its designation
and at all times while it serves as Depository, be a clearing agency
registered under the Securities Exchange Act
-17-
of 1934, as amended, and any other applicable statute or regulation.
SECTION 2.04. REGISTRAR, PAYING AGENT AND CONVERSION AGENT.
The Company shall cause to be kept a register (the "Security
Register") at an office or agency where Securities may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency
where Securities may be presented for payment ("Paying Agent"), and, if
applicable, an office or agency where Securities may be presented for
conversion ("Conversion Agent"). The Company may have one or more
co-Registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall give prompt written notice to the Trustee of the name and
address of any such Agent and the Trustee shall have the right to inspect
the Security Register at all reasonable times and to obtain copies thereof.
If the Registrar shall not be the Trustee in respect of any Series, the
Company shall promptly notify the Registrar as to the amounts and terms of
each Security of such Series which shall be authenticated and delivered
hereunder, and as to the names in which such Securities shall be
registered. If the Company fails to maintain a Registrar, Paying Agent or
Conversion Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.07.
The Company initially appoints the Trustee as Registrar, Paying
Agent and Conversion Agent.
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST.
Each Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Securities (whether such money
has been paid to it by the Company or any other obligor on the Securities),
and shall notify the Trustee of any default by the Company (or any other
obligor on the Securities) in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate the money and hold it
as a separate trust fund. The Company at any time
-18-
may require a Paying Agent to pay all money held by it to the Trustee
and account for any funds disbursed and the Trustee may at any time
during the continuance of any payment default, upon written request to
a Paying Agent, require such Paying Agent to pay all money held by it
to the Trustee and to account for any funds disbursed. Upon doing so
the Paying Agent shall have no further liability for the money.
SECTION 2.06. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list furnished to it of the names
and addresses of Securityholders. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee ten days before each Interest Payment
Date and at such other times as the Trustee may request in writing a list
in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Holders of Securities of any Series and the
Company shall otherwise comply with Section 312(a) of the TIA.
The Trustee shall be entitled to rely upon a certificate of the
Registrar, the Company or such other Paying Agent, as the case may be, as
to the names and addresses of the Holders of Securities of any Series and
the principal amounts and serial numbers of such Securities.
SECTION 2.07. TRANSFER AND EXCHANGE.
When Securities are presented to the Registrar or a co-Registrar
with a request to register the transfer or to exchange them for an equal
principal amount of Securities of the same Series and Stated Maturity of
other authorized denominations, the Registrar shall register the transfer or
make the exchange as requested if its requirements for such transactions are
met. To permit registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Securities at the Registrar's
request. No service charge shall be made to any Holder for any registration
of transfer or exchange, but the Company or the Trustee may require payment
of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchanges pursuant to Section 2.11,
3.08 or 10.05 in which case such transfer taxes or similar governmental
charges shall be paid by the Company).
-19-
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security of any Series during a period beginning
at the opening of the day which is 15 Business Days before the day of the
mailing of a notice of redemption of Securities of such Series selected for
redemption under Section 3.04 or 4.01 and ending at the close of business on
the day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except, in the case
of any Security to be redeemed in part, the portion thereof not to be
redeemed.
Notwithstanding any other provision of this Section 2.07, unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or part of the Securities
of a Series may not be transferred except as a whole by the Depository for
such Series to a nominee of such Depository or by a nominee of such
Depository to such Depository or another nominee of such Depository or by
such Depository or any such nominee to a successor Depository for such Series
or a nominee of such successor Depository.
If at any time the Depository for any Securities of a Series
represented by one or more Global Securities notifies the Company that it is
unwilling or unable to continue as Depository for such Series or if at any
time the Depository for such Series shall no longer be eligible under Section
2.03, the Company shall appoint a successor Depository with respect to such
Series. If a successor Depository for such Series is not appointed by the
Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company's election that the Securities be
represented by one or more Global Securities pursuant to Section 2.02 shall
no longer be effective and the Company shall deliver Securities of such
Series executed by the Company to the Trustee, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee
shall, in accordance with Section 2.03 and such Company Order, authenticate
and deliver Securities of such Series, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such Series in exchange for such Global
Security or Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any Series issued in the form of one or
more Global Securities shall no longer be represented by a Global Security
or Securities. In such event the
-20-
Company shall deliver Securities of such Series executed by the Company to
the Trustee, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, in accordance with
Section 2.03 and such Company Order, authenticate and deliver Securities of
such Series, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such Series, in exchange for such Global Security or Securities.
If specified by the Company in the Authorizing Resolution and/or
supplemental indenture (if any) relating to the Securities of a Series
represented by a Global Security, the Depository for such Series may
surrender such Global Security in exchange in whole or in part for Securities
of the same Series on such terms as are acceptable to the Company and the
Depository. Thereupon, the Company shall deliver Securities of such Series
executed by the Company to the Trustee, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee shall, in
accordance with Section 2.03 and such Company Order, authenticate and
deliver, without charge,
(1) to the person specified by such Depository, a new Security
or Securities of the same Series, in 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 Global
Security; and
(2) to such Depository a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities authenticated and delivered pursuant to clause (1) above.
Upon the exchange of a Global Security for the Securities of a
Series represented thereby, in authorized denominations, such Global
Security shall be cancelled by the Trustee or an Agent of the Company or
the Trustee. Securities of a Series issued in exchange for a Global
Security pursuant to this Section 2.07 shall be registered in such names
and in such authorized denominations as the Depository for such Global
Security, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee or an Agent of the Company or the
Trustee. The Trustee or such Agent shall deliver at its office such
Securities to or as directed
-21-
by the persons in whose names such Securities are so registered.
SECTION 2.08. REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate
a replacement Security of like tenor, Series and principal amount, bearing a
number not assigned to any Security of the same Series then outstanding, if
the Trustee's requirements are met. If required by the Trustee or the
Company, an indemnity bond must be sufficient in the judgment of the Trustee
to protect the Company, the Trustee or any Agent from any loss which any of
them may suffer if a Security is replaced. The Company may charge such
Holder for its expenses in replacing a Security.
Every replacement Security is an additional obligations of the
Company.
SECTION 2.09. OUTSTANDING SECURITIES.
Securities, or Securities of any particular Series, outstanding
at any time are all such Securities that have been authenticated and
delivered by the Trustee except for those cancelled by it, those delivered to
it for cancellation and those described in this Section as not outstanding.
A Security does not cease to be outstanding because the Company or one of its
Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.08, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Trustee or Paying Agent (other than the Company or a
Subsidiary) holds on the Maturity Date or Redemption Date money sufficient to
pay Securities payable on such date, then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue;
PROVIDED that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provisions
therefor satisfactory to the Trustee have been made.
-22-
If a Security is converted into Common Stock pursuant to
Article 12 hereof, then such Security shall cease to be outstanding.
SECTION 2.10. TREASURY SECURITIES.
In determining whether the Holders of the required principal
amount of Securities of any Series have concurred in any direction, waiver or
consent (a) the principal amount of an Original Issue Discount Security, if
any, of such Series that shall be deemed to be outstanding for such purposes
shall be the amount that would be due and payable as of the date of
determination upon a declaration of acceleration thereof pursuant to Section
7.02 and (b) Securities of such Series owned by the Company or an Affiliate
of the Company shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities of such Series which the
Trustee actually knows are so owned shall be so disregarded. Upon the
request of the Trustee, the Company shall furnish to the Trustee an Officers'
Certificate identifying all Securities of such Series, if any, known by the
Company to be owned by it or any of its Affiliates.
SECTION 2.11. TEMPORARY SECURITIES.
Until definitive Securities of any Series are ready for delivery,
the Company may prepare and execute and, upon compliance with the
requirements of Section 2.03, the Trustee shall authenticate temporary
Securities of such Series. Temporary Securities of any Series shall be
substantially in the form of definitive Securities of such Series but may
have variations that the Company considers appropriate for temporary
Securities. In the case of Securities of any Series, such temporary
Securities may be in global form. Except in the case of temporary Global
Securities (which shall be exchanged as otherwise provided herein or as
otherwise provided in or pursuant to the Authorizing Resolution and/or
supplemental indenture (if any) relating thereto, without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate definitive
Securities for such Series in exchange for temporary Securities of such
Series in an exchange pursuant to Section 2.07.
SECTION 2.12. CANCELLATION.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent
-23-
shall forward to the Trustee any Securities surrendered to them for transfer,
exchange or payment. The Trustee and no one else shall cancel all Securities
surrendered for transfer, exchange, payment or cancellation or for credit
against any Sinking Fund Payment in respect of such Series pursuant to
Section 4.02. The Company may not issue new Securities to replace Securities
it has paid or delivered to the Trustee for cancellation.
SECTION 2.13. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the
Securities of any Series, it shall pay the defaulted interest, plus any
interest payable on the defaulted interest, to the persons who are Holders of
such Securities on a subsequent special record date ("Special Record Date")
and such term, as used in this Section 2.13 with respect to the payment of
any defaulted interest, shall mean the fifteenth day next preceding the date
fixed by the Company for the payment of defaulted interest, whether or not
such day is a Business Day. At least 15 days before the Special Record Date,
the Company shall mail to each holder of such Securities a notice that states
the Special Record Date, the payment date and the amount of defaulted
interest to be paid.
SECTION 2.14. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent may treat the persons in
whose name any Security is registered as the owners of such Security for the
purpose of receiving payment of principal of and (subject to Section 2.13)
interest on such Security and for all other purposes whatsoever, whether or
not such Security shall have matured, and neither the Company, the Trustee
nor any Agent shall be affected by any notice to the contrary.
ARTICLE 3
REDEMPTION
SECTION 3.01. RIGHT OF REDEMPTION.
Redeemable Securities may be redeemed otherwise than through
the operation of the Sinking Fund provided for in Article 4 at the election
of the Company at the times, on the conditions and at the Redemption Prices
specified therein, in (or pursuant to) the Authorizing Resolution relating
thereto or in the supplemental indenture (if any) executed in connection
-24-
with the issuance of such Securities to the extent provided therein, any
Redemption Price to be accompanied by accrued interest to the Redemption
Date.
SECTION 3.02. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision referred to in
Section 3.01, shall be made in accordance with such provision and this
Article.
SECTION 3.03. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The Election of the Company to redeem any Securities of any
Series shall be evidenced by a Board Resolution or set forth in an Officers'
Certificate which states that such election has been duly authorized by all
requisite corporate action on the part of the Company. In case of any
redemption at the election of the Company of less than all of the Securities
of such Series the Company shall, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date and of the principal
amount of Securities of the Series or the several Series, as the case may be,
to be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 3.04. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any Series are to be redeemed,
the particular Securities of such Series to be redeemed shall be selected not
more than 90 days prior to the Redemption Date by the Trustee, from the
outstanding Securities of such Series not previously called for redemption,
in compliance with the requirements of the principal national securities
exchange, if any, on which such Securities are listed or, if the Securities
are not listed on a national securities exchange, on a PRO RATA basis or by
lot, as the Trustee deems appropriate in its sole discretion. The Trustee may
select for redemption portions (equal to the minimum authorized denomination
of the Series or any integral multiple thereof) of the principal amount of
such Securities of a denomination larger
-25-
than such minimum denomination. If the Company shall so specify, Securities
held by the Company or any of its Subsidiaries or Affiliates shall not be
included in the Securities selected for redemption.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities 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.
If any Security selected for partial redemption is surrendered
for conversion after such selection, the converted portion of such Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Upon any redemption of less than all the Securities of a Series, for
purposes of selection for redemption the Company and the Trustee may treat
outstanding Securities surrendered for conversion during the period of 15
days next preceding the mailing of a notice of redemption, and need not treat
as outstanding any Security authenticated and delivered during such period in
exchange for the unconverted portion of any Security converted in part during
such period.
SECTION 3.05. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all outstanding Securities of the Series are
to be redeemed, the identification (and, in the
-26-
case of partial redemption, the principal amount) of the particular
Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security, and that interest
thereon shall cease to accrue on and after said date;
(5) that the redemption is for a Sinking Fund, if such is the
case;
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price; and
(7) if applicable, the Conversion Price then in effect and the
date on which the right to convert such Securities or the portions
thereof to be redeemed will expire.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name of and at the expense of the Company.
SECTION 3.06. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 2.05) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) any accrued interest on,
all the Securities or portions thereof which are to be redeemed on that date
(other than Securities or portions thereof surrendered for conversion into
Common Stock). If any Security called for redemption is converted into
Common Stock pursuant hereto, any monies deposited with the Trustee or a
Paying Agent or so segregated and held in trust for the redemption of such
Security shall be paid to the Company upon the Company's request, or, if then
held by the Company, shall be discharged from such trust.
SECTION 3.07. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
-27-
become due and payable at the Redemption Price thereof and from and after
such date (unless the Company shall default in the payment of the Redemption
Price and accrued interest) such Securities shall cease to bear interest and
from and after such date (unless an earlier date shall be specified in the
Authorizing Resolution or supplemental indenture (if any) pursuant to which
the terms of the Securities of such Series were established) such Securities
shall cease to be convertible into Common Stock. Upon surrender of any such
Security for redemption in accordance with said notice such Security shall be
paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; PROVIDED, HOWEVER, that installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable
to the Holders of such Securities registered as such on the relevant Regular
or Special Record Date according to their terms and the provisions of such
Security and Section 2.13.
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 borne by
the Security or, in the case of Original Issue Discount Securities, at a
rate equal to the Yield to Maturity thereof, and such Security shall remain
convertible into Common Stock until the Redemption Price of such Security
(together with such interest thereon) shall have been paid or duly provided
for.
SECTION 3.08. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be
surrendered at the office or agency of the Company maintained for that
purpose pursuant to Section 5.02 (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities of the same
Series, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed
portion of the principal of the Security so surrendered.
-28-
ARTICLE 4
SINKING FUND
SECTION 4.01. SINKING FUND PAYMENTS.
As and for a Sinking Fund for the retirement of Sinking Fund
Securities, the Company will, until all such Securities are paid or payment
thereof is duly provided for, deposit in accordance with Section 3.06, at
such times and subject to such terms and conditions as shall be specified in
the provisions of such Securities and the Authorizing Resolution and/or
supplemental indenture (if any) relating thereto, such amounts in cash or
such other Required Currency as shall be required or permitted under such
provisions in order to redeem Securities on the specified Redemption Dates at
a Redemption Price equal to their principal amounts, less in each such case
the amount of any credit against such payment received by the Company under
Section 4.02. Each such Sinking Fund payment shall be applied to the
redemption of Securities on the specified Redemption Date as herein provided.
SECTION 4.02. SATISFACTION OF SINKING FUND
PAYMENTS WITH SECURITIES.
The Company (1) may deliver Securities of the same Series (other
than any Securities of such Series previously called for redemption pursuant
to the Sinking Fund or theretofore applied as a credit against a Sinking Fund
payment), (2) may apply as a credit Securities of the same Series redeemed at
the election of the Company pursuant to Section 3.01 or through the operation
of the Sinking Fund in any period in excess of the minimum amount required
for such period under Section 4.01 and not theretofore applied as a credit
against a Sinking Fund payment, or (3) may apply as credit Securities of the
same Series (not previously so credited) converted into Common Stock and so
delivered to the Trustee for cancellation, in each case in satisfaction of
all or any part of any Sinking Fund payment required to be made pursuant to
Section 4.01. Each such Security so delivered or applied shall be credited
for such purpose by the Trustee at a Redemption Price equal to its principal
amount or, in the case of an Original Issue Discount Security, its then
accreted value, and the required amount of such Sinking Fund payment in
respect of such Series shall be reduced accordingly.
-29-
SECTION 4.03. REDEMPTION OF SECURITIES FOR
SINKING FUND.
If in any year the Company shall elect to redeem in excess of the
minimum principal amount of Securities of any Series required to be redeemed
pursuant to Section 4.01 or to satisfy all or any part of any Sinking Fund
payment by delivering or crediting Securities of the same Series pursuant to
Section 4.02, then at least 45 days prior to the date on which the Sinking
Fund payment in question shall be due, the Company shall deliver to the
Trustee an Officers' Certificate specifying the amount of the Sinking Fund
payment and the portions thereof which are to be satisfied by payment of cash
or such other Required Currency, by delivery of Securities of such Series or
by crediting Securities of such Series (including Securities of such Series
previously converted into Common Stock), and, at least 45 days prior to the
Sinking Fund payment date (or such shorter period as shall be approved by the
Trustee), will also deliver to the Trustee the Securities of such Series to
be so delivered. Such Officers' Certificate shall also state that the
Securities forming the basis of any such credit do not include any Securities
which have been redeemed through the operation of the Sinking Fund in the
minimum amount required under Section 4.01 or previously credited against any
Sinking Fund payment. The Trustee shall, upon the receipt of such Officers'
Certificate (or, if it shall not have received such an Officers' Certificate
at least 45 days prior to the Sinking Fund payment date, then following such
45th day), select the Securities of such Series to be redeemed upon the next
Sinking Fund payment date, in the manner specified in Section 3.04, and cause
notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 3.05. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 3.06, 3.07 and 3.08.
ARTICLE 5
COVENANTS
SECTION 5.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the
Securities of each Series on the dates and in the manner provided in the
Securities and in this Indenture. An installment of principal or interest
shall be considered paid on the date due if the Trustee or Paying Agent
(other than the Company
-30-
or a Subsidiary) holds on that date money designated for and sufficient to
pay the installment.
The Company shall pay interest on overdue principal at the
respective rates borne by such Securities or, in the case of Original Issue
Discount Securities, at rates equal to the respective Yields to Maturity
thereof; it shall pay interest on overdue installments of interest at the
respective rates borne by such Securities to the extent lawful.
SECTION 5.02. MAINTENANCE OF OFFICE OR AGENCY.
Except as otherwise provided in the Authorizing Resolutions
and/or supplemental indenture (if any) relating to any Series, the Company
will maintain in The City of New York, an office or agency where Securities
may be surrendered for registration of transfer or exchange, for presentation
for payment or, if applicable, for conversion, and where notices and demands
to or upon the Company in respect to the Securities and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or
agency or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of any Series or a particular
Series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; PROVIDED, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York, for such
purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
The Company hereby initially designates the Trustee in The City
of New York, as an agency of the Company in accordance with Section 2.04.
SECTION 5.03. CORPORATE EXISTENCE.
Subject to Article 6, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence and the rights (charter and
-31-
statutory) and material franchises of the Company; PROVIDED, HOWEVER, that
the Company shall not be required to preserve any such right or franchise if
the Board of Directors or management of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries, taken as a whole, and if the loss thereof
is not, and will not be, adverse in any material respect to the Holders.
SECTION 5.04. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee within 90 days after the
end of each fiscal quarter of the Company an Officers' Certificate stating
whether or not the signers know of the existence of any Default or Event of
Default by the Company and whether all of the conditions and covenants of the
Company are being complied with regardless of any period of grace or
requirement of notice provided under this Indenture. If they do know of such
a Default or Event of Default, the certificate shall describe the Default or
Event of Default, as the case may be, and its status. The first Officers'
Certificate to be delivered pursuant to this Section 5.04 shall be for the
fiscal quarter ending immediately after the Original Issue Date.
SECTION 5.05. SEC REPORTS
(a) The Company shall file with the Trustee within 15 days
after it files them with the SEC copies of the annual reports and of the
information, documents and other reports (or copies of such portions of any
of the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended. The Company also shall
comply with the other provisions of TIA Section 314(a).
(b) So long as the Securities of any Series remain outstanding,
the Company shall cause its annual report to stockholders and any quarterly
or other financial reports furnished by it to stockholders to be mailed to
the Holders of Securities outstanding at the their addresses appearing in the
Security Register.
-32-
SECTION 5.06. WAIVER OF STAY, EXTENSION
OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law, which would prohibit or forgive the Company from
paying all or any portion of the principal of and/or interest on the
Securities of any Series as contemplated herein, whenever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture, and (to the extent that it may lawfully do so)
the Company hereby expressly waives all benefit or advantage of any such law,
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee but will suffer and permit the execution
of every such power as though no law had been enacted.
ARTICLE 6
SUCCESSOR CORPORATION
SECTION 6.01. WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate with or merge with or into any
other corporation or transfer all or substantially all of its properties and
assets as an entirety to any person, unless:
(1) either the Company shall be the continuing person, or the
person (if other than the Company) formed by such consolidation or
into which the Company is merged or to which all or substantially all
of the properties and assets of the Company as an entirety are
transferred shall be a corporation organized and existing under the
laws of the United States or any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, all the obligations of the Company under the
Securities of each Series and this Indenture and shall expressly
provide for the conversion rights, if any, in accordance with this
Indenture;
(2) immediately before and immediately after giving effect to
such transaction, no Event of Default and no Default shall have
occurred and be continuing; and
-33-
(3) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transactions have been complied
with.
Notwithstanding the foregoing, any Subsidiary may consolidate
with, merge with or into or transfer all or part of its properties and assets
to the Company or any other Subsidiary or Subsidiaries.
SECTION 6.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any transfer of all or
substantially all of the properties and assets of the Company in accordance
with Section 6.01, the successor corporation formed by such consolidation or
into which the Company is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein.
ARTICLE 7
DEFAULT AND REMEDIES
SECTION 7.01. EVENTS OF DEFAULT.
An "Event of Default" occurs if, with respect to any Series of
Securities, unless it is either inapplicable to a particular Series or it is
specifically deleted or modified in the Authorizing Resolution and/or
supplemental indenture (if any) in respect of such Series, and upon any other
events which may be specified as Events of Default in the Authorizing
Resolution and/or supplemental indenture (if any) in respect of such Series:
(1) the Company defaults in the payment of interest on any
Securities of such Series when the same becomes due and payable and
the default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of
any Securities of such Series when the same becomes due and payable
at its Maturity or otherwise or
-34-
defaults in the deposit of any Sinking Fund installment in respect of such
Series, when and as payable by the terms of Section 4.01 hereof;
(3) the Company fails to comply with any of its other
agreements contained in the Securities of such Series or this
Indenture (other than an agreement relating exclusively to another
Series of Securities) and the default continues for the period and
after the notice specified below;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against
it in an involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary
case or proceeding,
(B) appoints a Custodian of the Company for all or
substantially all of its properties, or
(C) orders the liquidation of the Company,
and in each case the order or decree remains unstayed and in effect
for 60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
-35-
A Default under clause (3) is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in principal
amount of the outstanding Securities of such Series notify the Company and
the Trustee, of the Default and the Company does not cure the Default within
60 days after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a "Notice of
Default." When a Default is cured, it ceases. Such notice shall be given by
the Trustee if so requested by the Holders of at least 25% in principal
amount of the Securities of such Series then outstanding.
Subject to the provisions of Sections 8.01 and 8.02, the Trustee
shall not be charged with knowledge of any Event of Default unless written
notice thereof shall have been given to a Trust Officer at the corporate
trust office of the Trustee by the Company, the Paying Agent, any Holder or
an agent of any Holder.
SECTION 7.02. ACCELERATION.
If an Event of Default (other than an Event of Default specified
in Section 7.01(4) or (5)) with respect to Securities of any Series occurs
and is continuing, the Trustee may, by notice to the Company, or the Holders
of at least 25% in principal amount of such Securities of such Series then
outstanding may, by notice to the Company and the Trustee, and the Trustee
shall, upon the request of such Holders, declare all unpaid principal (or, if
such Securities are Original Issue Discount Securities, such portion of the
principal amount as may then be payable on acceleration as provided in the
terms thereof) and accrued interest to the date of acceleration on all such
Securities of such Series then outstanding (if not then due and payable) to
be due and payable and, upon any such declaration, the same shall become and
be immediately due and payable. If an Event of Default specified in Section
7.01(4) or (5) occurs, all unpaid principal (or, if any Securities are
Original Issue Discount Securities, such portion of the principal amount as
may then be payable on acceleration as provided in the terms thereof) and
accrued interest on all Securities of every Series then outstanding shall
IPSO FACTO become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Securityholder. Upon payment
of such principal amount and interest, all of the Company's obligations under
such Securities of such Series and this Indenture with respect to such
Securities of such Series, other than obligations under Section 8.07, shall
terminate.
-36-
The Holders of a majority in principal amount of the Securities of such
Series then outstanding by notice to the Trustee may rescind an acceleration
and its consequences if (i) all existing Events of Default, other than the
non-payment of the principal of the Securities of such Series which has
become due solely by such declaration of acceleration, have been cured or
waived, (ii) to the extent the payment of such interest is lawful, interest
on overdue installments of interest and overdue principal, which has become
due otherwise than by such declaration of acceleration, has been paid, (iii)
the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction and (iv) all payments due to the Trustee and any
predecessor Trustee under Section 8.07 have been made. Anything herein
contained to the contrary notwithstanding, in the event of any acceleration
pursuant to this Section 6.02, the Company shall not be obligated to pay any
premium in connection with any repayment arising from an Event of Default.
SECTION 7.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities of the Series as to
which the Event of Default shall have occurred or to enforce the performance
of any provision of such Securities or the Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities of the Series as to which the Event of Default shall
have occurred or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy
is exclusive of any other remedy. All available remedies are cumulative to
the extent permitted by law.
SECTION 7.04. WAIVER OF PAST DEFAULTS.
Subject to Sections 7.07 and 10.02, the Holders of a majority in
principal amount of the outstanding Securities of a Series by written notice
to the Trustee may waive an existing Default or Event of Default and its
consequences, except a Default in the payment of principal of or interest on
any such Security as specified in clauses (1) and (2) of Section 7.01.
-37-
When a Default or Event of Default is waived, it is cured and ceases.
SECTION 7.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the outstanding
Securities of a Series (or, if more than one Series is affected, of all such
Series voting as a single class) may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may
refuse to follow any direction that conflicts with any law or this Indenture
that the Trustee determines may be unduly prejudicial to the rights of
another Securityholder, or that may involve the Trustee in personal
liability; PROVIDED that the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
SECTION 7.06. LIMITATION ON SUITS.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities of the applicable Series unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in principal amount of the
outstanding Securities of the Series in respect of which the Event of
Default has occurred make a written request to the Trustee to pursue
a remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the outstanding Securities of such Series do not
give the Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
-38-
A Holder of Securities of any Series may not use this Indenture
to prejudice the rights of any other Holders of Securities of that Series or
to obtain a preference or priority over any other Holders of Securities of
that Series.
SECTION 7.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, but
subject to Article 13, the right of any Holder to receive payment of
principal of and interest on the Security, on or after the respective due
dates expressed in such Security, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 7.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of interest or principal
specified in Section 7.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against
the Company or any other obligor on the Securities of the Series in respect
of which the Event of Default has occurred for the whole amount of principal
and accrued interest remaining unpaid, together with interest overdue on
principal or, in the case of Original Issue Discount Securities, the then
accreted value, and to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per
annum borne by such Securities or, in the case of Original Issue Discount
Securities, at a rate equal to the Yield to Maturity thereof, and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
SECTION 7.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Securityholders allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Securities), its creditors or its property
and shall be entitled and empowered to collect and receive any monies or
other property payable or deliverable on any such claims and to distribute
the same, and any Custodian
-39-
in any such judicial proceedings is hereby authorized by each Securityholder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Securityholders, to
pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 8.07. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the
Securities of any Series 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.
SECTION 7.10. PRIORITIES.
If the Trustee collects any money or property pursuant to this
Article 7 with respect to Securities of a Series, it shall pay out the money
or property in the following order:
First: to the Trustee for amounts due under Section 8.07;
Second: to Holders for amounts due and unpaid on the
Securities of such Series in respect of which monies have been
collected for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Securityholders pursuant to
this Section 7.10.
SECTION 7.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing
by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the
-40-
claims or defenses made by the party litigant. This Section 7.11 does not
apply to a suit by the Trustee, a suit by a Holder pursuant to Section 7.07,
or a suit by any Holder or a group of Holders of more than 10% in principal
amount of the outstanding Securities of all Series (or, if the matter in
issue does not relate to all Series of Securities, then the Holders of 10% in
principal amount of the outstanding Securities of all Series to which such
issue relates) (treated as a single class).
ARTICLE 8
TRUSTEE
SECTION 8.01. DUTIES OF TRUSTEE.
(a) The Trustee, except during the continuance of an Event of
Default known to it pursuant to Section 7.01, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture.
If an Event of Default known to the Trustee pursuant to Section 7.01 has
occurred and is continuing, 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 person would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default known
to the Trustee pursuant to Section 7.01:
(1) the Trustee need perform only those duties as are
specifically set forth in this Indenture and no others and no implied
covenants or obligations shall be read into this Indenture against
the Trustee;
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture, however, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
-41-
(1) this paragraph does not limit the effect of paragraphs (a)
and (b) of this Section 8.01;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 7.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of
its rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
8.01.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company in writing.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 8.02. RIGHTS OF TRUSTEE.
Subject to Section 8.01:
(a) the Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person;
the Trustee need not investigate any fact or matter stated in the
document;
(b) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which
shall conform to Section 11.05; the Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on
such certificate or opinion;
-42-
(c) the Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any
agent appointed with due care;
(d) the Trustee shall not be liable for any action it takes
or omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers;
(e) the Trustee may consult with counsel and the advice or
opinion of such counsel as to matters of law shall be full and
complete authorization and protection in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance
with the advice or opinion of such counsel; and
(f) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of the Holders, including, without limitation, the
duties, rights and powers specified in Section 7.02 hereof, unless
such Holders have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred
by the Trustee in compliance with such request or action.
SECTION 8.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. However, the Trustee is subject
to Sections 8.10 and 8.11.
SECTION 8.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities of any Series, it shall not be
accountable for the recitals contained in this Indenture or for the Company's
use of the proceeds from the Securities of any Series, and it shall not be
responsible for any statement in the Securities of any Series, or in any
prospectus used to sell the Securities of any Series, other than its
certificate of authentication.
-43-
SECTION 8.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing with
respect of any Series of Securities, and if it is actually known to the
Trustee pursuant to Section 7.01 hereof, the Trustee shall mail to each
Holder of the Securities of such Series notice of the Default or Event of
Default within 75 days after it occurs. Except in the case of a Default or
Event of Default in payment of principal of or interest on any Security or in
the payment of any Sinking Fund installment, the Trustee may withhold such
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interest of Securityholders.
SECTION 8.06. REPORTS BY TRUSTEE TO HOLDERS.
The Trustee shall transmit to the Holder such reports concerning,
among other things, the Trustee and its action under this Indenture as may be
required pursuant to the TIA at the time and in compliance with TIA Section
313(a). The Trustee also shall comply with TIA Sections 313(b)(2) and 313(c).
A copy of each such report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange, if any,
on which the Securities of any Series are listed.
The Company shall notify the Trustee if the Securities of any
Series become listed on any stock exchange.
SECTION 8.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed upon in writing by the Company and the
Trustee. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse
the Trustee upon request for all reasonable disbursements, expenses and
advances incurred or made by it. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability incurred by it in connection with the
administration of this trust and its duties hereunder, including the
reasonable expenses of defending itself against any claim of liability
arising hereunder. The
-44-
Trustee shall notify the Company promptly of any claim asserted against the
Trustee for which it may seek indemnity. The Company need not pay for any
settlement made without its written consent, which consent shall not be
unreasonably withheld. The Company need not reimburse any expense or
indemnify against any loss or liability incurred by the Trustee through
negligence or bad faith.
To secure the Company's payment obligations in this Section 8.07,
the Trustee shall have a lien prior to the Securities of each Series on all
money or property held or collected by the Trustee, in its capacity as
Trustee, except money or property held in trust to pay principal of or
interest on particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 7.01(4) or (5) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 8.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company in writing.
The Holders of a majority in principal amount of the outstanding Securities
of all Series (voting as a single class) may remove the Trustee by so
notifying the Trustee in writing and may appoint a successor Trustee with the
Company's consent. Pursuant to a Company Order, the Company may remove the
Trustee if:
(1) the Trustee fails to comply with Section 8.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the Securities of all Series
-45-
(voting as a single class) may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall transfer, after payment of all sums then
owing to the Trustee pursuant to Section 8.07, all property held by it as
Trustee to the successor Trustee, subject to the lien provided in Section
8.07, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Securityholder.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company
or the Holders of at least 10% in principal amount of the outstanding
Securities of all Series (voting as a single class) may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 8.10, any
Securityholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee. Any
successor Trustee shall comply with TIA Section 310(a)(5).
Notwithstanding replacement of the Trustee pursuant to this
Section 8.08, the Company's obligations under Section 8.07 shall continue for
the benefit of the retiring Trustee.
SECTION 8.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to,
another corporation, the resulting, surviving or transferee corporation
without any further act shall be the successor Trustee.
SECTION 8.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall have combined capital
and surplus of at least $50,000,000 as set forth in its most recent
published annual report of
-46-
condition. The Trustee shall comply with TIA Section 310(b), including the
provision permitted by the second sentence of TIA Section 310(b).
SECTION 8.11. PREFERENTIAL COLLECTION OF
CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding from the
operation of 311(a) any creditor relationship listed in TIA Section 311(b). A
Trustee who has resigned or been removed shall be subject to TIA Section 311(a)
to the extent indicated.
ARTICLE 9
DISCHARGE OF INDENTURE
SECTION 9.01. TERMINATION OF COMPANY'S OBLIGATIONS.
The Company may terminate its obligations under the Securities of
any Series and this Indenture with respect to such Series, except those
obligations referred to in the immediately succeeding paragraph, (a) if all
Securities of such Series previously authenticated and delivered (other than
destroyed, lost or stolen Securities of such Series which have been replaced
or paid or Securities of such Series for whose payment money or securities
have theretofore been held in trust and thereafter repaid to the Company, as
provided in Section 8.03) have been delivered to the Trustee for cancellation
and the Company has paid all sums payable by it hereunder, or (b) if,
following the date on which the Company shall have given notice to the
Trustee of its intention to defease all of the Securities of such Series, the
Company has irrevocably deposited or caused to be deposited with the Trustee
or a Paying Agent (other than the Company or a Subsidiary), under the terms
of an irrevocable trust agreement in form and substance satisfactory to the
Trustee and any such Paying Agent, as trust funds in trust solely for the
benefit of the Holders for that purpose (i) in the case of any Securities of
any Series denominated in United States dollars, an amount of cash sufficient
to pay principal of and interest on such outstanding Securities at their
respective Stated Maturities, or direct non-callable obligations of, or
non-callable obligations guaranteed by, the United States of America for the
payment of which guarantee or obligation the full faith and credit of the
United States is pledged, including but not limited to depository receipts
issued by a bank as custodian with respect to any such security held by the
custodian for the benefit of the holder of such
-47-
depository receipt ("U.S. Government Obligations"), maturing as to principal
and interest in such amounts and at such times as are sufficient without
consideration of any reinvestment of such interest, to pay principal of and
interest on such outstanding Securities at their respective Stated Maturities
and (ii) in the case of any Securities of any Series denominated in any
currency other than United States dollars, an amount of the Required Currency
sufficient to pay principal of and interest on such outstanding Securities at
their respective Stated maturities; PROVIDED that the Trustee or such Paying
Agent shall have been irrevocably instructed to apply such cash, the proceeds
of such U.S. Government Obligations or the Required Currency, as the case may
be, to the payment of said principal and interest with respect to the
Securities of such Series; and PROVIDED, FURTHER, that if such irrevocable
deposit in trust with the Trustee of cash, U.S. Government Obligations or the
Required Currency, as the case may be, is made on or prior to one year from
the Stated Maturity for payment of principal of the Securities of the
applicable Series, the Company shall have delivered to the Trustee either an
Opinion of Counsel with no material qualifications in form and substance
satisfactory to the Trustee to the effect that Holders of such Securities (i)
will not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit (and the defeasance contemplated in connection
therewith) and (ii) will be subject to Federal income tax on the same amounts
and in the same manner and at the same times as would have been the case if
such deposit and defeasance had not occurred, or an applicable favorable
ruling to that effect received from or published by the Internal Revenue
Service.
Notwithstanding the foregoing paragraph, the Company's
obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 5.01, 5.02, 8.07, 8.08,
9.03, 9.04 and Article 12 and except as otherwise provided in the Authorizing
Resolution and/or the supplemental indenture (if any) in respect of any
Series, shall survive until the Securities are no longer outstanding.
Thereafter, the Company's obligations in Sections 8.07, 9.03 and 9.04 shall
survive.
After any such irrevocable deposit the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of the applicable Series and this Indenture with respect to such
Series except for those surviving obligations specified above.
-48-
SECTION 9.02. APPLICATION OF TRUST MONEY.
The Trustee or Paying Agent shall hold in trust cash, U.S.
Government Obligations or the Required Currency, as the case may be,
deposited with it pursuant to Section 9.01, and shall apply the deposited
cash, the money from U.S. Government Obligations or the Required Currency, as
the case may be, in accordance with this Indenture to the payment of
principal of and interest on the Securities.
SECTION 9.03. REPAYMENT TO COMPANY.
Subject to Section 9.01, the Trustee and the Paying Agent shall
promptly pay to the Company upon request any excess money held by them at any
time. Subject to the provisions of applicable law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal or interest that remains unclaimed for two years,
PROVIDED, HOWEVER, the Trustee or such Paying Agent before being required to
make any payment may at the expense of the Company cause to be published once
in a newspaper of general circulation in The City of New York or mail to each
Holder entitled to such money notice that such money remains unclaimed and
that, after a date specified therein which shall be at least 30 days from the
date of such publication or mailing, any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the Company, the
Trustee shall be released from all further liability with respect to such
money and Securityholders entitled to money must look to the Company for
payment as general creditors unless an applicable abandoned property law
designates another person.
SECTION 9.04. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any cash, U.S.
Government Obligations or the Required Currency, as the case may be, in
accordance with Section 9.01 by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture (with respect to the applicable Series) and
the Securities of the applicable Series shall be revived and reinstated as
though no deposit had occurred pursuant to Section 9.01 until such time as
the Trustee or Paying Agent is permitted to apply all such cash, U.S.
Government Obligations and Required Currency, as the case may be, in
accordance with Section 9.01; PROVIDED, HOWEVER, that if the
-49-
Company has made any payment of interest on or principal of any Securities of
any Series because of the reinstatement of its obligations, the Company shall
be subrogated to the rights of the Holders of such Securities to receive such
payment from the cash, U.S. Government Obligations or the Required Currency,
as the case may be, held by the Trustee or Paying Agent.
SECTION 9.05. INDEMNITY FOR U.S.
GOVERNMENT OBLIGATIONS.
The Company shall pay, and shall indemnify the Trustee against,
any tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Section 8.01 or the principal and interest
received on such U.S. Government Obligations.
ARTICLE 10
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. WITHOUT CONSENT OF HOLDERS.
The Company, when authorized by a Board Resolution, and the
Trustee may amend or supplement this Indenture or the Securities of any
Series without notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 6;
(3) to provide for uncertificated Securities in addition to
certificated Securities;
(4) to make any change that does not adversely affect the
rights of any Securityholder of such Series;
(5) to provide for the issuance and the terms of any
particular Series of Securities, the rights and obligations of the
Company and the Holders of Securities of such Series, the form or
forms of the Securities of such Series and such other matters in
connection therewith as the Board of Directors of the Company shall
consider appropriate, including, without limitation, provisions for
(a) additional or different covenants, restrictions or conditions
applicable to such Series, (b) additional or different Events of
Default in respect of such Series,
-50-
(c) a longer or shorter period of grace and/or notice in respect
of any provision applicable to such Series than is provided in Section
7.01, (d) immediate enforcement of any Event of Default in respect of
such Series or (e) limitations upon the remedies available in respect
of any Events of Default in respect of such Series or upon the rights
of the holders of Securities of such Series to waive any such Event of
Default; PROVIDED, that this paragraph (5) shall not be deemed to
require the execution of a supplemental indenture to provide for the
issuance of any Series of Securities unless the same shall be provided
for in the Authorizing Resolution relating thereto; or
(6) to provide for a separate Trustee for one or more Series.
SECTION 10.02. WITH CONSENT OF HOLDERS.
Subject to Section 7.07, with the written consent of the
Holders of at least a majority in principal amount of the outstanding
Securities of all Series affected thereby (voting as a single class),
the Company, when authorized by a Board Resolution, and the Trustee
may amend or supplement this Indenture or such Securities without
notice to any Securityholder. Subject to Section 7.07, the Holders of
a majority in principal amount of the outstanding Securities of all
Series affected thereby (voting as a single class) may waive
compliance by the Company with any provision of this Indenture or such
Securities without notice to any Securityholder; PROVIDED, that, only
the holders of a majority in principal amount of Securities of a
particular Series may waive compliance with a provision of this
Indenture or the Securities of such Series having applicability solely
to such Series. However, without the consent of each Securityholder
affected, an amendment, supplement or waiver, including a waiver
pursuant to Section 7.04, may not:
(1) reduce the amount of Securities of such Series or all
Series (voting as a single class), as the case may be, whose Holders
must consent to an amendment, supplement or waiver;
(2) reduce the rate or change the Stated Maturity for payment
of interest on any Security;
(3) reduce the principal or any premium payable upon the
redemption of or change the Stated Maturity of any Security;
-51-
(4) waive a Default in the payment of the principal of or
interest on any Security;
(5) make any changes in Section 7.04, 7.07 or the third
sentence of this Section 10.02;
(6) make any Security payable in money other than that stated
in the Security; or
(7) adversely affect the right to convert the Securities into
Common Stock in accordance herewith.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular Series of Securities,
or which modifies the rights of the Holders of Securities of such
Series with respect to such covenant or other provision, shall be
deemed not to affect the rights under the Indenture of the Holders of
Securities of any other Series.
It shall not be necessary for the consent of the Holders
under this Section to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.
After an amendment, supplement or waiver under this
Section becomes effective, the Company shall mail to the Holders
affected thereby a notice briefly describing the amendment, supplement
or waiver. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
SECTION 10.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 10.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of such Security or portion of such Security that
evidences the same debt as the consenting Holder's Security, even if
notation of the consent is not made on any Security. However, any
such Holder or subsequent Holder
-52-
may revoke in writing the consent as to his Security or portion of a
Security. Such revocation shall be effective only if the Trustee
receives the written notice of revocation before the date the
amendment, supplement or waiver becomes effective.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to
consent to any amendment, supplement or waiver which shall be at least
30 days prior to the first solicitation of such consent. If a record
date is fixed, then notwithstanding the last two sentences of the
immediately preceding paragraph, those persons who were Holders at
such record date (or their duly designated proxies), and only those
persons, shall be entitled to consent to such amendment, supplement or
waiver or to revoke any consent previously given, whether or not such
persons continue to be Holders after such record date. No such
consent shall be valid or effective for more than 90 days after such
record date.
After an amendment, supplement or waiver becomes
effective, it shall bind every Holder of a Security of such Series,
unless it makes a change described in any of clauses (1) through (7)
of Section 10.02. In that case the amendment, supplement or waiver
shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security of the same
Series that evidences the same debt as the consenting Holder's
Security.
SECTION 10.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of
a Security, the Trustee may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security about the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines,
the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security of the same Series that reflects the
changed terms.
SECTION 10.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall be entitled to receive, and shall be
fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article 10 is
authorized or permitted by this Indenture. The
-53-
Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 10.07. SUBORDINATION UNIMPAIRED.
This Indenture may not be amended to alter the
subordination of any Security without the written consent of each
holder of Senior Indebtedness then outstanding that would be adversely
affected thereby.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be included in
this Indenture by the TIA, the required provision shall control.
SECTION 11.02. NOTICES.
Any notice or communication shall be sufficiently given if
in writing and delivered in person or mailed by first-class mail
addressed as follows:
if to the Company:
Forest Oil Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
if to the Trustee:
-54-
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder
shall be mailed to him at his address as it appears on the Security
Register and shall be sufficiently given to him if so mailed within
the time prescribed.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its sufficiency
with respect to other Securityholders. Except for a notice to the
Trustee, which is deemed given only when received, if a notice or
communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 11.03. COMMUNICATIONS BY HOLDERS
WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b)
with other Securityholders with respect to their rights under this
Indenture or the Securities of an applicable Series. The Company, the
Trustee, the Registrar and any other person shall have the protection
of TIA Section 312(c).
SECTION 11.04. CERTIFICATE AND OPINION
AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
-55-
SECTION 11.05. STATEMENTS REQUIRED IN
CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with; PROVIDED,
HOWEVER, that with respect to matters of fact an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public
officials.
SECTION 11.06. RULES BY TRUSTEE, PAYING AGENT,
REGISTRAR.
The Trustee may make reasonable rules for action by or at
a meeting of Securityholders. The Paying Agent or Registrar may make
reasonable rules for its functions.
SECTION 11.07. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday or a day on
which banking institutions in New York, New York are not required to
be open. If a payment date is a Legal Holiday at a place of payment,
payment may be made at the place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening
period.
-56-
SECTION 11.08. GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS
INDENTURE AND THE SECURITIES WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAW.
SECTION 11.09. NO ADVERSE INTERPRETATION
OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or any of its
Subsidiaries. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.
SECTION 11.10. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of
the Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based
on, in respect of or by reason of such obligations or their creation.
Each Securityholder by accepting a Security waives and releases all
such liability.
SECTION 11.11. SUCCESSORS.
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in
this Indenture shall bind its successor.
SECTION 11.12. DUPLICATE ORIGINALS.
The parties may sign any number of copies of the
Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
SECTION 11.13. SEPARABILITY.
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby, and a Holder shall have no
claim therefor against any party hereto.
-57-
SECTION 11.14. ACTION OF HOLDERS WHEN SECURITIES ARE
DENOMINATED IN DIFFERENT CURRENCIES.
Whenever any action is to be taken hereunder by the
Holders of two or more Series of Securities denominated in different
currencies, then, for the purposes of determining the principal amount
of Securities held by such Holders, the aggregate principal amount of
the Securities denominated in a currency other than United States
dollars shall be deemed to be that amount of United States dollars
that could be obtained for such principal amount on the basis of the
spot rate of exchange for such currency as determined by the Company
or by an authorized exchange rate agent and evidenced to the Trustee
by an Officers' Certificate as of the date the taking of such action
by the Holders of the requisite percentage in principal amount of the
Securities is evidenced to the Trustee. An exchange rate agent may be
authorized in advance or from time to time by the Company, and may be
the Trustee or its Affiliate. Any such determination by the Company
or by any such exchange rate agent shall be conclusive and binding on
all Holders and the Trustee, and neither the Company nor such exchange
rate agent shall be liable therefor in the absence of bad faith.
SECTION 11.15. MONIES OF DIFFERENT CURRENCIES
TO BE SEGREGATED.
The Trustee shall segregate monies, funds, and accounts
held by the Trustee hereunder in one currency from any monies, funds
or accounts in any other currencies, notwithstanding any provision
herein which would otherwise permit the Trustee to commingle such
amounts.
SECTION 11.16. PAYMENT TO BE IN PROPER CURRENCY.
Each reference in any Security, or in the Authorizing
Resolution and/or supplemental indenture, if any, relating thereto, to
any currency shall be of the essence. In the case of any Security
denominated in any currency (the "Required Currency") other than
United States dollars, except as otherwise provided therein or in the
related Authorizing Resolution and/or supplemental indenture, if any,
the obligation of the Company to make any payment of principal of or
interest thereon shall not be discharged or satisfied by any tender by
the Company, or recovery by the Trustee, in any currency other than
the Required Currency, except to the extent that such tender or
recovery shall result in the Trustee timely holding the full amount of
the Required Currency. The costs and risks of any
-58-
such exchange, including without limitations, the risks of delay and
exchange rate fluctuation, shall be borne by the Company; the Company
shall remain fully liable for any shortfall or delinquency in the full
amount of Required Currency then due and payable, and in no
circumstances shall the Trustee be liable therefor. The Company
hereby waives any defense of payment based upon any such tender or
recovery which is not in the Required Currency, or which, when
exchanged for the Required Currency by the Trustee, is less than the
full amount of Required Currency then due and payable.
ARTICLE 12
CONVERSION OF SECURITIES
SECTION 12.01. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to the
Securities of any Series which are convertible into Common Stock
pursuant to the Authorizing Resolution and/or Supplemental Indenture
(if any) by which the form and terms of the Securities of such Series
were established, as and to the extent provided by the terms of the
Securities of such Series.
SECTION 12.02. EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege, the Holder
of any Security to be converted shall surrender such Security to the
Conversion Agent at any time during usual business hours at its office
or agency maintained for the purpose as provided in this Indenture,
accompanied by a fully executed written notice, in substantially the
form set forth on the reverse of the Security, that the Holder elects
to convert such Security or a stated portion thereof constituting a
multiple of $1,000 in principal amount, and, if such Security is
surrendered for conversion during the period between the close of
business on any Regular Record Date for such Security and the opening
of business on the related Interest Payment Date and has not been
called for redemption on a Redemption Date within such period (or on
such Interest Payment Date), accompanied also by payment of an amount
equal to the interest payable on such Interest Payment Date on the
portion of the principal amount of the Security being surrendered for
conversion. Such notice shall also state the name or names (and
address) in which the certificate or certificates of shares of Common
Stock shall be issued. Securities surrendered for conversion shall
(if so required by the Company or the Conversion Agent) be duly
-59-
endorsed by, or be accompanied by a written instrument or instruments
of transfer in form satisfactory to the Company and the Conversion
Agent duly executed by, the Holder or his attorney duly authorized in
writing. As promptly as practicable after the receipt of such notice
and the surrender of such Security as aforesaid, the Company shall,
subject to the provisions of Section 12.07, issue and deliver at such
office or agency to such Holder, or on his written order, a
certificate or certificates for the number of full shares of Common
Stock issuable on conversion of such Security in accordance with the
provisions of such Security and cash, as provided in Section 12.03, in
respect of any fraction of a share of Common Stock otherwise issuable
upon such conversion. Such conversion shall be at the Conversion
Price in effect, and shall be deemed to have been effected,
immediately prior to the close of business on the date (herein called
the "Date of Conversion") on which such notice in proper form shall
have been received by the Conversion Agent and such Security shall
have been surrendered as aforesaid, and the person or persons in whose
name or names any certificate or certificates for shares of Common
Stock shall be issuable upon such conversion shall be deemed to have
become on the Date of Conversion the holder or holders of record of
the shares represented thereby; PROVIDED, HOWEVER, that any such
surrender on any date when the stock transfer books of the Company
shall be closed shall constitute the person or persons in whose name
or names the certificate or certificates for such shares are to be
issued as the record holder or holders thereof for all purposes at the
opening of business on the next succeeding day on which such stock
transfer books are open but such conversion shall nevertheless be at
the Conversion Price in effect at the close of business on the date
when such Security shall have been so surrendered with the conversion
notice in proper form. In the case of conversion of a portion, but
less than all, of a Security, the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder thereof, at the
expense of the Company, a Security or Securities in the aggregate
principal amount of the unconverted portion of the Security
surrendered. Except as otherwise expressly provided in this
Indenture, no payment or adjustment shall be made for interest accrued
on any Security (or portion thereof) converted or for dividends or
distributions on any Common Stock issued upon conversion of any
Security. The right, if any, of a Holder of any Security to cause the
Company to redeem, purchase or repay such Security shall terminate
upon receipt by the Company of any notice of conversion of such
Security.
-60-
SECTION 12.03. FRACTIONAL INTERESTS.
No fractions of shares or scrip representing fractions of shares
shall be issued upon conversion of Securities. If more than one Security
shall be surrendered for conversion at one time by the same Holder, the
number of full shares which shall be issuable upon conversion thereof shall
be computed on the basis of the aggregate principal amount of the Securities
so surrendered. If any fraction of a share of Common Stock would, except for
the provisions of this Section 12.03, be issuable on the conversion of any
Security or Securities, the Company shall make payment in lieu thereof in
cash equal to the value of such fraction computed on the basis of the Last
Sale Price of one share of Common Stock on the most recent Trading Day prior
to the Date of Conversion. "Last Sale Price" on any Trading Day shall mean
(i) the closing price regular way (or, if no closing price is reported, the
average of the bid and asked prices) as reported on the New York Stock
Exchange Composite Tape, or (ii) if on such Trading Day the Common Stock is
not listed or admitted to trading on such exchange, the closing price regular
way (or, if no closing price is reported, the average of the bid and asked
prices) on the principal national securities exchange on which the Common
stock is listed or admitted to trading, or (iii) if not listed or admitted to
trading on any national securities exchange on such Trading Day, then the
average of the closing bid and asked prices as reported through the National
Association of Securities Dealers, Inc. on its Nasdaq National Market System
or Nasdaq System or a similar organization if Nasdaq is no longer reporting
information, or (iv) if the Common Stock is not listed or admitted to trading
on any national securities exchange or quoted on the Nasdaq National Market
System or Nasdaq System on such Trading Day, then the average of the closing
bid and asked prices in the over-the-counter market as furnished by any New
York Stock Exchange member firm selected from time to time by the Company for
that purpose or (v) if not quoted by any such organization on such Trading
Day, the fair value of such Common Stock on such Trading Day, as determined
by the Board of Directors. The term "Trading Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday, other than any day on which
securities are not traded on any of the above mentioned exchanges or in such
markets.
SECTION 12.04. ADJUSTMENT OF CONVERSION PRICE.
The conversion price or rate (herein called the "Conversion
Price") for the Securities of any Series shall be as
-61-
set forth in the Authorizing Resolution and/or supplemental indenture (if
any) pursuant to which the form and terms of the Securities of such Series
were established, and, except as otherwise provided therein, shall be subject
to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend or make a
distribution in shares of Common Stock on the Common Stock, (2)
subdivide its outstanding shares of Common Stock into a greater
number of shares, (3) combine its outstanding shares of Common Stock
into a smaller number of shares or (4) issue by reclassification of
its Common Stock any shares of Capital Stock of the Company, the
Conversion Price in effect immediately prior to such action shall be
adjusted so that the Holder of any Security thereafter surrendered
for conversion shall be entitled to receive the number of shares of
Common Stock or other Capital Stock of the Company which such Holder
would have owned immediately following such action had such Security
been converted immediately prior thereto. An adjustment made
pursuant to this subsection (a) shall become effective immediately,
except as provided in subsection (e) below, after the record date in
the case of a dividend or distribution and shall become effective
immediately after the effective date in the case of a subdivision,
combination or reclassification. If, as a result of an adjustment
made pursuant to this subsection (a), the Holder of any Security
thereafter surrendered for conversion shall become entitled to
receive shares of two or more classes of Capital Stock (including
shares of Common Stock and other Capital Stock) of the Company,
the Board of Directors (whose determination shall be conclusive and
shall be described in a statement filed with the Trustee) shall
determine the allocation of the adjusted Conversion Price between
or among shares of such classes of Capital Stock or shares of
Common Stock and other Capital Stock.
(b) In case the Company shall issue rights or warrants to all
holders of Common Stock entitling them (for a period not exceeding 45
days from the date of such issuance) to subscribe for or purchase
shares of Common Stock at a price per share less than the current
market price per share (as determined pursuant to subsection (d)
below) of the Common Stock on the record date mentioned below, the
Conversion Price shall be adjusted to a price, computed to the
nearest cent, so that the same shall equal the price determined by
multiplying:
-62-
(1) the Conversion Price in effect immediately prior to
the date of issuance of such rights or warrants by a fraction,
of which
(2) the numerator shall be (A) the number of shares of
Common Stock outstanding on the date of issuance of such rights
or warrants, immediately prior to such issuance, plus (B) the
number of shares which the aggregate offering price of the
total number of shares so offered for subscription or purchase
would purchase at such current market price (determined by
multiplying such total number of shares by the exercise price
of such rights or warrants and dividing the product so obtained
by such current market price), and of which
(3) the denominator shall be (A) the number of shares of
Common Stock outstanding on the date of issuance of such rights
or warrants, immediately prior to such issuance, plus (B) the
number of additional shares of Common Stock which are so
offered for subscription or purchase.
Such adjustment shall become effective immediately, except as
provided in subsection (e) below, after the record date for the
determination of holders entitled to receive such rights or warrants.
(c) In case the Company shall distribute to substantially all
holders of Common Stock, evidences of indebtedness, equity securities
(including equity interests in the Company's Subsidiaries) other than
Common Stock, or other assets (other than cash dividends paid out
of surplus of the Company), or shall distribute to substantially all
holders of Common Stock rights or warrants to subscribe for
securities (other than those referred to in subsection (b) above)
then in each such case the Conversion Price shall be adjusted so that
the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date of such
distribution by a fraction of which the numerator shall be the
current market price per share (determined as provided in subsection
(d) below) of the Common Stock on the record date mentioned below
less the then fair market value as determined by the Board of
Directors (whose determination shall, if made in good faith, be
conclusive evidence of such fair market value) of the portion of the
assets so distributed
-63-
or of such subscription rights or warrants applicable to one share
of Common Stock, and of which the denominator shall be such current
market price per share of the Common Stock. Such adjustment shall
become effective immediately, except as provided in subsection (e)
below, after the record date for the determination of stockholders
entitled to receive such distribution.
(d) For the purpose of any computation under subsections (b)
and (c) above, the current market price per share of Common Stock on
any date shall be deemed to be the average of the Last Sale Prices
for the 30 consecutive Trading Days commencing 45 Trading Days before
the date in question.
(e) In any case in which this Section 12.04 shall require
that an adjustment be made immediately following a record date, the
Company may elect to defer the effectiveness of such adjustment (but
in no event until a date later than the effective time of the event
giving rise to such adjustment), in which case the Company shall,
with respect to any Security converted after such record date and
before such adjustment shall have become effective, (i) defer paying
any cash payment pursuant to Section 12.03 or issuing to the Holder
of such Security the number of shares of Common Stock and other
Capital Stock of the Company issuable upon such conversion in excess
of the number of shares of Common Stock and other Capital Stock of
the Company issuable thereupon only on the basis of the Conversion
Price prior to adjustment, and (ii) not later than five Business Days
after such adjustment shall have become effective, pay to such Holder
the appropriate cash payment pursuant to Section 12.03 and issue to
such Holder the additional shares of Common Stock and other Capital
Stock of the Company issuable on such conversion.
(f) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% of the Conversion Price; PROVIDED that any adjustments which
by reason of this subsection (f) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment;
PROVIDED, FURTHER, that adjustment shall be required and made in
accordance with the provisions of this Article 11 (other than this
subsection (f)) not later than such time as may be required in order
to preserve the tax-free nature of a distribution to the holders of
Securities or
-64-
Common Stock. All calculations under this Article 11 shall be made
to the nearest cent or to the nearest one-hundredth of a share, as
the case may be.
(g) Whenever the Conversion Price is adjusted as herein
provided, the Company shall promptly (i) file with the Trustee and
each Conversion Agent an Officer's Certificate setting forth the
Conversion Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment, which certificate
shall be conclusive evidence of the correctness of such adjustment,
and (ii) mail or cause to be mailed a notice of such adjustment to
each Holder of Securities in the manner provided in Section 11.02.
Anything in this Section 12.04 to the contrary notwithstanding, the Company
shall be entitled to make such reductions in the Conversion Price, in
addition to those required by this Section 12.04, as it in its discretion
shall determine to be advisable in order that any stock dividend,
subdivision of shares, distribution of rights or warrants to purchase stock
or securities, or distribution of other assets (other than cash dividends)
hereafter made by the Company to its stockholders shall not be taxable.
SECTION 12.05. CONTINUATION OF CONVERSION PRIVILEGE
IN CASE OF MERGER, CONSOLIDATION OR
SALE OF ASSETS.
If any of the following shall occur, namely: (a) any
consolidation or merger of the Company as a result of which the holders of
Common Stock shall be entitled to receive stock, other securities or other
assets (including cash) with respect to or in exchange for Common Stock; or
(b) any sale, lease, exchange or other disposition of all or substantially
all of the property and assets of the Company as an entirety, then the
Company, or such successor or purchasing corporation, as the case may be,
shall, as a condition precedent to such consolidation, merger, sale, lease,
exchange or other disposition, execute and deliver to the Trustee a
supplemental indenture (which shall conform to the TIA as in force at the
date of the execution thereof) providing that the Holder of each convertible
Security then outstanding shall have the right to convert such Security into
the kind and amount of shares of stock and other securities and property
(including cash) receivable upon or in connection with such consolidation,
merger, sale, lease, exchange or other disposition by a holder of the number
of
-65-
shares of Common Stock issuable upon conversion of such Security immediately
prior to such consolidation, merger, sale, lease, exchange or other
disposition. Such supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article 12. If, in the case of any such consolidation,
merger, sale, lease, exchange or other disposition, the stock or other
securities and property (including cash) receivable thereupon or in
connection therewith by a holder of shares of Common Stock includes shares of
stock or other securities and property (including cash) of a corporation
other than the successor or purchasing corporation, as the case may be, in
such consolidation, merger, sale, lease, exchange or other disposition, then
such supplemental indenture shall also be executed by such other corporation
and shall contain such additional provisions to protect the interests of the
Holders of the Securities as the Board of Directors shall reasonably consider
necessary by reason of the foregoing. The provisions of this Section 12.05
shall similarly apply to successive consolidations, mergers, sales, leases,
exchanges or other dispositions.
Notice of the execution of each such supplemental indenture
shall be mailed to each Holder of Securities in the manner provided in
Section 11.02.
Neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in
any such supplemental indenture relating either to the kind or amount of
shares of stock or securities or property (including cash) receivable by
Holders of Securities upon the conversion of their Securities after any
such consolidation, merger, sale, lease, exchange or other disposition or
to any adjustment to be made with respect thereto, but, subject to the
provisions of Sections 8.01 and 8.02, may accept as conclusive evidence of
the correctness of any such provisions, and shall be protected in relying
upon, the Officer's Certificate (which the Company shall be obligated to
file with the Trustee prior to the execution of any such supplemental
indenture) with respect thereto.
-66-
SECTION 12.06. NOTICE OF CERTAIN EVENTS.
If:
(a) the Company shall declare a dividend (or any other
distribution) payable to the holders of Common Stock otherwise than
in cash; or
(b) the Company shall authorize the granting to all holders
of Common Stock of rights to subscribe for or purchase any shares of
stock of any class or of any other rights; or
(c) the Company shall authorize any reclassification or
change of the Common Stock (other than a subdivision or combination
of its outstanding shares of Common Stock), or any consolidation or
merger to which the Company is a party and for which approval of any
stockholders of the Company is required, or the sale, lease, exchange
or other disposition of all or substantially all the property and
assets of the Company; or
(d) there shall be authorized or ordered any voluntary or
involuntary dissolution, liquidation or winding-up of the Company;
then, the Company shall cause to be filed at the office or agency
maintained for the purpose of conversion of the Securities as provided in
Section 5.02, and shall cause to be mailed to each Holder of Securities, in
the manner provided in Section 11.02, at least 20 days before the date
hereinafter specified (or the earlier of the dates hereinafter specified,
in the event that more than one date is specified), a notice stating the
date on which (1) a record is expected to be taken for the purpose of such
dividend, distribution or rights, or if a record is not to be taken, the
date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution or rights are to be determined, or (2) such
reclassification, change, consolidation, merger, sale, lease, exchange or
other disposition, dissolution, liquidation or winding-up is expected to
become effective and the date, if any is to be fixed, as of which it is
expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or other property
deliverable upon such reclassification, change, consolidation, merger,
sale, lease, exchange or other disposition, dissolution, liquidation or
winding-up.
-67-
SECTION 12.07. TAXES ON CONVERSION.
The Company will pay any and all documentary, stamp or similar
taxes payable to the United States of America or any political subdivision or
taxing authority thereof or therein in respect of the issue or delivery of
shares of Common Stock on conversion of Securities pursuant thereto;
PROVIDED, HOWEVER, that the Company shall not be required to pay any tax
which may be payable in respect of any transfer involved in the issue or
delivery of shares of Common Stock in a name other than that of the Holder of
the Securities to be converted (or payment of cash in lieu thereof to a
person other than such Holder) and no such issue or delivery (or payment)
shall be made unless and until the person requesting such issue or delivery
(or payment) has paid to the Company the amount of any such tax or has
established, to the satisfaction of the Company, that such tax has been paid.
The Company extends no protection with respect to any other taxes imposed in
connection with conversion of Securities.
SECTION 12.08. COMPANY TO PROVIDE STOCK.
The Company shall reserve, free from preemptive rights, out of
its authorized but unissued shares, sufficient shares to provide for the
conversion of convertible Securities from time to time as such Securities
are presented for conversion; PROVIDED, HOWEVER, that nothing contained
herein shall be construed to preclude the Company from satisfying its
obligations in respect of the conversion of Securities by delivery of
repurchased shares of Common Stock which are held in the treasury of the
Company.
If any shares of Common Stock to be reserved for the purpose of
conversion of Securities hereunder require registration with or approval of
any governmental authority under any Federal or state law before such
shares may be validly issued or delivered upon conversion, then the Company
covenants that it will in good faith and as expeditiously as possible
endeavor to secure such registration or approval, as the case may be;
PROVIDED, HOWEVER, that nothing in this Section 12.08 shall be deemed to
affect in any way the obligations of the Company to convert Securities into
Common Stock as provided in this Article 12.
Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value, if any, of the
Common Stock, the Company will take all corporate
-68-
action which may, in the opinion of counsel, be necessary in order that the
Company may validly and legally issue fully paid and non-assessable shares of
Common Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock which may
be issued upon conversion of Securities will upon issue be fully paid and
non-assessable by the Company and free of preemptive rights.
SECTION 12.09. DISCLAIMER OF RESPONSIBILITY
FOR CERTAIN MATTERS.
Neither the Trustee, any Conversion Agent nor any agent of
either shall at any time be under any duty or responsibility to any Holder
of Securities to determine whether any facts exist which may require any
adjustment of the Conversion Price or with respect to the Officer's
Certificate referred to in Section 12.04(g), or with respect to the nature
or extent of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee, any Conversion Agent
nor any agent of either shall be accountable with respect to the validity
or value (or the kind or amount) of any shares of Common Stock, or of any
securities or property (including cash), which may at any time be issued or
delivered upon the conversion of any Security; and neither the Trustee, any
Conversion Agent nor any agent of either makes any representation with
respect thereto. Neither the Trustee, any Conversion Agent nor any agent
of either shall be responsible for any failure of the Company to issue,
register the transfer of or deliver any shares of Common Stock or stock
certificates or other securities or property (including cash) upon the
surrender of any Security for the purpose of conversion or, subject to
Section 8.01 and 8.02, to comply with any of the covenants of the Company
contained in this Article 12.
Section 12.10. RETURN OF FUNDS DEPOSITED FOR
REDEMPTION OF CONVERTED SECURITIES.
Any funds which at any time shall have been deposited by the
Company or on its behalf with the Trustee or any Paying Agent for the
purpose of paying the principal of and interest, if any, on any of the
Securities and which shall not be required for such purposes because of the
conversion of such Securities, as provided in this Indenture, shall
forthwith
-69-
after such conversion be repaid to the Company by the Trustee or such Paying
Agent.
ARTICLE 13
SUBORDINATION
SECTION 13.01. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company covenants and agrees that anything in this Indenture
or the Securities of any Series to the contrary notwithstanding, the
indebtedness evidenced by the Securities of each Series is subordinate and
junior in right of payment to all Senior Indebtedness to the extent provided
herein, and each Holder of Securities of each Series, by such Holder's
acceptance thereof, likewise covenants and agrees to the subordination herein
provided and shall be bound by the provisions hereof.
If any default occurs and is continuing in the payment when due,
whether at maturity, upon any redemption, by declaration or otherwise, of any
principal of, interest on, unpaid drawings for letters of credit issued in
respect of, or regularly accruing fees with respect to, any Senior
Indebtedness (a "Payment Default"), no payment of any kind or character shall
be made by or on behalf of the Company or any other person on its or their
behalf with respect to any principal of, interest on or other amounts owing
in respect of the Securities or to acquire any of the Securities for cash,
property or otherwise. Upon the happening of any default or event of default
(other than a Payment Default) (including any event which with the giving of
notice or the lapse of time or both would become an event of default and
including any default or event of default which would result upon any payment
with respect to the Securities) with respect to any Senior Indebtedness, as
such default or event of default is defined therein or in the instrument or
agreement or other document under which it is outstanding, then upon written
notice thereof given to the Company and the Trustee by a holder or holders of
any Senior Indebtedness or their Representative ("Payment Notice"), no
payment shall be made by or on behalf of the Company with respect to the
principal of, premium, if any, or interest on the Securities, during the period
(the "Payment Blockage Period") commencing on the date of such receipt of
such Payment Notice and ending on the earlier of (x) the date, if any, on
which such default is cured or waived or ceases to exist or the Senior
Indebtedness to which such default relates is discharged and (y) the 120th
day after the date of receipt of such Payment Notice. The Company may resume
payments on the Securities after such Payment Blockage Period. Not more than
one Payment Notice may be given in any consecutive 360-day period with
respect to any Senior Indebtedness, irrespective of the number of defaults
with respect to Senior Indebtedness during such period, and the giving of a
Payment Notice will not prevent the payment of an installment of principal of
or interest on the Securities for more 120 days, except that the commencement
of a Payment Blockage Period by any holders of or the trustee for Senior
Indebtedness other than Indebtedness under the Company's revolving loan and
letter of credit facility with The Chase Manhattan Bank, N.A. and a group of
other lenders (the "Bank Credit Facility") (the "Initial Payment Blockage
Period") will not prevent the commencement of a subsequent Payment Blockage
Period (the "Subsequent Payment Blockage Period") by the Agent under the Bank
Credit Facility, PROVIDED, HOWEVER, that in no event may the Subsequent
Payment Blockage Period end later than the 179th day after the date of
receipt of the Payment Notice with respect to the Initial Payment Blockage
Period. Notwithstanding the foregoing, (i) no event of default which existed
or was continuing on the date of any Payment Notice shall be made the basis
for the giving of a subsequent Payment Notice unless all such events of
default shall have been cured or waived for a period of at least 90
consecutive days after such date, and (ii) if the Company or the Trustee
receives any Payment Notice, a similar notice relating to or arising out of
the same default or facts giving rise to such default (whether or not such
default is on the same issue of Senior Indebtedness), unless cured or waived
for such period of at least 90 consecutive days, shall not be effective for
purposes of this paragraph (c).
-70-
Upon any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to
creditors upon any total or partial liquidation, dissolution, winding up,
reorganization, assignment for the benefit of creditors or marshaling of
assets of the Company or in a bankruptcy, reorganization, insolvency,
receivership or other similar proceeding relating to the Company or its
property, whether voluntary or involuntary, all principal of, interest on
and all other amounts due or to become due upon all Senior Indebtedness
shall first be paid in full in cash, or such payment duly provided for to
the satisfaction of the holders of Senior Indebtedness, before any payment
or distribution of any kind or character is made on account of any
principal of, interest on or other amounts owing in respect of the
Securities, or for the acquisition of any of the Securities for cash,
property or otherwise. In the event of any such proceeding, after payment
in full of all sums owing with respect to Senior Indebtedness, the Holders
of the Securities, together with the holders of any obligations of the
Company ranking on a parity with the Securities, shall be entitled to be
paid from the remaining assets of the Company the amounts at the time due
and owing on account of unpaid principal of and interest, if any, on the
Securities and such other obligations before any payment or other
distribution, whether in cash, property or otherwise, shall be made on
account of any Capital Stock or any
-71-
obligations of the Company ranking junior to the Securities and such other
obligations.
If, notwithstanding the foregoing, any payment or distribution
of any character, whether in cash, securities or other property, shall be
received by the Trustee or any Holder in contravention of any of the terms
hereof, such payment or distribution shall be received in trust for the
benefit of, and shall be paid over or delivered and transferred to, the
holders of the Senior Indebtedness then outstanding in accordance with the
priorities then existing among such holders for application to the payment
of all Senior Indebtedness remaining unpaid, to the extent necessary to pay
all such Senior Indebtedness in full. In the event of the failure of the
Trustee or any Holder to endorse or assign any such payment, distribution
or security, each holder of Senior Indebtedness is hereby irrevocably
authorized to endorse or assign the same.
No present or future holder of any Senior Indebtedness shall be
prejudiced in the right to enforce subordination of the indebtedness
evidenced by the Securities by any act or failure to act on the part of the
Company. Nothing contained herein shall impair, as between the Company and
the Holders of Securities of each Series, the obligation of the Company to
pay to such Holders the principal of and interest, if any, on such Securities
or prevent the Trustee or the Holder from exercising all rights, powers and
remedies otherwise permitted by applicable law or hereunder upon a Default or
Event of Default hereunder, all subject to the rights of the holders of the
Senior Indebtedness to receive cash, securities or other property otherwise
payable or deliverable to the Holders.
Senior Indebtedness shall not be deemed to have been paid in
full unless the holders thereof shall have received cash equal to the
amount of such Senior Indebtedness then outstanding. Upon the payment in
full of all Senior Indebtedness, the Holders of Securities of each Series
shall be subrogated to all rights of any holders of Senior Indebtedness to
receive any further payments or distributions applicable to the Senior
Indebtedness until the indebtedness evidenced by the Securities of such
Series shall have been paid in full, and such payments or distributions
received by such Holders, by reason of such subrogation, of cash,
securities or other property which otherwise would be paid or distributed
to the holders of Senior Indebtedness, shall, as between the Company and
its creditors other than the holders of Senior Indebtedness, on the one
hand, and such Holders, on the other hand, be deemed to be a payment
-72-
by the Company on account of Senior Indebtedness, and not on account of the
Securities of such Series.
The provisions of this Section 13.01 shall not impair any
rights, interests, remedies or powers of any secured creditor of the
Company in respect of any security the creation of which is not prohibited
by the provisions of this Indenture.
The securing of any obligations of the Company, otherwise
ranking on a parity with the Securities or ranking junior to the
Securities, shall not be deemed to prevent such obligations from
constituting, respectively, obligations ranking on a parity with the
Securities or ranking junior to the Securities.
SECTION 13.02. RELIANCE ON CERTIFICATE OF LIQUI-
DATING AGENT; FURTHER EVIDENCE AS
TO OWNERSHIP OF SENIOR INDEBTEDNESS.
Upon any payment or distribution of assets of the Company, the
Trustee and the Holders shall be entitled to rely upon an order or decree
issued by any court of competent jurisdiction in which such dissolution or
winding up or liquidation or reorganization or arrangement proceedings are
pending or upon a certificate of the trustee in bankruptcy, receiver,
assignee for the benefit of creditors or other person making such payment
or distribution, delivered to the Trustee or to the Holders, for the
purpose of ascertaining the persons entitled to participate in such
distribution, the holders of the Senior Indebtedness and other indebtedness
of the Company, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 13. In the absence of any such bankruptcy
trustee, receiver, assignee or other person, the Trustee shall be entitled
to rely upon a written notice by a person representing himself to be a
holder of Senior Indebtedness (or a trustee or representative on behalf of
such holder) as evidence that such person is a holder of Senior
Indebtedness (or is such a trustee or representative). If the Trustee
determines, in good faith, that further evidence is required with respect
to the right of any person as a holder of Senior Indebtedness to
participate in any payment or distributions pursuant to this Article 13,
the Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by
such person, as to the extent to which such person is entitled to
participate in such payment or distribution, and as to other facts
pertinent to the
-73-
rights of such persons under this Article 13, and if such evidence is not
furnished, the Trustee may defer any payment to such person pending judicial
determination as to the right of such person to receive such payment.
SECTION 13.03. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article 13 or elsewhere in this
Indenture, or in any of the Securities, shall prevent (a) the Company at
any time, except during the pendency of any of the events described in the
second and third paragraphs of Section 13.01, from making payments of the
principal of or interest, if any, on the Securities, or (b) the application
by the Trustee or any Paying Agent of any moneys deposited with it
hereunder to payments of the principal of or interest, if any, on the
Securities, unless and until the Trustee or such Paying Agent, as the case
may be, shall have timely received the Officer's Certificate or written
notice provided for in Section 13.05.
SECTION 13.04. DISPUTES WITH HOLDERS OF CERTAIN
SENIOR INDEBTEDNESS.
Any failure by the Company to make any payment on or under any
Senior Indebtedness, other than any Senior Indebtedness as to which the
provisions of this Section 13.04 shall have been waived by the Company in the
instrument or instruments by which the Company incurred, assumed, guaranteed
or otherwise created such Senior Indebtedness, shall not be deemed a default
under Section 13.01 if (i) the Company shall be disputing its obligation to
make such payment or perform such obligation, and (ii) either (A) no final
judgment relating to such dispute shall have been issued against the Company
which is in full force and effect and is not subject to further review,
including a judgment that has become final by reason of the expiration of the
time within which a party may seek further appeal or review, or (B) in the
event of a judgment that is subject to further review or appeal has been
issued, the Company shall in good faith be prosecuting an appeal or other
proceeding for review, and a stay of execution shall have been obtained
pending such appeal or review.
SECTION 13.05. TRUSTEE NOT CHARGED WITH KNOWLEDGE
OF PROHIBITION.
Anything in this Article 13 or elsewhere in this Indenture
contained to the contrary notwithstanding, the
-74-
Trustee shall not at any time be charged with knowledge of the existence of
any facts which would prohibit the making of any payment of moneys to or by
the Trustee and shall be entitled to assume conclusively that no such facts
exist and that no event specified in the third paragraph of Section 13.01 has
happened, unless and until the Trustee shall have received an Officer's
Certificate to that effect or notice in writing to that effect signed by or
on behalf of the holder or holders, or their representatives, of Senior
Indebtedness who shall have been certified by the Company or otherwise
established to the reasonable satisfaction of the Trustee to be such holder
or holders or representatives or from any trustee under any indenture
pursuant to which such Senior Indebtedness shall be outstanding; PROVIDED,
HOWEVER, that, if the Trustee shall not have received the Officer's
Certificate or notice provided for in this Section 13.05 at least three
Business Days preceding the date upon which by the terms hereof any such
moneys may become payable for any purpose (including, without limitation, the
payment of either the principal of or interest, if any, on any Security),
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such moneys and apply the same
to the purpose for which they were received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
preceding such date. The Company shall give prompt written notice to the
Trustee and to each Paying Agent of any facts which would prohibit any
payment of moneys to or by the Trustee or any Paying Agent, and the Trustee
shall not be charged with knowledge of the curing of any default or the
elimination of any other fact or condition preventing such payment or
distribution unless and until the Trustee shall have received an Officer's
Certificate to such effect.
SECTION 13.06. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of Securities by such Holder's acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may
be necessary or appropriate to effectuate the subordination as between such
Holder and holders of Senior Indebtedness as provided in this Article 13
and appoints the Trustee its attorney-in-fact for any and all such
purposes.
SECTION 13.07. RIGHTS OF TRUSTEE AS HOLDER OF
SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all the rights set forth in
this Article 13 with respect to any Senior
-75-
Indebtedness which may at the time be held by it, to the same extent as any
other holder of Senior Indebtedness and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder. Nothing in this
Article 13 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 8.07.
SECTION 13.08. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article 13 shall in such case (unless the
context shall otherwise require) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and purposes
as if the Paying Agent were named in this Article 13 in addition to or in
place of the Trustee; PROVIDED, HOWEVER, that Sections 13.05 and 13.07
shall not apply to the Company if it acts as Paying Agent.
SECTION 13.09. SUBORDINATION RIGHTS NOT IMPAIRED
BY ACTS OR OMISSIONS OF THE COMPANY
OR HOLDERS OF SENIOR INDEBTEDNESS.
No right of any present or future holders of any Senior
Indebtedness to enforce subordination as herein provided shall at any time
in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or be otherwise charged with. The
holders of Senior Indebtedness may, at any time or from time to time and in
their absolute discretion, change the manner, place or terms of payment,
change or extend the time of payment of, or renew or alter, any such Senior
Indebtedness, or amend or supplement any instrument pursuant to which any
such Senior Indebtedness is issued or by which it may be secured, or
release any security therefor, or exercise or refrain from exercising any
other of their rights under the Senior Indebtedness, including, without
limitation, the waiver of default thereunder, all without notice to or
assent from the Holders of the Securities or the Trustee and without
affecting the obligations of the Company, the Trustee or the Holders of
Securities under this Article 13.
-76-
SECTION 13.10. TRUSTEE NOT FIDUCIARY FOR HOLDERS
OF SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to
the holder of the Senior Indebtedness, and shall not be liable to any such
holders if it shall mistakenly pay over or distribute money or assets to
Securityholders or the Company.
-77-
SIGNATURES
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 the date first written above.
FOREST OIL CORPORATION
[SEAL]
Attest: By:
----------------------------
[SEAL]
Attest: By:
----------------------------- ----------------------------
EXHIBIT A
[FORM OF FACE OF SECURITY]
[If the Holder of this Security (as indicated below) is The
Depository Trust Company ("DTC") or a nominee of DTC, this Security is a
Global Security and the following two legends apply:
Unless this Security is presented by an authorized
representative of The Depository Trust Company ("DTC"), ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ to the issuer or its agent for registration of transfer,
exchange or payment,l and such Security issued is registered in the name of
CEDE & CO., or such other name as requested by an authorized representative
of DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL, since the registered owner hereof, CEDE &
CO., has an interest herein.
Unless it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred except as
a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC or by DTC or any such nominee to a successor of DTC or a
nominee of such successor.]
[The following is to be included if the Security is an Original
Issue Discount Security:]
[FOR PURPOSES ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
INTERNAL REVENUE CODE OF 1986, AS AMENDED: (I) THE ISSUE DATE OF THIS
SECURITY IS ____________; (II) THE YIELD TO MATURITY IS ___%; (III) THE
ORIGINAL ISSUE DISCOUNT PER $______ FACE AMOUNT AT WHICH THE SECURITY IS
ISSUED IS $______; AND (IV) THE [EXACT] [APPROXIMATE] METHOD HAS BEEN USED
TO DETERMINE YIELD FOR THE ACCRUAL PERIOD BEGINNING ____________ AND ENDING
____________ AND THE AMOUNT OF THE ORIGINAL ISSUE DISCOUNT PER $______ FACE
AMOUNT ALLOCABLE TO THE ACCRUAL PERIOD BEGINNING ____________ AND ENDING
____________ IS $______].
-2-
FOREST OIL CORPORATION
[Title of Security]
Rate of Interest Maturity Date Original Issue Date
---------------- ------------- -------------------
No. $
------------------------- ----------------------
Forest Oil Corporation, a corporation duly organized and
existing under the laws of the State of New York (herein called the
"Company"), for value received, hereby promises to pay to
or registered assigns, the principal sum of on the Maturity Date
shown above, and to pay interest thereon, at the annual rate of interest
shown above, from the Original Issue Date shown above or from the most
recent Interest Payment Date (as hereinafter defined) to which interest has
been paid or duly provided for, payable semi-annually on and
of each year and at maturity (an "Interest Payment Date"),
commencing on the first such date after the Original Issue Date, except
that if the Original Issue Date is on or after a Regular Record Date but
before the next Interest Payment Date, interest payments will commence on
the second Interest Payment Date following the Original Issue Date.
[reference to currency[ies] of payment and currency exchange
arrangements, if applicable.]
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be
paid to the person in whose name this [name of Security] is registered at
the close of business on the Regular Record Date for any such Interest
Payment Date, which shall be the fifteenth calendar day (whether or not a
Business Day) preceding the applicable Interest Payment Date. Any such
interest not so punctually paid or duly provided for, and any interest
payable on such defaulted interest (to the extent lawful), will forthwith
cease to be payable to the Holder on such Regular Record Date and shall be
paid to the person in whose name this [name of Security] is registered at
the close of business on a special record date for the payment of such
defaulted interest to be fixed by the Company, notice of which shall be
given to Holders of [name of Series] not less than 15 days prior to such
special record date. Payment of the
-3-
principal of and interest on this [name of Security] will be made at the
agency of the Company maintained for that purpose in [New York, New York
or other place of payment] and at any other office or agency maintained by
the Company for such purpose, in [reference to United States dollars
or other currency of payment]; PROVIDED, HOWEVER, that at the option of the
Company payment of interest, other than interest due on the Maturity Date,
may be made by check mailed to the address of the person entitled thereto
as such address shall appear in the Security Register. [Include the following,
if applicable:] Payments on the Maturity Date will be made in immediately
available funds against presentment of this [name of Security].
Reference is hereby made to the further provisions of this
[name of Security] set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual
signature, this [name of Security] shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the FOREST OIL CORPORATION has caused this
instrument to be executed in its corporate name by the facsimile signature
of its duly authorized officers and has caused a facsimile of its corporate
seal to be affixed hereunto or imprinted hereon.
FOREST OIL CORPORATION
ATTEST: By:
------------------------ ------------------------
[Assistant] Secretary [Title of Officer]
-4-
DATED:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the [name of Series] referred to in the
within-mentioned Indenture.
By:
---------------------------
Authorized Signatory
[REVERSE SIDE]
FOREST OIL CORPORATION
[Name of Security]
This [name of Security] is one of a duly authorized issue of
[name of Securities] of the Company (which term includes any successor
corporation under the Indenture hereinafter referred to) designated as its
[title of Series] (the "[name of Series]"), issued or to be
issued pursuant to an Indenture, dated as of , 199_ (the
"Indenture"), between the Company and _________________ as Trustee (the
"Trustee," which term includes any successor trustee under the Indenture);
and under [reference to Authorizing Resolution and/or supplemental
indenture (if any) relating to the Series]. The terms of this [name of
Security] include those stated in the Indenture and [reference to
Authorizing Resolution and/or supplemental indenture (if any) relating to
the Series] and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as in effect on the date of the Indenture.
Reference is hereby made to the Indenture and all [further] supplemental
indentures thereto for a statement of the respective rights, limitation of
rights, duties and immunities thereunder of the Company, the Trustee and
the Holders and of the terms upon which the [name of Security] are, and are
to be, authenticated and delivered.
This [name of Series] is a Series of Securities issued or to be
issued by the Company under the Indenture, and this Series is limited in
aggregate principal amount to $ . The Indenture provides that the
Securities of the
-5-
Company referred to therein ("Securities"), including the [name of Series],
may be issued in one or more Series, which different Series may be issued in
such aggregate principal amounts and on such terms (including, but not
limited to, terms relating to interest rate or rates, provisions for
determining such interest rate or rates and adjustments thereto, maturity,
redemption (optional and mandatory), sinking fund, covenants and Events of
Default) as may be provided in or pursuant to the Authorizing Resolutions
and/or supplemental indenture (if any) relating to the several Series.
The [name of Series] are subordinated in right of payment, in
the manner and to the extent set forth in the Indenture, to the prior
payment in full of all Senior Indebtedness (as defined in the Indenture).
Each Holder by accepting a Security agrees to such subordination and
authorizes the Trustee to give it effect.
[The following to be included if the Securities are not
redeemable prior to maturity.]
This [name of Security] may not be redeemed prior to its
Maturity Date.
[The following paragraph, or other appropriate redemption
provisions, to be included if the Securities are Redeemable Securities:]
The [name of Series] are subject to redemption upon not less
than 30 nor more than 60 days' notice by mail, [the following clause to be
included if there is a Sinking Fund:] [(1) on [annual Sinking Fund
Redemption Date] in each year commencing with the year [year of first
Sinking Fund payment] through operation of the Sinking Fund at a Redemption
Price equal to their principal amount and (2)] [at any time or from time to
time] in whole or in part, at the election of the Company at a Redemption
Price equal to the percentage set forth below of the principal amount to be
redeemed for the respective twelve-month periods beginning
[ ] of the years indicated:
[Schedule of Redemption Prices]
-6-
and thereafter at 100% of the principal amount thereof, together in each
case with accrued interest to the Redemption Date.
[The following paragraph, or other appropriate Sinking Fund
provision, to be included if there is a Sinking Fund for the Series:]
The Sinking Fund provides for the redemption on [first Sinking
Fund Redemption Date] and on [annual Sinking Fund Redemption Date] in each
year thereafter through [year of final Sinking Fund date] of not less than
[minimum required Sinking Fund redemption amount] principal amount not
more than [maximum permitted Sinking Fund redemption amount] principal
amount of [name of Series], [name of Series] purchased, acquired or redeemed
by the Company otherwise than by redemption through the Sinking Fund may be
credited against Sinking Fund requirements to the extent not previously so
credited.
[The following paragraph to be included if the Securities are
Redeemable Securities or Sinking Fund Securities:]
If an event of redemption of this [name of Security] in part
only, a new [name of Security] or [name of Series] for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
surrender hereof.
[The following paragraph to be included if the Securities are
not Original Issue Discount Securities:]
If an Event of Default, as defined in the Indenture and in the
Authorizing Resolution and/or supplemental indenture (if any) relating to
the [name of Series] (if there shall be any additional Events of Default
specified in respect of the [name of Series]), shall occur and be
continuing, the principal of all the [name of Series] may be declared due
and payable in the manner and with the effect provided in the Indenture.
[If the Securities are Original Issue Discount Securities,
insert schedule as to amounts which are payable on acceleration under
Section 7.02 and provable in bankruptcy under Section 7.09 from time to
time.]
[If Securities are convertible, add appropriate summary of
conversion terms and form for electing to convert.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the [name of
Series] under the Indenture at any time
-7-
by the Company and the Trustee with the consent of the Holders of a majority
in aggregate principal amount of the Securities affected thereby, voting as a
single class (which may include the [name of Series]), at the time
outstanding. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate principal amount of the Securities at
the time outstanding to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this
[name of Security] shall be conclusive and binding upon such Holder and upon
all future Holders of this [name of Security] and of any [name of Security]
issued upon the registration of transfer hereof or in exchange herefor in
lieu hereof, whether or not notation of such consent or waiver is made upon
this [name of Security].
The Indenture provides that no Holder may pursue any remedy
under the Indenture unless the Trustee shall have failed to act after
notice of an Event of Default and written request by Holders of at least
25% in principal amount of the [name of Securities] of the applicable
Series and the offer to the Trustee of indemnity satisfactory to it;
however, such provision does not affect the right to ▇▇▇ for enforcement of
any overdue payment on any Security.
No reference herein to the Indenture and no provision of this
[name of Security] or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the principal
of and interest on this [name of Security] at the times, places and rates,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this [name of Security] is registrable
in the Security Register upon surrender of this [name of Security] for
registration of transfer at the agency of the Company provided for that
purpose duly endorsed by, or accompanied by a written instrument of
transfer in substantially the form accompanying this [name of Security]
duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new [name of Series], of authorized
denominations and for the same aggregate principal amount, will be issued
to the designated transferee or transferees.
The [name of Series] are issuable only in registered form
without coupons in denominations of [currency and minimum
-8-
denomination] and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the
[name of Series] are exchangeable for a like aggregate principal amount of
[name of Series] of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges pursuant to Section 2.11, 3.08
or 10.05 in which case such transfer taxes or similar governmental charges
shall be paid by the Company).
Prior to due presentment of this [name of Security] for
registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the person in whose name this
[name of Security] is registered as the owner hereof for all purposes,
whether or not this [name of Security] be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
[Reference to Foreign Currencies]
All terms used in this [name of Security] which are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
Customary abbreviations may be used in the name of a [name of
Security] holder or any assignee, such as: TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right
of survivorship and not as tenants in common), CUST (= Custodian) and
U/G/M/A (= Uniform Gifts to Minors Act).
The Company will furnish to any [name of Security] holder of
record, upon written request, without charge, a copy of the Indenture.
Requests may be made to: Forest Oil Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Secretary.
-9-
ASSIGNMENT FORM
If you the holder want to assign this [name of Security], fill
in the form below and have your signature guaranteed:
I or we assign and transfer this [name of Security] to:
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignees)
and irrevocably appoint, ______________________________________ agent to
transfer this [name of Security] on the books of the Company. The agent
may substitute another to act for him.
Dated: Signed:
------------------------ ----------------------
-------------------------------
(Sign exactly as name appears
on other side of this [name of
Security])
Signature Guarantee:
-----------------------------------------------------
NOTICE: Signature(s) must be guaranteed by a member firm of the New York
Stock Exchange or a commercial bank or trust company.