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EXHIBIT 4.19
________________________________________________________________________________
NEWFIELD EXPLORATION COMPANY
to
FIRST UNION NATIONAL BANK
as Trustee
_________________________________________________________
JUNIOR CONVERTIBLE SUBORDINATED INDENTURE
DATED AS OF _____________, ____
____% CONVERTIBLE SUBORDINATED DEBENTURES
DUE ________________
________________________________________________________________________________
2
Reconciliation and tie between the Trust Indenture Act of 1939
(including cross-references to provisions of Sections 310 to and including 317
which, pursuant to Section 318(c) of the Trust Indenture Act of 1939, as
amended by the Trust Reform Act of 1990, are a part of and govern the Junior
Convertible Subordinated Indenture whether or not physically contained therein)
and the Junior Convertible Subordinated Indenture, dated as of __________ __,
____.
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
--------------- ---------
Section 310(a)(1), (2) and (5) . . . . . . . . . . . . . . . . . . . . . . 6.9
(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.8, 6.10
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.13
(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(a)
Section 312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.1
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . .7.2(a), 7.2(b)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.2(c)
Section 313(a) . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(a), 7.3(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(a)
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.3(c)
Section 314(a)(1), (2),(3) and (4) . . . . . . . . . . . . . . . . . . . . 7.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.2
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
Section 315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.2
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(b)
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.1(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.14
Section 316(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.12
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.13
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.8
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.4(f)
Section 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.3
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.4
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.3
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.7
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Convertible Subordinated Indenture.
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.2 Compliance Certificate and Opinions . . . . . . . . . . . . . 11
SECTION 1.3 Forms of Documents Delivered to Trustee . . . . . . . . . . . 12
SECTION 1.4 Acts of Holders . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 1.5 Notices, Etc. to Trustee and Company . . . . . . . . . . . . . 13
SECTION 1.6 Notice to Holders; Waiver . . . . . . . . . . . . . . . . . . 14
SECTION 1.7 Conflict with Trust Indenture Act . . . . . . . . . . . . . . 14
SECTION 1.8 Effect of Headings and Table of Contents . . . . . . . . . . . 14
SECTION 1.9 Successors and Assigns . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.10 Separability Clause . . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.11 Benefits of Indenture . . . . . . . . . . . . . . . . . . . . 14
SECTION 1.12 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 1.13 Non-Business Days . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE 2
DEBENTURE FORM
SECTION 2.1 Forms Generally . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 2.2 Form of Face of Debenture . . . . . . . . . . . . . . . . . . 15
SECTION 2.3 Form of Reverse of Debenture . . . . . . . . . . . . . . . . . 16
SECTION 2.4 Additional Provisions Required in Global Debenture . . . . . . 23
SECTION 2.5 Form of Trustee's Certificate of Authentication . . . . . . . 23
SECTION 2.6 Initial Issuance to Property Trustee . . . . . . . . . . . . . 23
ARTICLE 3
THE DEBENTURES
SECTION 3.1 Amount of Debentures . . . . . . . . . . . . . . . . . . . . . 23
SECTION 3.2 Denominations . . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.3 Execution, Authentication, Delivery and Dating . . . . . . . . 24
SECTION 3.4 Temporary Debentures . . . . . . . . . . . . . . . . . . . . . 24
SECTION 3.5 Registration, Transfer and Exchange . . . . . . . . . . . . . 25
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debentures . . . . . . . 26
SECTION 3.7 Payment of Interest; Interest Rights Preserved . . . . . . . . 27
SECTION 3.8 Persons Deemed Owners . . . . . . . . . . . . . . . . . . . . 28
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SECTION 3.9 Cancellation . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 3.10 Computation of Interest . . . . . . . . . . . . . . . . . . 28
SECTION 3.11 Deferrals of Interest Payment Dates . . . . . . . . . . . . 29
SECTION 3.12 Right of Set-off . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.13 Agreed Tax Treatment . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.14 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.15 Global Security . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture . . . . . . . . . . 32
SECTION 4.2 Application of Trust Money . . . . . . . . . . . . . . . . . 33
ARTICLE 5
REMEDIES
SECTION 5.1 Events of Default . . . . . . . . . . . . . . . . . . . . . 33
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment . . . . . 34
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 5.4 Trustee May File Proofs of Claim . . . . . . . . . . . . . . 36
SECTION 5.5 Trustee May Enforce Claim Without Possession of Debentures . 37
SECTION 5.6 Application of Money Collected . . . . . . . . . . . . . . . 37
SECTION 5.7 Limitation on Suits . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.8 Unconditional Right of Holders to Receive Principal,
Premium and Interest . . . . . . . . . . . . . . . . . . . . 38
SECTION 5.9 Restoration of Rights and Remedies . . . . . . . . . . . . . 39
SECTION 5.10 Rights and Remedies Cumulative . . . . . . . . . . . . . . . 39
SECTION 5.11 Delay or Omission Not Waiver . . . . . . . . . . . . . . . . 39
SECTION 5.12 Control by Holders . . . . . . . . . . . . . . . . . . . . . 39
SECTION 5.13 Waiver of Past Defaults . . . . . . . . . . . . . . . . . . 40
SECTION 5.14 Undertaking for Costs . . . . . . . . . . . . . . . . . . . 41
SECTION 5.15 Waiver of Usury, Stay, or Extension Laws . . . . . . . . . . 41
ARTICLE 6
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities . . . . . . . . . . . . 41
SECTION 6.2 Notice of Defaults . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6.3 Certain Rights of Trustee . . . . . . . . . . . . . . . . . 43
SECTION 6.4 Not Responsible for Recitals or Issuance of Debentures . . . 44
SECTION 6.5 May Hold Debentures . . . . . . . . . . . . . . . . . . . . 44
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SECTION 6.6 Money Held in Trust . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6.7 Compensation and Reimbursement . . . . . . . . . . . . . . . . 45
SECTION 6.8 Disqualification; Conflicting Interests . . . . . . . . . . . 46
SECTION 6.9 Corporate Trustee Required; Eligibility . . . . . . . . . . . 46
SECTION 6.10 Resignation and Removal; Appointment of Successor . . . . . . 46
SECTION 6.11 Acceptance of Appointment by Successor . . . . . . . . . . . . 48
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 6.13 Preferential Collection of Claims Against Company . . . . . . 48
SECTION 6.14 Appointment of Authenticating Agent . . . . . . . . . . . . . 48
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Names and Addresses of Holders . . . . . . 50
SECTION 7.2 Preservation of Information; Communications to Holders . . . . 50
SECTION 7.3 Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 7.4 Reports by Company . . . . . . . . . . . . . . . . . . . . . . 51
ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms . . . . . 52
SECTION 8.2 Successor Corporation Substituted . . . . . . . . . . . . . . 52
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders . . . . . . 53
SECTION 9.2 Supplemental Indentures with Consent of Holders . . . . . . . 54
SECTION 9.3 Execution of Supplemental Indentures . . . . . . . . . . . . . 55
SECTION 9.4 Effect of Supplemental Indentures . . . . . . . . . . . . . . 55
SECTION 9.5 Conformity with Trust Indenture Act . . . . . . . . . . . . . 56
SECTION 9.6 Reference in Debentures to Supplemental Indentures . . . . . . 56
ARTICLE 10
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest . . . . . . . . . . 56
SECTION 10.2 Maintenance of Office or Agency . . . . . . . . . . . . . . . 56
SECTION 10.3 Money for Debenture Payments to Be Held in Trust . . . . . . . 56
SECTION 10.4 Payment of Taxes and Other Claims . . . . . . . . . . . . . . 58
SECTION 10.5 Statement as to Compliance . . . . . . . . . . . . . . . . . . 58
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SECTION 10.6 Waiver of Certain Covenants . . . . . . . . . . . . . . . . . 58
SECTION 10.7 Additional Sums . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 10.8 Additional Covenants . . . . . . . . . . . . . . . . . . . . . 59
SECTION 10.9 Payment of Expenses of the Trust . . . . . . . . . . . . . . . 60
ARTICLE 11
REDEMPTION OR EXCHANGE OF DEBENTURES
SECTION 11.1 Election to Redeem; Notice to Trustee . . . . . . . . . . . . 60
SECTION 11.2 Selection of Debentures to Be Redeemed . . . . . . . . . . . . 61
SECTION 11.3 Notice of Redemption . . . . . . . . . . . . . . . . . . . . . 61
SECTION 11.4 Deposit of Redemption Price . . . . . . . . . . . . . . . . . 62
SECTION 11.5 Debentures Payable on Redemption Date . . . . . . . . . . . . 62
SECTION 11.6 Debentures Redeemed in Part . . . . . . . . . . . . . . . . . 63
SECTION 11.7 Mandatory Redemption . . . . . . . . . . . . . . . . . . . . . 63
SECTION 11.8 Optional Redemption . . . . . . . . . . . . . . . . . . . . . 63
SECTION 11.9 Exchange of Trust Securities for Debentures . . . . . . . . . 64
ARTICLE 12
SUBORDINATION OF DEBENTURES
SECTION 12.1 Debentures Subordinate to Senior Debt . . . . . . . . . . . . 65
SECTION 12.2 Payment Over of Proceeds Upon Dissolution, Etc. . . . . . . . 65
SECTION 12.3 Prior Payment to Senior Debt upon Acceleration of
Debentures . . . . . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 12.4 No Payment When Senior Debt in Default . . . . . . . . . . . . 67
SECTION 12.5 Payment Permitted If No Default . . . . . . . . . . . . . . . 67
SECTION 12.6 Subrogation to Rights of Holders of Senior Debt . . . . . . . 68
SECTION 12.7 Provisions Solely to Define Relative Rights . . . . . . . . . 68
SECTION 12.8 Trustee to Effectuate Subordination . . . . . . . . . . . . . 68
SECTION 12.9 No Waiver of Subordination Provisions . . . . . . . . . . . . 69
SECTION 12.10 Notice to Trustee . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 12.11 Reliance on Judicial Order or Certificate of Liquidating
Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 12.12 Trustee Not Fiduciary for Holders of Senior Debt . . . . . . . 69
SECTION 12.13 Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights . . . . . . . . . . . . . . . . . . . . . . . 69
SECTION 12.14 Article Applicable to Paying Agents . . . . . . . . . . . . . 70
SECTION 12.15 Certain Conversions or Exchanges Deemed Payment . . . . . . . 70
ARTICLE 13
CONVERSION OF DEBENTURES
SECTION 13.1 Conversion Rights . . . . . . . . . . . . . . . . . . . . . . 70
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SECTION 13.2 Conversion Procedures . . . . . . . . . . . . . . . . . . . . 70
SECTION 13.3 Expiration of Conversion Rights . . . . . . . . . . . . . . . 73
SECTION 13.4 Conversion Price Adjustments . . . . . . . . . . . . . . . . . 73
SECTION 13.5 Fundamental Change . . . . . . . . . . . . . . . . . . . . . . 78
SECTION 13.6 Notice of Adjustments of Conversion Price . . . . . . . . . . 80
SECTION 13.7 Prior Notice of Certain Events . . . . . . . . . . . . . . . . 80
SECTION 13.8 Certain Additional Rights . . . . . . . . . . . . . . . . . . 81
SECTION 13.9 Restrictions on Company Common Stock Issuable Upon
Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . 81
SECTION 13.10 Trustee Not Responsible for Determining Conversion Price
or Adjustments . . . . . . . . . . . . . . . . . . . . . . . . 82
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JUNIOR CONVERTIBLE SUBORDINATED INDENTURE, dated as of _________
__, ____ between Newfield Exploration Company., a Delaware corporation (the
"Company") having its principal office at ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇., ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, and FIRST UNION NATIONAL BANK, a national banking
association ("First Union"), 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 of its _____% Convertible
Subordinated Debentures (the "Debentures") of substantially the tenor
hereinafter provided which evidence loans made to the Company of the proceeds
from the issuance by Newfield Financial Trust __, a Delaware business trust
(the "Trust"), of preferred trust interests in the Trust (the "Preferred
Securities") and common interests in the Trust (the "Common Securities"), and
to provide the terms and conditions upon which the Debentures are to be
authenticated, issued and delivered.
All things necessary to make the Debentures, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done.
NOW THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Debentures by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Debentures, as
follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions. For all purpose of this Indenture,
except as otherwise expressly provided or unless the context otherwise
requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and the term "generally accepted accounting
principles" with respect to any computation required or permitted
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hereunder shall mean such accounting principles which are generally
accepted at the date or time of such computation; and
(d) the words "herein" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Additional Interest" means the interest, if any, that shall
accrue on any interest on the Debentures that is in arrears for more than one
interest payment period or not paid during any Extension Period, which in
either case (to the extent permitted by law) shall accrue at the stated rate
per annum specified or determined as specified in such Debenture and compounded
quarterly.
"Additional Sums" has the meaning specified in Section 10.7.
"Additional Taxes" means the sum of any additional taxes, duties
and other governmental charges to which the Trust has become subject from time
to time as a result of a Tax Event.
"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; provided, however, that an Affiliate
of the Company shall be deemed not to include the Trust to which Debentures
have been issued. For the purposes of this definition, "control" when used with
respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Applicable Price" means (i) in the case of a Non-Stock
Fundamental Change in which the holders of Company Common Stock receive only
cash, the amount of cash received by the holder of one share of Company Common
Stock and (ii) in the event of any other Non-Stock Fundamental Change or any
Common Stock Fundamental Change, the average of the Closing Prices for Company
Common Stock during the ten trading days prior to and including the record date
for the determination of the holders of Company Common Stock entitled to
receive such securities, cash, or other property in connection with such Non-
Stock Fundamental Change or Common Stock Fundamental Change or, if there is no
such record date, the date upon which the holders of Company Common Stock shall
have the right to receive such securities, cash, or other property, in each
case as adjusted in good faith by the Company to appropriately reflect any of
the events referred to in Section 13.4.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Debentures.
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"Board of Directors" means either the board of directors of the
Company or any committee of that board duly authorized to act hereunder.
"Board Resolution" means a copy of the resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors, or such committee of the Board of Directors
or officers of the Company to which authority to act on behalf of the Board of
Directors has been delegated, and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday or Sunday or a
day on which banking institutions in the City of New York are authorized or
required by law or executive order to remain closed or a day on which the
Corporate Trust Office of the Trustee, or the principal office of the Property
Trustee under the Trust Agreement, is closed for business.
"Closing Price" means on any day the reported last sale price on
such day or, in case no sale takes place on such day, the average of the
reported closing bid and asked prices in each case on the NYSE Consolidated
Transactions Tape or, if the stock is not listed or admitted to trading on such
Exchange, on the principal national securities exchange on which such stock is
listed or admitted to trading or, if not listed or admitted to trading on any
national securities exchange, the average of the closing bid and asked prices
as furnished by any NYSE member firm, selected by the Trustee for that purpose.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or if at any time after the execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"Common Securities" has the meaning specified in the first
recital of this Indenture.
"Common Stock Fundamental Change" means any Fundamental Change in
which more than 50% of the value (as determined in good faith by the Board of
Directors) of the consideration received by holders of Company Common Stock
consists of common stock that for each of the ten consecutive trading days
prior to the record date for the determination of the holders of Company Common
Stock entitled to receive such common stock or, if there is no such record
date, the date on which the holders of Company Common Stock shall have the
right to receive such common stock, has been admitted for listing or admitted
for listing subject to notice of issuance on a national securities exchange or
quoted on the Nasdaq National Market; provided, however, that a Fundamental
Change shall not be a Common Stock Fundamental Change unless either (i) the
Company continues to exist after the occurrence of such Fundamental Change and
the outstanding Preferred Securities continue to exist as outstanding Preferred
Securities or (ii) not later than the occurrence of such Fundamental Change,
the outstanding Preferred Securities are converted into or exchanged for shares
of convertible preferred stock of an entity succeeding to the business of the
Company or a subsidiary thereof, which convertible preferred stock has powers,
preferences, and
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relative, participating, optional, or other rights, and qualifications,
limitations, and restrictions, substantially similar to those of the Preferred
Securities.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Common Stock" means common stock, par value $.01 per
share, of the Company.
"Company Request" and "Company Order" means, respectively, the
written request or order signed in the name of the Company by its Chairman of
the Board, its Vice Chairman, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Controller, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Conversion Agent" has the meaning specified in Section 13.2.
"Conversion Date" has the meaning specified in Section 13.2.
"Conversion Price" has the meaning specified in Section 13.1.
"Corporate Trust Office" means the principal office of the
Trustee at which at any particular time its corporate trust business shall be
administered, which office shall be located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or such other address as the
Trustee may give notice thereof to the Company, Attention: Corporate Trustee
Administration.
"Current Market Price" means for any day the last reported sale
price, regular way, on such day of Company Common Stock, or, if no sale takes
place on such day, the average of the reported closing bid and asked prices on
such day, regular way, in either case as reported on the NYSE Consolidated
Transactions Tape, or, if Company Common Stock is not listed or admitted to
trading on the NYSE on such day, on the principal national securities exchange
on which Company Common Stock is listed or admitted to trading, if Company
Common Stock is listed on a national securities exchange, or the Nasdaq
National Market, or, if Company Common Stock is not quoted or admitted to
trading on such quotation system, on the principal quotation system on which
Company Common Stock may be listed or admitted to trading or quoted, or, if not
listed or admitted to trading or quoted on any national securities exchange or
quotation system, the average of the closing bid and asked prices of Company
Common Stock in the over-the-counter market on the day in question as reported
by the National Quotation Bureau Incorporated, or a similar generally accepted
reporting service, or, if not so available in such manner, as furnished by any
NYSE member firm selected from time to time by the Board of Directors for that
purpose or, if not so available in such manner, as otherwise determined in good
faith by the Board of Directors.
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"Debentures" or "Debenture" means any debt securities or debt
security, as the case may be, authenticated and delivered under this Indenture.
"Debt" means, with respect to any Person, whether recourse is to
all or a portion of the assets of such Person and whether or not contingent,
(i) every obligation of such Person for money borrowed; (ii) every obligation
of such Person evidenced by bonds, debentures, notes or other similar
instruments, including obligations incurred in connection with the acquisition
of property, assets or businesses; (iii) every reimbursement obligation of such
Person with respect to letters of credit, bankers' acceptances or similar
facilities issued for the account of such Person; (iv) every obligation of such
Person issued or assumed as the deferred purchase price of property or services
(but excluding trade accounts payable or accrued liabilities arising in the
ordinary course of business); (v) every capital lease obligation of such
Person, and (vi) every obligation of the type referred to in clauses (i)
through (v) of another Person and all dividends of another Person the payment
of which, in either case, such Person has guaranteed or is responsible for or
liable, directly or indirectly, as obligor or otherwise.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means, with respect to the Debentures issuable or
issued in whole or in part in the form of one or more Global Debentures, the
Person designated as Depositary by the Company (or any successor thereto).
"Dollar" means the currency of the United States of America as at
the time of payment is legal tender for the payment of public and private
debts.
"Events of Default" has the meaning specified in Article 5.
"Expiration Time" has the meaning specified in Section 13.4(e).
"Extension Period" has the meaning specified in Section 3.11.
"Fundamental Change" means the occurrence of any Transaction or
event in connection with a plan pursuant to which all or substantially all of
Company Common Stock shall be exchanged for, converted into, acquired for, or
constitute solely the right to receive securities, cash, or other property
(whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization, or
otherwise); provided, that, in the case of a plan involving more than one such
Transaction or event, for purposes of adjustment of the conversion price, such
Fundamental Change shall be deemed to have occurred when substantially all of
Company Common Stock shall be exchanged for, converted into, or acquired for or
constitute solely the right to receive securities, cash, or other property, but
the adjustment shall be based upon consideration that a holder of Company
Common Stock received in such Transaction or event as a result of which more
than 50% of Company Common Stock shall have been exchanged
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for, converted into, or acquired for or constitute solely the right to receive
securities, cash, or other property.
"Global Debenture" means a Debenture in the form prescribed in
Section 2.4 evidencing all or part of the Debentures, issued to the Depositary
or its nominee, and registered in the name of such Depositary or its nominee.
"Guarantee" means the guarantee by the Company of distributions
on the Preferred Securities of the Trust to the extent provided in the
Guarantee Agreement, substantially in the form attached hereto as Annex C, as
amended from time to time.
"Holder" means a Person in whose name a Debenture is registered
in the Securities Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means as to the Debentures the Stated
Maturity of an installment of interest on such Debentures.
"Interest Rate" means the rate of interest specified or
determined as specified in each Debenture as being the rate of interest payable
on such Debenture.
"Investment Company Event" means, in respect of the Trust, the
receipt by the Property Trustee, on behalf of the Trust, of an Opinion of
Counsel, rendered by a law firm having a national tax and securities practice
(which Opinion of Counsel shall not have been rescinded by such law firm), to
the effect that, as a result of the occurrence of a change in law or regulation
or a change in interpretation or application of law or regulation by any
legislative body, court, governmental agency or regulatory authority (a "Change
in 1940 Act Law"), there is more than an insubstantial risk that the Trust is
or will be considered an "investment company" that is required to be registered
under the 1940 Act, which Change in 1940 Act Law becomes effective on or after
the date of original issuance of the Preferred Securities of the Trust.
"Junior Subordinated Payment" has the meaning specified in
Section 12.2.
"Maturity" when used with respect to the Debentures, means the
date on which the principal of the Debentures become due and payable as herein
provided, whether at the Stated Maturity or by declaration of acceleration,
call or redemption or otherwise.
"1940 Act" means the Investment Company Act of 1940, as amended.
"Non Book-Entry Preferred Securities" has the meaning specified
in Section 3.15.
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▇▇
"▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇" means any Fundamental Change other
than a Common Stock Fundamental Change.
"Notice of Conversion" means the notice given by a Holder of
Preferred Securities to the Conversion Agent directing the Conversion Agent to
exchange such Preferred Securities for Debentures and to convert such
Debentures into Company Common Stock on behalf of such holder.
"Notice of Default" has the meaning specified in Section 5.1(c).
"NYSE" means the New York Stock Exchange.
"Officers' Certificate" means a certificate signed by (i) the
Chairman, Chief Executive Officer, President or a Vice President, and by (ii)
the Treasurer, an Assistant Treasurer, the Controller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, the Trust, or the Trustee, but who may be an
employee thereof, and who shall be reasonably acceptable to the Trustee.
"Outstanding" means, as of the date of determination, all
Debentures theretofore authenticated and delivered under this Indenture,
except:
(i) Debentures theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debentures for whose payment money in the necessary amount
has been theretofore irrevocably deposited with the Trustee or any
Paying Agent in trust for the Holders of such Debentures; and
(iii) Debentures in substitution for or in lieu of which other
Debentures have been authenticated and delivered or which have been paid
pursuant to Section 3.6, or which have been converted into Company
Common Stock pursuant to Section 13.1, unless proof satisfactory to the
Trustee is presented that any Debentures are held by Holders in whose
hands such Debentures are valid, binding and legal obligations of the
Company; provided, however, that in determining whether the Holders of
the requisite principal amount of Outstanding Debentures have given any
request, demand, authorization, direction, notice, consent or waiver
hereunder, Debentures owned by the Company or any other obligor upon the
Debentures or any Affiliate of the Company or such other obligor shall
be disregarded and deemed not to be outstanding, except that, in
determining whether the Trustee shall be fully protected in conclusively
relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Debentures which a Responsible Officer of the
Trustee actually knows to be so owned shall be so disregarded.
Debentures so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes
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to the satisfaction of the Trustee the pledgee's right so to act with
respect to such Debentures and that the pledgee is not the Company or
any other obligor upon the Debentures or any Affiliate of the Company or
such other obligor. Upon request of the Trustee, the Company shall
furnish to the Trustee promptly an Officers' Certificate listing and
identifying all Debentures, if any, known by the Company to be owned or
held by or for the account of the Company, or any other obligor on the
Debentures or any Affiliate of the Company or such obligor, and, subject
to the provisions of Section 6.1, the Trustee shall be entitled to
accept such Officers' Certificate as conclusive evidence of the facts
therein set forth and of the fact that all Debentures not listed therein
are Outstanding for the purpose of any such determination.
"Paying Agent" means the Trustee or any Person authorized by the
Company to pay the principal of or interest on any Debentures on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
"Predecessor Debenture" of any particular Debenture means every
previous Debenture evidencing all or a portion of the same debt as that
evidenced by such particular Debenture, and, for the purposes of this
definition, any Debenture authenticated and delivered under Section 3.6 in lieu
of a lost, destroyed or stolen Debenture shall be deemed to evidence the same
debt as the lost, destroyed or stolen Debenture.
"Preferred Securities" has the meaning specified in the first
recital of this Indenture.
"Proceeding" has the meaning specified in Section 12.2.
"Property Trustee" means, in respect of the Trust, the commercial
bank or trust company identified as the "Property Trustee" in the Trust
Agreement, solely in its capacity as Property Trustee of the Trust under the
Trust Agreement and not in its individual capacity, or its successor in
interest in such capacity, or any successor property trustee appointed as
therein provided.
"Purchased Shares" has the meaning specified in Section 13.4(e).
"Purchaser Stock Price" means, with respect to any Common Stock
Fundamental Change, the average of the Closing Prices for common stock received
in such Common Stock Fundamental Change for the ten consecutive trading days
prior to and including the record date for the determination of the holders of
common stock entitled to receive such common stock or if there is no such
record date, the date on which the holders of common stock shall have the right
to receive such common stock, as adjusted in good faith by the Company to
appropriately reflect any of the events referred to in Section 13.4.
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16
"Redemption Date", when used with respect to any Debenture to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price" has the meaning specified in Section 11.3(b).
"Reference Date" has the meaning specified in Section 13.4(c).
"Reference Market Price" initially means $_____ (which is an
amount equal to 66 2/3% of the reported last sale price for Company Common
Stock on the NYSE Consolidated Transactions Tape on _________ __, ____), and in
the event of any adjustment of the Conversion Price other than as a result of a
Non-Stock Fundamental Change, the Reference Market Price shall also be adjusted
so that the ratio of the Reference Market Price to the Conversion Price after
giving effect to any such adjustment shall always be the same as the ratio of
the initial Reference Market Price to the initial Conversion Price of the
Debentures.
"Regular Record Date" means for the interest payable on any
Interest Payment Date the fifteenth day (whether or not a Business Day) next
preceding such Interest Payment Date.
"Responsible Officer" when used with respect to the Trustee means
any officer assigned to the Trustee's Corporate Trust Office, including any
managing director, vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and having direct responsibility for the administration of this
Indenture, and also, with respect to a particular matter, any other officer, to
whom such matter is referred because of such officer's knowledge of and
familiarity with the particular subject.
"Rights" has the meaning specified in Section 13.2(f).
"Rights Agreement" has the meaning specified in Section 13.2(f).
"Securities Register" and "Securities Registrar" have the
respective meanings specified in Section 3.5.
"Senior Debt" means the principal of (and premium, if any) and
interest, if any (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or
not such claim for post-petition interest is allowed in such proceeding), on
Debt of the Company, whether incurred on or prior to the date of this Indenture
or thereafter incurred, unless, in the instrument creating or evidencing the
same or pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to the Debentures or to other
Debt which is pari passu with, or subordinated to, the Debentures, provided,
however, that Senior Debt shall not be deemed to include (a) any Debt of the
Company which when incurred and, without respect to any election under Section
1111(b) of the Bankruptcy Reform Act of 1978, was without recourse to the
Company, (b) any Debt of the Company to any of
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its Subsidiaries, (c) Debt to any employee of the Company, (d) any liability
for taxes, (e) Debt or other monetary obligations to trade creditors created or
assumed by the Company or any of its Subsidiaries in the ordinary course of
business in connection with the obtaining of goods, materials or services and
(f) the Debentures.
"Special Event" means a Tax Event or an Investment Company Event.
"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity" when used with respect to the Debentures or any
installment of principal thereof or interest thereon means the date specified
in the Debentures as the fixed date on which the principal of the Debentures or
such installment of interest is due and payable.
"Subsidiary" means any corporation of which at the time of
determination the Company and/or one or more Subsidiaries owns or controls
directly or indirectly more than 50% of the outstanding shares of voting stock.
For purposes of this definition, "voting stock" means stock which has voting
power for the election of directors, whether at all times or only so long as no
senior class of stock has such voting power by reason of any contingency.
"Tax Event" means the receipt by the Property Trustee on behalf
of the Trust of an Opinion of Counsel, rendered by a law firm having a national
tax and securities practice (which Opinion of Counsel shall not have been
rescinded by such law firm), to the effect that, as a result of any amendment
to, or change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement or decision is announced on or after the date of issuance of
the Preferred Securities of the Trust and does not pertain to the use of the
proceeds of the issuance of the Debentures, there is more than an insubstantial
risk in each case after the date thereof that (i) the Trust is, or will be
within 90 days after the date thereof, subject to United States Federal income
tax with respect to income received or accrued on the Debentures, (ii) interest
payable by the Company on the Debentures is not, or within 90 days of the date
thereof, will not be, deductible, in whole or in part, for United States
Federal income tax purposes or (iii) the Trust is, or will be within 90 days of
the date thereof, subject to more than a de minimis amount of other taxes,
duties, assessments or other governmental charges.
"Transaction" has the meaning specified in Section 13.5(a).
"Trust" has the meaning specified in the first recital of this
Indenture.
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"Trust Agreement" means the Trust Agreement substantially in the
form attached hereto as Annex A, as amended by the form of Amended and Restated
Trust Agreement substantially in the form attached hereto as Annex B, as
amended from time to time.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder if
at any time there is more than one such Person.
"Trust Indenture Act" means the Trust Indenture Act of 1939 (15
U.S.C. Section 77aaa-77bbb), as amended and as in effect on the date as of
this Indenture.
"Trust Securities" means the Common Securities and Preferred
Securities.
"Underwriters" with respect to the Preferred Securities, means
_________________.
"Underwriting Agreement" means the Underwriting Agreement dated
________ __, ____ by and among Newfield Financial Trust __, Newfield
Exploration Company and the Underwriters.
"Vice President" when used with respect to the Company, means any
vice president, whether or not designated by a number or a word or words added
before or after the title "vice president."
SECTION 1.2 Compliance Certificate and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent (including
covenants, compliance with which constitutes a condition precedent), if any,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent (including covenants compliance with
which constitute a condition precedent), if any, have been complied with,
except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished. Every certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Indenture (other than the certificates provided pursuant to Section 10.5) shall
include:
(a) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
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(c) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3 Forms of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may
certify or give an opinion with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents. Any certificate or
opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by,
counsel, unless such officer knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
matters upon which his certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect to
such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate
or opinion or representations with respect to such matters are erroneous. Where
any Person is required to make, give or execute two or more applications,
requests, consents, certificates, statements, opinions or other instruments
under this Indenture, they may, but need not, be consolidated and form one
instrument.
SECTION 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given
to or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in
person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when
such instrument or instruments is or are delivered to the Trustee, and,
where it is hereby expressly required, to the Company. Such instrument
or instruments (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient
for any purpose of this Indenture and (subject to Section 6.1)
conclusive in favor of the Trustee and the Company and any agent of the
Trustee or the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness
of such execution or by the certificate of any notary public or other
officer authorized by law to take acknowledgments of deeds,
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certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a
Person acting in other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority.
(c) The fact and date of the execution by any Person of any
such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems
sufficient and in accordance with such reasonable rules as the Trustee
may determine.
(d) The ownership of Debentures shall be proved by the
Securities Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other action by the Holder of any Debenture shall
bind every future Holder of the same Debenture and the Holder of every
Debenture issued upon the transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Debenture.
(f) The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to take
any action under this Indenture by vote or consent. Except as otherwise
provided herein, such record date shall be the later of 30 days prior to
the first solicitation of such consent or vote or the date of the most
recent list of Holders furnished to the Trustee pursuant to Section 7.1
prior to such solicitation. If a record date is fixed, those persons who
were Holders at such record date (or their duly designated proxies), and
only those persons, shall be entitled to take such action by vote or
consent or to revoke any vote or consent previously given, whether or
not such persons continue to be Holders after such record date.
(g) Without limiting the foregoing, a Holder entitled
hereunder to give or take any such action with regard to any particular
Debenture may do so with regard to all or any part of the principal
amount of such Debenture or by one or more duly appointed agents each of
which may do so pursuant to such appointment with regard to all or any
different part of such principal amount.
SECTION 1.5 Notices, Etc. to Trustee and Company. Any request,
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given
or furnished to, or filed with
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
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(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose (except as otherwise provided in Section
5.1 hereof) hereunder if in writing and mailed, first class, postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 1.6 Notice to Holders; Waiver. Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first class postage prepaid, to each Holder affected by such event, at the
address of such Holder as it appears in the Securities Register on the date
such notice is mailed, which shall be not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver. In case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made with the approval of
the Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 1.7 Conflict with Trust Indenture Act. If any provision
of this Indenture limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that
may be so modified or excluded, the former provision shall be deemed to apply.
SECTION 1.8 Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.9 Successors and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 1.10 Separability Clause. In case any provision in this
Indenture or in the Debentures shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.11 Benefits of Indenture. Nothing in this Indenture or
in the Debentures, express or implied, shall give to any Person, other than the
parties thereto, any Paying Agent and their successors and assigns and the
Holders of the Debentures, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
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SECTION 1.12 Governing Law. This Indenture and the Debentures
shall be governed by and construed in accordance with the laws of the State of
New York without regard to its principles of conflicts of laws.
SECTION 1.13 Non-Business Days. Except as otherwise provided in
Section 11.5, in any case where any Interest Payment Date, Redemption Date, or
Stated Maturity of any Debenture shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or the Debentures)
payment of interest or principal payable on such date will be made on the next
succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay) with the same force and effect as if made
on the Interest Payment Date or Redemption Date or at the Stated Maturity,
provided that no interest shall accrue for the period from and after such
Interest Payment Date or Redemption Date or Stated Maturity.
ARTICLE 2
DEBENTURE FORM
SECTION 2.1 Forms Generally. The Debentures and the Trustee's
certificate of authentication shall be in substantially the forms sets forth in
this Article and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with applicable tax laws or the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Debentures, as evidenced by their execution of the Debentures.
The definitive Debentures shall be typewritten, printed,
lithographed or engraved or produced by any combination of these methods, if
required by any securities exchange on which the Debentures may be listed, on a
steel engraved border or steel engraved borders or may be produced in any other
manner permitted by the rules of any securities exchange on which the
Debentures may be listed, all as determined by the officers executing such
Debentures, as evidenced by their execution of such Debentures.
SECTION 2.2 Form of Face of Debenture.
_____% Convertible Subordinated Debenture due _________ __, ____
No. __ $
Newfield Exploration Company, a corporation organized and
existing under the laws of Delaware (the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ___________, or registered assigns, the
principal sum of $_______ on ________ __, ____ and to pay interest on said
principal sum from _________ __, ____ or from the most recent interest payment
date (each such date, an "Interest Payment Date") on which interest has been
paid or duly provided for, quarterly plus Additional Interest, if any until the
principal hereof is paid or duly provided for or made available
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for payment subject to deferral as set forth herein in arrears on _______ 1,
_______ 1, _______ 1 and _______ 1 of each year, commencing _______ __, ____ at
the rate of _____% per annum, until the principal hereof shall have become due
and payable.
Reference is hereby made to the further provisions of this
Debenture 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
Debenture shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
Dated:
By:_____________________________
SECTION 2.3 Form of Reverse of Debenture. This Debenture is one
of a duly authorized issue of Debentures of the Company (the "Debentures")
limited to the aggregate principal amount of $____________, issued and to be
issued under a Junior Convertible Subordinated Indenture, dated as of ________
__, ____ (the "Indenture"), between the Company and First Union National
Association, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which the Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Trustee, the Company and the Holders of the Debentures, and of the terms
upon which the Debentures are, and are to be, authenticated and delivered. All
terms used in this Debenture that are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. For periods less than a
full month, interest shall be computed on the actual number of elapsed days
over 360 days. In the event that any date on which interest is payable on this
Debenture is not a Business Day, then payment of the interest on such date will
be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay) with the same force and
effect as if made on the date the payment was originally payable. A "Business
Day" shall mean any day other than a Saturday or a Sunday, or a day on which
banking institutions in the City of New York are authorized or required by law
or executive order to remain closed or a day on which the Corporate Trust
Office of the Trustee, or the principal office of the Property Trustee under
the Trust Agreement is closed for business. The interest
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installment 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 Debenture (or one or more Predecessor Debentures, as defined
in the Indenture) is registered at the close of business on the Regular Record
Date, for such interest installment which shall be the date which is the
Business Day next preceding such Interest Payment Date. Any such interest
installment not so punctually paid or duly provided for shall forthwith cease
to be payable to the Holder on such Regular Record Date and may either be paid
to the Person in whose name this Debenture (or one or more Predecessor
Debentures) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Debentures not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Debentures may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
The Company shall have the right at any time during the term of
this Debenture, from time to time, to extend the interest payment period of
such Debenture for up to 20 consecutive quarters with respect to each deferral
period (each such deferral period, an "Extension Period"), during which periods
the Company shall have the right not to make payments of interest on any
Interest Payment Date, and at the end of which the Company shall pay all
interest then accrued and unpaid (together with Additional Interest, if any,
thereon to the extent permitted by applicable law); provided that during any
such Extension Period, the Company will not, and will not permit any Subsidiary
to, (a) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any shares of the
Company's capital stock or (b) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees of indebtedness for money borrowed) of the Company that
rank pari passu with or junior to the Debentures (other than (i) any dividend,
redemption, liquidation, interest, principal or guarantee payment by the
Company where the payment is made by way of securities (including capital
stock) that rank pari passu with or junior to the securities on which such
dividend, redemption, interest, principal or guarantee payment is being made,
(ii) redemptions or purchases of any rights pursuant to any Rights Agreement
and the declaration of a dividend of such rights or the issuance of preferred
stock under such plans in the future, (iii) payments under the Guarantee, (iv)
purchases of Company Common Stock related to the issuance of Company Common
Stock under any of the Company's benefit plans for its directors, officers or
employees, (v) as a result of a reclassification of the Company's capital stock
or the exchange or conversion of one series or class of the Company's capital
stock for another series or class of the Company's capital stock and (vi) the
purchase of fractional interests in shares of the Company's capital stock
pursuant to the conversion or exchange provisions of such capital stock or the
security being converted or exchanged). Prior to the termination of any such
Extension Period, the Company may further extend the interest payment period,
provided that no Extension Period shall exceed 20 consecutive quarters or
extend beyond the Stated Maturity of this Debenture. Upon the termination of
any such Extension Period and upon the payment of all accrued and unpaid
interest and any Additional Interest then due, the Company may elect to begin a
new Extension Period, subject to the above requirements. No interest shall be
due and payable during an Extension Period except at the end thereof. The
Company
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shall give the Trustee, the Property Trustee and the Administrative Trustees
notice of its selection of an Extension Period at least one Business Day prior
to the earlier of (i) the record date for the date the distributions on the
Preferred Securities (or if no Preferred Securities are outstanding, for the
date interest on the Debentures) would have been payable except for the
election to begin such Extension Period or (ii) the date the Property Trustee
of Newfield Financial Trust __ is (or if no Preferred Securities are
outstanding, the Debenture Trustee is) required to give notice to NYSE or other
applicable self-regulatory organizations or to holders of such Preferred
Securities (or, if no Preferred Securities are outstanding, to the Holders of
such Debentures) of the record date.
Payment of the principal of (and premium, if any) and interest on
this Debenture will be made [INSERT, IF A GLOBAL SECURITY IS ISSUED - TO THE
DEPOSITARY TRUST COMPANY OR ITS NOMINEE] [INSERT IF SECURITIES IN DEFINITIVE
FORM ARE ISSUED - AT THE OFFICE OR AGENCY OF THE PAYING AGENT MAINTAINED FOR
THAT PURPOSE IN THE UNITED STATES], in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts provided, however, that at the option of the Company
payment of interest may be made (a) by check mailed to the address of the
Person entitled thereto as such address shall appear in the Securities Register
or (b) by wire transfer in immediately available funds at such place and to
such account as may be designated by the Person entitled thereto as specified
in the Securities Register.
The indebtedness evidenced by this Debenture is, to the extent
provided in the Indenture, subordinate and subject in right of payments to the
prior payment in full of all Senior Debt (as defined in the Indenture), and
this Debenture is issued subject to the provisions of the Indenture with
respect thereto. Each Holder of this Debenture, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs the
Trustee on his behalf to take such actions as may be necessary or appropriate
to effectuate the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes. Each Holder hereof, by his
acceptance hereof, waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of Senior Debt,
whether now outstanding or hereafter incurred, and waives reliance by each such
holder upon said provisions.
At any time on or after ________ __, ____, the Company may, at
its option, subject to the terms and conditions of Article 11 of the Indenture,
redeem this Debenture in whole at any time or in part from time to time, at the
Redemption Prices set forth in Section 11.8 of the Indenture.
In the event of redemption of this Debenture in part only, a new
Debenture or Debentures for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
If a Special Event shall occur and be continuing, this Debenture
shall be exchangeable for Preferred Securities in accordance with Section 11.9
of the Indenture or, in certain circumstances, redeemable by the Company in
accordance with Section 11.8 of the Indenture.
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Subject to the terms and conditions set forth in Article 13 of
the Indenture, this Debenture is convertible, at the option of the Holder,
hereof into shares of Company Common Stock.
If an Event of Default shall occur and be continuing, the
principal of the Debentures may be declared due and payable in the manner, with
the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions for satisfaction, discharge and
defeasance of the entire indebtedness of this Debenture upon compliance by the
Company with certain conditions set forth in the Indenture.
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 Debentures to
be affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in principal amount of the Debentures.
The Indenture also contains provisions permitting Holders of specified
percentages in principal amount of the Debentures at the time Outstanding, on
behalf of the Holders of all Debentures, 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 shall be
conclusive and binding upon the Holder of this Debenture and upon all future
Holders of this Debenture and of any Debenture issued upon the registration of
transfer hereof or in exchange therefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Debenture.
As provided in and subject to the provisions of the Indenture, if
an Event of Default shall occur and be continuing, then and in every such case
the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Debentures may declare the principal amount of all the Debentures
to be due and payable immediately, by a notice in writing to the Company (and
to the Trustee if given by Holders), provided that, if an Event of Default
shall occur and be continuing, the Trustee or the Holders of not less than 25%
in principal amount of the Outstanding Debentures fail to declare the principal
of all the Debentures to be immediately due and payable, the holders of at
least 25% in aggregate liquidation amount of the Preferred Securities then
outstanding shall have such right by a notice in writing to the Company and the
Trustee; and upon any such declaration such principal amount (or specified
amount) of and the accrued interest (including any Additional Interest) on all
the Debentures shall become immediately due and payable, provided that the
payment of principal and interest (including any Additional Interest) on such
Debentures shall remain subordinated to the extent provided in Article 12 of
the Indenture.
No reference herein to the Indenture and no provision of this
Debenture or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of (and
premium, if any) and interest on this Debenture at the times, place and rate,
and in the coin or currency, herein prescribed.
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As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Debenture is registrable in the
Securities Register, upon surrender of this Debenture for registration of
transfer at the office or agency of the Company maintained under Section 10.2
of the Indenture duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Securities Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing, and
thereupon one or more new Debentures, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees. 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 tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Debenture 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 Debenture is registered as the owner
hereof for all purposes, whether or not this Debenture be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
The Debentures are issuable only in registered form without
coupons in denominations of $50 and any integral multiple thereof. As provided
in the Indenture and subject to certain limitations therein set forth,
Debentures are exchangeable for a like aggregate principal amount of Debentures
of a different authorized denomination, as requested by the Holder surrendering
the same.
The Company and, by its acceptance of this Debenture or a
beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, this Debenture agree that for United States Federal,
state and local tax purposes it is intended that this Debenture constitute
indebtedness.
THE INDENTURE AND THIS DEBENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO CONFLICTS OF LAW PRINCIPLES THEREOF.
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ASSIGNMENT FORM
To assign this Debenture, fill in the form below:
(I) or (we) assign and transfer this Security to
________________________________________________________________________________
(Insert assignee's social security or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint
_________________________________________________________
agent to transfer this Debenture on the books of the Company. The agent may
substitute another to act for him.
Your Signature:
___________________________________________________
(Sign exactly as your name appears on the other
side of this Security)
Date:
______________________
Signature Guarantee:*
____________________________________________
_____________
* Signature must be guaranteed by an institution which is a member of one
of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange
Medallion Program (SEMP); or (iv) in such other guarantee programs
acceptable to the Trustee.
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NOTICE OF CONVERSION
To: Newfield Exploration Company
The undersigned owner of this Debenture hereby irrevocably
exercises the option to convert this Debenture, or the portion below
designated, into Common Stock of NEWFIELD EXPLORATION COMPANY in accordance
with the terms of the Indenture referred to in this Debenture, and directs that
the shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment
below. If shares are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto.
Any Holder, upon the exercise of its conversion rights in
accordance with the terms of the Indenture and the Debenture, agrees to be
bound by the terms of any Rights Agreement relating to Company Common Stock
issuable upon conversion of the Debenture.
Date: ____________, ____
in whole ___
Portions of Debenture to be
in part ___ converted ($50 or integral multiples thereof):
$__________________
______________________________________________
Signature (for conversion only)
Please Print or Typewrite Name and Address,
Including Zip Code, and Social Security or
Other Identifying Number
______________________________________________
______________________________________________
______________________________________________
Signature Guarantee:*_____________________________
_____________
* Signature must be guaranteed by an institution which is a member of one
of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The
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Stock Exchange Medallion Program (SEMP); or (iv) in such other guarantee
programs acceptable to the Trustee.
SECTION 2.4 Additional Provisions Required in Global Debenture.
Any Global Debenture issued hereunder shall, in addition to the provisions
contained in Sections 2.2 and 2.3 bear a legend in substantially the following
form: "This Debenture is a Global Debenture within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee of a Depositary. This Debenture is exchangeable for Debentures
registered in the name of a person other than the Depositary or its nominee
only in the limited circumstances described in the Indenture and may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary."
SECTION 2.5 Form of Trustee's Certificate of Authentication.
The form of Trustee's Certificate of Authentication shall be as follows:**
"This is one of the Debentures designated therein referred to in the within
mentioned Indenture.
First Union National Bank,
as Trustee
By: ________________________
Authorized Signatory
Dated: _____________________"
SECTION 2.6 Initial Issuance to Property Trustee. The
Debentures initially issued to the Property Trustee of the Trust shall be in
the form of one or more individual certificates in definitive, fully registered
form without coupons.
__________
** Or in the form provided in Section 6.14 in the event that a separate
Authenticating Agent is appointed pursuant thereto.
ARTICLE 3
THE DEBENTURES
SECTION 3.1 Amount of Debentures. The aggregate principal
amount of Debentures which may be authenticated and delivered under this
Indenture is $____________ except
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for Debentures authenticated and delivered upon registration of, transfer of,
or in exchange for, or in lieu of, other Debentures pursuant to Sections 3.4,
3.5 or 3.6.
SECTION 3.2 Denominations. The Debentures shall be in
registered form without coupons and shall be issuable in denominations of $50
and any integral multiple thereof.
SECTION 3.3 Execution, Authentication, Delivery and Dating. The
Debentures shall be executed on behalf of the Company by its President or one
of its Vice Presidents under its corporate seal reproduced or impressed thereon
and attested by its Secretary or one of its Assistant Secretaries. The
signature of any of these officers on the Debentures may be manual or
facsimile.
Debentures bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Debentures or did not hold such offices at the date of such Debentures. Upon
the execution and delivery of this Indenture, or from time to time thereafter,
Debentures may be executed by the Company and delivered to the Trustee for
authentication, and the Trustee shall thereupon authenticate and deliver said
Securities to or upon Company Order without any further action by the Company.
Debentures may be authenticated on original issuance from time to time and
delivered pursuant to such procedures acceptable to the Trustee ("Procedures")
as may be specified from time to time by Company Order. Procedures may
authorize authentication and delivery pursuant to instructions of the Company
or a duly authorized agent, which instructions shall be promptly confirmed in
writing.
Each Debenture shall be dated the date of its authentication.
No Debenture shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose, unless there appears on
such Debenture a certificate of authentication substantially in the form
provided for herein executed by the Trustee by the manual signature of one of
its authorized officers, and such certificate upon any Debenture shall be
conclusive evidence, and the only evidence, that such Debenture has been duly
authenticated and delivered hereunder.
SECTION 3.4 Temporary Debentures. Pending the preparation of
definitive Debentures, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Debentures which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
denomination, substantially of the tenor of the definitive Debentures in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Debentures
may determine, as evidenced by their execution of such Debentures.
If temporary Debentures are issued, the Company will cause
definitive Debentures to be prepared without unreasonable delay. After the
preparation of definitive Debentures, the temporary Debentures shall be
exchangeable for definitive Debentures upon surrender of the
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temporary Debentures at the office or agency of the Company designated for the
purpose without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Debentures, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Debentures of authorized denominations. Until so exchanged, the
temporary Debentures shall in all respects be entitled to the same benefits
under this Indenture as definitive Debentures.
SECTION 3.5 Registration, Transfer and Exchange. The Company
shall cause to be kept at the Corporate Trust Office of the Trustee a register
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Debentures and of transfers of
Debentures. Such register is herein sometimes referred to as the "Securities
Register." The Trustee is hereby appointed "Securities Registrar" for the
purpose of registering Debentures and transfers of Debentures as herein
provided.
Upon surrender for registration or transfer of any Debenture at
the office or agency of the Company designated for that purpose the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Debentures of any
authorized denominations, of a like aggregate principal amount.
At the option of the Holder, Debentures may be exchanged for
other Debentures of any authorized denominations, of a like aggregate principal
amount, upon surrender of the Debentures to be exchanged at such office or
agency. Whenever any Debentures are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Debentures
which the Holder making the exchange is entitled to receive.
All Debentures issued upon any transfer or exchange of Debentures
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Debentures
surrendered upon such transfer or exchange.
Every Debenture presented or surrendered for transfer or exchange
shall (if so required by the Company or the Securities Registrar) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Securities Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Holder for any transfer or
exchange of Debentures, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any transfer or exchange of Debentures.
Notwithstanding any of the foregoing, the Global Debenture shall
be exchangeable pursuant to this Section 3.5 for Debentures registered in the
names of Persons other than the Depository for such Debenture or its nominee
only if (a) such Depository notifies the Company that it is unwilling or unable
to continue as Depository for the Global Debenture, and the Company shall
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33
not have appointed a successor Depository within 90 days after such notice, (b)
at any time such Depository ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, and the Company shall not have
appointed a successor Depository within 90 days, (c) the Company executes and
delivers to the Trustee a Company Order that the Global Debenture shall be so
exchangeable or (d) there shall have occurred and be continuing an Event of
Default. The Global Debenture shall be exchangeable for Debentures registered
in such names as such Depository shall direct.
Notwithstanding any other provisions in this Indenture, the
Global Debenture may not be transferred except as a whole by the Depository
with respect to the Global Debenture to a nominee of such Depository or by a
nominee of such Depository to such Depository or another nominee of such
Depository.
Neither the Company nor the Trustee shall be required, pursuant
to the provisions of this Section, (a) to issue, transfer or exchange any
Debenture during a period beginning at the opening of business 15 days before
the day of selection for redemption of Debentures pursuant to Article 11 and
ending at the close of business on the day of mailing of notice of redemption
or (b) to transfer or exchange any Debenture so selected for redemption in
whole or in part, except, in the case of any Debenture to be redeemed in part,
any portion thereof not to be redeemed.
Upon any distribution of the Debentures to the holders of the
Preferred Securities in accordance with the Trust Agreement, the Company and
the Trustee shall enter into a supplemental indenture pursuant to Section 9.1
to provide for transfer procedures and restrictions with respect to the
Debentures substantially similar to those contained in the Trust Agreement to
the extent applicable in the circumstances existing at the time of such
distribution.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Debentures.
If any mutilated Debenture is surrendered to the Trustee together with such
security or indemnity as may be required by the Company or the Trustee to save
each of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Debenture and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and to the Trustee (a)
evidence to their satisfaction of the destruction, loss or theft of any
Debenture, and (b) such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of actual notice to the
Company or the Trustee that such Debenture has been acquired by a bona fide
purchaser, the Company shall execute and upon the receipt of a Company Order
requesting authentication its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Debenture, a new
Debenture bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Debenture
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Debenture, pay such Debenture.
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Upon the issuance of any new Debenture under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Debenture issued pursuant to this Section in lieu of
any destroyed, lost or stolen Debenture shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debenture shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Debentures duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Debentures.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
Interest on any Debenture which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date, shall be paid to the Person in
whose name that Debenture (or one or more Predecessor Debentures) is registered
at the close of business on the Regular Record Date, except that interest
payable on the Stated Maturity of the Debentures shall be paid to the Person to
whom principal is paid.
Any interest on the Debentures which is payable, but is not
timely paid or duly provided for, on an Interest Payment Date ("Defaulted
Interest"), shall forthwith cease to be payable to the registered Holder on the
Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided
in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debentures (or their
respective Predecessors Debentures) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on the Debentures and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company,
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shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first class, postage
prepaid, to each Holder of the Debentures at the address of such Holder
as it appears in the Securities Register not less than 10 days prior to
such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names the Debentures (or their respective Predecessor
Debentures) are registered on such Special Record Date and shall no
longer be payable pursuant to the following clause (b).
(b) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Debentures may be listed and, upon such
notice as may be required by such exchange (or by the Trustee if the
Debentures are not listed), if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each
Debenture delivered under this Indenture upon transfer of or in exchange for or
in lieu of any other Debenture shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Debenture.
SECTION 3.8 Persons Deemed Owners. The Company, the Trustee,
the Paying Agent and any agent of the Company or the Trustee or the Paying
Agent may treat the Person in whose name any Debenture is registered as the
owner of such Debenture for the purpose of receiving payment of principal of
and (subject to Section 3.7) interest or premium on such Debenture and for all
other purposes whatsoever, whether or not such Debenture be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 3.9 Cancellation. All Debentures surrendered for
payment, redemption, conversion transfer or exchange shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee, and any such
Debentures and Debentures surrendered directly to the Trustee for any such
purpose shall be promptly canceled by it. The Company may at any time deliver
or cause to be delivered to the Trustee for cancellation any Debentures
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Debentures so delivered shall be
promptly canceled by the Trustee. No Debentures shall be authenticated in lieu
of or in exchange for any Debentures canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Debentures shall
be destroyed by the Trustee and upon written request, the Trustee shall deliver
to the Company a certificate of such destruction.
SECTION 3.10 Computation of Interest. Interest on the Debentures
shall be computed on the basis of a 360-day year of twelve 30-day months.
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SECTION 3.11 Deferrals of Interest Payment Dates. The Company
shall have the right, at any time during the term of the Debentures, so long as
no Event of Default has occurred and is continuing, from time to time to extend
the interest payment period for the Debentures for up to 20 consecutive
quarters with respect to each deferral period (each, an "Extension Period")
during which periods the Company shall have the right to not make payments of
interest on any Interest Payment Date, and at the end of such Extension Period
the Company shall pay all interest then accrued and unpaid thereon (together
with Additional Interest thereon, if any, at the rate specified for the
Debentures, to the extent permitted by applicable law), provided, however, that
during any such Extension Period, the Company shall not, and shall cause any
Subsidiary not to, (a) declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any
shares of the Company's capital stock or (b) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities (including guarantees of indebtedness for money borrowed) of the
Company that rank pari passu with or junior to the Debentures (other than (i)
any dividend, redemption, liquidation, interest, principal or guarantee payment
by the Company where the payment is made by way of securities (including
capital stock) that rank pari passu with or junior to the securities on which
such dividend, redemption, interest, principal or guarantee payment is being
made, (ii) redemptions or purchases of any rights pursuant to any Rights
Agreement and the declaration of a dividend of such rights or the issuance of
preferred stock under such plans in the future, (iii) payments under the
Guarantee, (iv) purchases of Company Common Stock related to the issuance of
Company Common Stock under any of the Company's benefit plans for its
directors, officers or employees, (v) as a result of a reclassification of the
Company's capital stock or the exchange or conversion of one series or class of
the Company's capital stock for another series or class of the Company's
capital stock and (vi) the purchase of fractional interests in shares of the
Company's capital stock pursuant to the conversion or exchange provisions of
such capital stock or the security being converted or exchanged). Prior to the
termination of any such Extension Period, the Company may further extend the
interest payment period, provided that no such Extension Period shall exceed 20
consecutive quarters or extend beyond the Stated Maturity of the Debentures.
Upon termination of any Extension Period and upon the payment of all accrued
and unpaid interest and any Additional Interest then due, the Company may
select a new Extension Period, subject to the above requirements. No interest,
including Additional Interest, if any, shall be due and payable during an
Extension Period, except at the end thereof. The Company shall give the
Trustee, the Property Trustee and the Administrative Trustees written notice of
its selection of such Extension Period at least one Business Day prior to the
earlier of (i) the record date for the date the distributions on the Preferred
Securities of the Trust (or if no, Preferred Securities are outstanding, for
the date interest on the Debentures) would have been payable except for the
election to begin such Extension Period and (ii) the date the Property Trustee
(or, if no Preferred Securities are outstanding, the Trustee) is required to
give notice to NYSE or other applicable self-regulatory organization or to
holders of such Preferred Securities (or, if no Preferred Securities are
outstanding, to the Holders of such Debentures) of such record date, but in any
event not less than one Business Day prior to such record date. Such notice
shall specify the period selected.
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The Trustee shall promptly give notice of the Company's selection
of such Extension Period to the Holders of the outstanding Debentures and
Preferred Securities.
SECTION 3.12 Right of Set-off. Notwithstanding anything to the
contrary in the Indenture, the Company shall have the right to set-off any
payment it is otherwise required to make thereunder in respect of the Debenture
to the extent the Company has theretofore made, or is concurrently on the date
of such payment making, a payment relating to the Debentures under the
Guarantee.
SECTION 3.13 Agreed Tax Treatment. Each Debenture issued
hereunder shall provide that the Company and, by its acceptance of a Debenture
or a beneficial interest therein, the Holder of, and any Person that acquires a
beneficial interest in, such Debenture agree that for United States Federal,
state and local tax purposes it is intended that such Debenture constitute
indebtedness.
SECTION 3.14 CUSIP Numbers. The Company in issuing the
Debentures may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use such "CUSIP" number in notices of redemption as a convenience
to Holders; provided that any such notice may state that no representation is
made as to the correctness of such number either as printed on the Debentures
or as contained in any notice of a redemption and that reliance may be placed
only on the other identification numbers printed on the Debentures, and any
such redemption shall not be affected by any defect in or omission of such
numbers.
SECTION 3.15 Global Security.
(a) In connection with distribution of Debentures to holders
of the Preferred Securities in connection with the involuntary or
voluntary dissolution of the Trust, including a dissolution following
the occurrence of a Special Event,
(i) the Debentures in certificated form may be
presented to the Trustee by the Property Trustee in exchange for
a global certificate in an aggregate principal amount equal to
the aggregate principal amount of all outstanding Debentures (a
"Global Debenture"), to be registered in the name of the
Depository, or its nominee, and delivered by the Trustee to the
Depository, or its custodian, for crediting to the accounts of
its participants pursuant to the procedures of the Depository.
The Company upon any such presentation shall execute a Global
Debenture in such aggregate principal amount and deliver the same
to the Trustee for authentication and delivery in accordance with
this Indenture; and
(ii) if any Preferred Securities are held in non book-
entry certificated form, the Debentures in certificated form may
be presented to the Trustee by the Property Trustee and any
Preferred Security certificate which represents Preferred
Securities other than Preferred Securities held by the Depository
or its nominee
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("Non Book-Entry Preferred Securities") will be deemed to
represent beneficial interests in Debentures presented to the
Trustee by the Property Trustee having an aggregate principal
amount equal to the aggregate liquidation amount of the Non Book-
Entry Preferred Securities until such Preferred Security
certificates are presented to the Securities Registrar for
transfer or reissuance at which time such Non-Book Entry
Preferred Security certificates will be canceled and a Debenture,
registered in the name of the holder of the Preferred Security
certificate or the transferee of the holder of such Preferred
Security certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the
Preferred Security certificate canceled, will be executed by the
Company and delivered to the Trustee for authentication and
delivery in accordance with this Indenture. On issue of such
Debentures, Debentures with an equivalent aggregate principal
amount that were presented by the Property Trustee to the Trustee
will be deemed to have been cancelled.
(b) A Global Debenture may be transferred, in whole but not in
part, only to another nominee of the Depository, or to a nominee of such
successor Depository.
(c) If (a) the Depository notifies the Company that it is
unwilling or unable to continue as a Depository for such Global
Debenture and no successor Depository shall have been appointed within
90 days by the Company, (b) the Depository, at any time, ceases to be a
clearing agency registered under the Exchange Act at which time the
Depository is required to be so registered to act as such Depository and
no successor Depository shall have been appointed within 90 days by the
Company, (c) the Company, in its sole discretion, determines that such
Global Debenture shall be so exchangeable or (d) there shall have
occurred and be continuing an Event of Default with respect to such
Debentures, as the case may be, the Company will execute, and, subject
to Article 3 of this Indenture, the Trustee, upon written notice from
the Company and receipt of a Company Order, will authenticate and
deliver the Debentures in definitive registered form without coupons, in
authorized denominations, and in an aggregate principal amount equal to
the principal amount of the Global Debenture in exchange for such Global
Debenture. In addition, upon an Event of Default that has occurred and
is continuing or in the event the Company determines that the Debenture
shall no longer be represented by a Global Debenture, the Company will
execute, and subject to Section 3.5 of this Indenture, the Trustee, upon
receipt of an Officers' Certificate evidencing such determination by the
Company and a Company Order, will authenticate and make available for
delivery, the Debentures in definitive registered form without coupons,
in authorized denominations, and in an aggregate principal amount equal
to the principal amount of the Global Debenture in exchange for such
Global Debenture. Upon the exchange of the Global Debenture for such
Debentures in definitive registered form without coupons, in authorized
denominations, the Global Debenture shall be cancelled by the Trustee.
Such Debentures in definitive registered form issued in exchange for the
Global Debenture shall be registered in such names and in such
authorized denominations as the Depository, pursuant to instructions
from its direct or indirect participants or otherwise, shall
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instruct the Trustee in writing. The Trustee shall deliver such
Debentures to the Depository for delivery to the Persons in whose names
such Debentures are so registered.
ARTICLE 4
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This
Indenture shall cease to be of further effect (except as to (i) any surviving
rights of transfer, substitution and exchange of Debentures, (ii) rights
hereunder of Holders to receive payments of principal of (and premium, if any)
and interest (including Additional Interest, if any) on the Debentures and
other rights, duties and obligations of the Holders as beneficiaries hereof
with respect to the amounts, if any, so deposited with the Trustee and (iii)
the rights and obligations of the Trustee hereunder), and the Trustee, on
demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all Debentures theretofore authenticated and
delivered (other than (i) Debentures which have been destroyed,
lost or stolen and which have been replaced or paid as provided
in Section 3.6 and (ii) Debentures for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 10.3) have
been delivered to the Trustee for cancellation; or (ii) all such
Debentures not theretofore delivered to the Trustee for
cancellation:
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year of the date of deposit or are to
be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
written notice of redemption to the Trustee in the name,
and at the expense, of the Company, and the Company has
deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the
currency or currencies in which the Debentures are payable
sufficient (without regard to investment of such amount
deposited) to pay and discharge the entire indebtedness on
the Debentures not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and
interest (including any Additional Interest) to the date
of such deposit or to the Stated Maturity; or
(C) have been redeemed or tendered for
conversion;
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(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7 and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a)
of this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money. Subject to the
provisions of the last paragraph of Section 10.3, all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in
accordance with the provisions of the Debentures and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any) and interest for whose
payment such money or obligations have been deposited with or received by the
Trustee; provided, however, such moneys need not be segregated from other funds
except to the extent required by law.
ARTICLE 5
REMEDIES
SECTION 5.1 Events of Default. "Event of Default", wherever
used herein with respect to the Debentures, means any one of the following
events that has occurred and is continuing (whatever the reason for such Event
of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest upon the Debenture,
including any Additional Interest in respect thereof, when it becomes
due and payable, and continuance of such default for a period of 30 days
(subject to the deferral of any due date in the case of an Extension
Period);
(b) default in the payment of the principal of (or premium, if
any, on) the Debentures when due whether at Stated Maturity, upon
redemption by declaration or otherwise;
(c) failure on the part of the Company duly to observe or
perform in any material respect any other of the covenants or agreements
on the part of the Company contained in
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the Debentures or contained in this Indenture (other than a covenant or
agreement which has been expressly included in this Indenture solely for
the benefit of the Company) and continuance for such failure for a
period of 90 days after the date on which written notice of such
failure, requiring the same to be remedied and stating that such notice
is a "Notice of Default" hereunder, shall have been given to the Company
by the Trustee, by registered or certified mail, or to the Company and
the Trustee by a Holder or Holders of at least 25% in aggregate
principal amount of the Debentures at the time Outstanding or the holder
or holders of at least 25% in aggregate liquidation amount of the
Preferred Securities;
(d) failure by the Company to issue Company Common Stock upon
an appropriate election by the Holder or Holders of the Debentures to
convert the Debentures into shares of Company Common Stock;
(e) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company as bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjudication or composition of or in
respect of the Company under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(f) the institution by the Company of proceedings to be
adjudicated as bankrupt or insolvent, or the consent by it to the
institution of bankruptcy or insolvency proceedings against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law, or the consent by it to the filing
of any such petition or to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the
Company or of any substantial part of its property or the making by it
of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its debts generally as they become due
and its willingness to be adjudicated as bankrupt, or the taking of
corporate action by the Company in furtherance of any such action.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in every such case
the Trustee or the Holders of not less than 25% in aggregate principal amount
of the Outstanding Debentures may declare the principal amount of and the
accrued interest (including any Additional Interest) on all the Debentures to
be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), provided that, if an Event of Default occurs
and is continuing, the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Debentures fail to declare the principal of
all the Debentures to be immediately due and payable, the holders of at least
25% in aggregate liquidation amount of the Preferred Securities then
outstanding shall have such right by a notice in writing to the Company and the
Trustee, and upon any such declaration such principal
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amount (or specified amount) of and the accrued interest (including any
Additional Interest) on all the Debentures shall become immediately due and
payable, provided that the payment of principal and interest (including any
Additional Interest) on the Debentures shall remain subordinated to the extent
provided in Article 12.
At any time after such a declaration of acceleration with respect
to Debentures has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in aggregate principal amount of the
Outstanding Debentures, by written notice to the Company and the Trustee may
rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(i) all overdue installments of interest (including any
Additional Interest) on the Debentures;
(ii) the principal of (and premium, if any, on) the
Debentures which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate
borne by the Debentures;
(iii) to the extent that payment of such interest is
lawful, interest (including any Additional Interest) upon overdue
installments of interest at the rate borne by the Debentures;
(iv) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel; and
(b) all Events of Default that shall have occurred and been
continuing with respect to Debentures, other than the non-payment of the
principal of the Debentures which has become due solely by such
acceleration, have been cured or waived as provided in Section 5.13. If
the holders of a majority in aggregate principal amount of the
Outstanding Debentures fail to rescind and annul such declaration and
its consequences, the holders of a majority in liquidation amount of the
Preferred Securities then outstanding shall have such right.
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee.
The Company covenants that if:
(a) default is made in the payment of any installment of
interest (including any Additional Interest) on the Debentures when such
interest becomes due and payable and such default continues for a period
of 30 days, or
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(b) default is made in the payment of the principal of (and
premium, if any, on) the Debentures whether at the Stated Maturity
thereof upon redemption by declaration or otherwise, the Company will,
upon demand of the Trustee, pay to it, for the benefit of the Holders of
the Debentures, the whole amount then due and payable on the Debentures
for principal (and premium, if any) and interest (including any
Additional Interest), including, to the extent that payment of such
interest shall be lawful, interest on any overdue principal (and
premium, if any) and on any overdue installments of interest (including
any Additional Interest) at the rate borne by the Debentures, and, in
addition thereto, all amounts owing the Trustee under Section 6.7.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgement or final decree, and may
enforce the same against the Company or any other obligor upon the Debentures
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the
Debentures, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may
in its discretion proceed to protect and enforce its rights and the rights of
the Holders of the Debentures by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Debentures or
the property of the Company or of such other obligor or their creditors:
(a) the Trustee (irrespective of whether the principal of the
Debentures shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of overdue principal
(or premium, if any) or interest (including any Additional Interest))
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to file and prove a claim (including a claim for
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel) for the whole amount of
principal (and premium, if any) and interest (including any
Additional Interest) owing and unpaid in respect to the
Debentures and to file such other papers or documents as may be
necessary or advisable and to take any and all actions as are
authorized under the Trust Indenture Act in order to have the
claims of the Holders and any predecessor to the Trustee under
Section 6.7 and, of the Holders allowed in any such judicial
proceedings; and
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(ii) in particular, the Trustee shall be authorized to
collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same in
accordance with Section 5.6; and
(b) any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the Trustee
for distribution in accordance with Section 5.6, and in the event that
the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it and any predecessor
Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Debentures or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee may, on behalf of the Holders, vote for the election
of a trustee in bankruptcy or similar official and be a member of a creditors'
or other similar committee.
SECTION 5.5 Trustee May Enforce Claim Without Possession of
Debentures. All rights of action and claims under this Indenture or the
Debentures may be prosecuted and enforced by the Trustee without the possession
of any of the Debentures or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgement
shall, after provision for the payment of all the amounts owing the Trustee and
any predecessor Trustee under Section 6.7, its agents and counsel, be for the
ratable benefit of the Holders of the Debentures in respect of which such
judgement has been recovered.
SECTION 5.6 Application of Money Collected. Any money or
property collected or to be applied by the Trustee with respect to the
Debentures pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money or property on account of principal (or premium, if any) or interest
(including any Additional Interest), upon presentation of the Debentures and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: to the payment of all amounts due the Trustee and any
predecessor Trustee under Section 6.7,
SECOND: to the payment of the amounts then due and unpaid upon
the Debentures for principal (and premium, if any) and interest (including any
Additional Interest), in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Debentures for principal (and
premium, if any) and interest (including any Additional Interest),
respectively; and
THIRD: the balance, if any, to the Person or Persons entitled
thereto.
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SECTION 5.7 Limitation on Suits. No Holder of the Debentures,
including a holder of Preferred Securities acting to enforce the rights of the
Property Trustee as a Holder of the Debentures pursuant to Section 5.8 of the
Trust Agreement, shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture or for the appointment of a receiver,
assignee, trustee, liquidator, sequestrator (or other similar official) or for
any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(b) if the Trust is not the sole holder of the Outstanding
Debentures, the Holders of not less than 25% in principal amount of the
Outstanding Debentures shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(e) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Debentures;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders of the Debentures, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Debenture shall have the right which is absolute
and unconditional to receive payment of the principal of (and premium, if any)
and (subject to Section 3.7) interest (including any Additional Interest) on
such Debenture on the Maturity or to convert such Debenture in accordance with
Article 13 and to institute suit for the enforcement of any such payment and
right to convert, and such right shall not be impaired without the consent of
such Holder. For so long as any Preferred Securities remain Outstanding, to the
fullest extent permitted by law and subject to the terms of this Indenture and
the Trust Agreement, upon an Event of Default that has occurred and is
continuing specified in Sections 5.1(a) or 5.1(b), any holder of Preferred
Securities shall have the right to institute a proceeding directly against the
Company, for enforcement of payment to such holder of the principal amount of
(or premium, if any) or interest on Debentures having a principal amount equal
to the liquidation
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amount of the Preferred Securities of such holder (a "Direct Action").
Notwithstanding any payment made to such holder of Preferred Securities by the
Company in connection with a Direct Action, the Company shall remain obligated
to pay the principal of (or premium, if any) or interest on the Debentures held
by the Trust or the Property Trustee. In connection with any such Direct
Action, the rights of the Company will be subrogated to the rights of any
holder of the Preferred Securities to the extent of any payment made by the
Company to such holder of Preferred Securities as a result of such Direct
Action. Except as set forth in this Section, the holders of Preferred
Securities shall have no right to execute any right or remedy available to the
Holders of or in respect of, the Debentures.
SECTION 5.9 Restoration of Rights and Remedies. If the Trustee
or any Holder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case the Company, the Trustee and the Holder shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder, and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative. Except as otherwise
provided in the last paragraph of Section 3.6, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other right
and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver. No delay or omission
of the Trustee or of any Holder of the Debentures to exercise any right or
remedy accruing upon any Event of Default that shall have occurred and be
continuing shall impair any such right or remedy, or constitute a waiver of any
such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12 Control by Holders. The Holders of a majority in
aggregate principal amount of the Outstanding Debentures shall have the right
to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee, with respect to the Debentures, provided that:
(a) such direction shall not be in conflict with any rule of
law or with this Indenture,
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(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the Trustee
shall have the right to decline to follow such direction if the Trustee
in good faith shall, by a Responsible Officer or Officers of the
Trustee, determine that the proceeding so directed would be unjustly
prejudicial to the Holders not joining in any such direction or would
involve the Trustee in personal liability.
Upon receipt by the Trustee of any written notice directing the
time, method or place of conducting any such proceeding or exercising any such
trust or power, with respect to the Debentures and, if all or part of the
Debentures is represented by a Global Security, a record date shall be
established for determining Holders of Outstanding Debentures entitled to join
in such notice, which record date shall be at the close of business on the day
the Trustee receives such notice. The Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to join in
such notice, whether or not such Holders remain Holders after such record date,
provided, that, unless the Holders of a majority in principal amount of the
Outstanding Debentures shall have joined in such notice prior to the day which
is 90 days after such record date, such notice shall automatically and without
further action by any Holder be canceled and of no further effect. Nothing in
this paragraph shall prevent a Holder, or a proxy of a Holder, from giving,
after expiration of such 90-day period, a new notice identical to a notice
which has been canceled pursuant to the proviso to the preceding sentence, in
which event a new record date shall be established pursuant to the provisions
of this Section 5.12.
SECTION 5.13 Waiver of Past Defaults. Subject to Section 9.2
hereof, the Holders of not less than a majority in aggregate principal amount
of the Outstanding Debentures affected by any past default may on behalf of the
Holders of all the Debentures waive any past default hereunder with respect to
Debentures and its consequences, except a default:
(a) in the payment of the principal of (or premium, if any) or
interest (including any Additional Interest) on the Debentures (unless
such default has been cured or waived and a sum sufficient to pay all
matured installments of interest and principal due otherwise than by
acceleration has been deposited with the Trustee), or
(b) in respect of a covenant or provision hereof which under
Article 9 cannot be modified or amended without the consent of the
Holder of each Outstanding Debenture;
provided, however, that if the Debentures are held by the Trust or a trustee of
the Trust, such waiver shall not be effective until the holders of a majority
in liquidation amount of Trust Securities shall have consented to such waiver;
provided, further, that if the consent of the Holder of each outstanding
Debenture is required, such waiver shall not be effective until each holder of
the Trust Securities shall have consented to such waiver.
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Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture, but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon. If the
Holders of a majority in aggregate principal amount of the Outstanding
Debentures fail to waive such Event of Default, the holders of a majority in
aggregate liquidation amount of Preferred Securities shall have such right. No
such rescission shall affect any subsequent default or impair any right
consequent thereon. The provisions of this Section 5.13 shall be in lieu of
Section 316(a)(1)(B) of the Trust Indenture Act, and such Section 316(a)(1)(B)
of the Trust Indenture Act is hereby expressly excluded from this Indenture and
the Debentures, as permitted by the Trust Indenture Act.
SECTION 5.14 Undertaking for Costs. All parties to this
Indenture agree, and each Holder of any Debenture by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or
in any suit against the Trustee for any action taken or omitted by it as
Trustee the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against
any party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; but the provisions of
this Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Debentures, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium, if any) or interest (including any Additional Interest) on the
Debentures on or after the Maturity of the Debentures or to convert a Debenture
in accordance with Article 13. The provisions of this Section 5.14 shall be in
lieu of Section 315(e) of the Trust Indenture Act, and such Section 315(e) of
the Trust Indenture Act is hereby expressly excluded from this Indenture and
the Debentures, as permitted by the Trust Indenture Act.
SECTION 5.15 Waiver of Usury, Stay, or Extension Laws. The
Company covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any usury, stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and 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 such law had been enacted.
ARTICLE 6
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
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(i) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) 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, but in the case of any
such certificates or opinions which by any provisions hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or
not they conform to the requirements of this Indenture.
(b) In case an Event of Default 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;
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own grossly negligent action,
its own grossly negligent failure to act, or its own willful misconduct
except that;
(i) this Subsection shall not be construed to limit the
effect of Subsection (a) of this Section;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of Holders pursuant to Section 5.12
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this
Indenture.
(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 there shall be reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it;
(e) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
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SECTION 6.2 Notice of Defaults. Within 90 days after actual
knowledge by a Responsible Officer of the Trustee of the occurrence of any
default hereunder, the Trustee shall transmit by mail to all Holders of
Debentures, as their names and addresses appear in the Securities Register,
notice of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of
a default in the payment of the principal of (or premium, if any) or interest
(including any Additional Interest) on Debenture, the Trustee shall be fully
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Holders of Debentures; and provided, further,
that, except in the case of any default of the character specified in Section
5.1(c), no such notice to Holders of the Debentures shall be given until at
least 30 days after the occurrence thereof. For the purpose of this Section,
the term "default" means any event which is, or after notice or lapse of time
or both would become, an Event of Default.
SECTION 6.3 Certain Rights of Trustee. Subject to the
provisions of Section 6.1:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, Debenture or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, conclusively rely upon an Officers'
Certificate and an Opinion of Counsel;
(d) the Trustee may consult with counsel of its choice and the
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
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(f) the Trustee is not required to expend or risk its own
funds or otherwise incur personal financial liability in the performance
of its duties if the Trustee reasonably believes that repayment or
adequate indemnity is not reasonably assured to it;
(g) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, indenture, Debenture or other paper or document,
but the Trustee in its discretion may make such inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by
agent or attorney;
(h) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, custodians or nominees and the Trustee shall
not be responsible for any misconduct or negligence on any part of any
agent, custodian, nominee or attorney appointed with due care by it
hereunder; and
(i) in the event that the Trustee is also acting as a Paying
Agent, Authenticating Agent, Conversion Agent, and/or Securities
Registrar hereunder, the rights and protections afforded to the Trustee
pursuant to this Article 6 shall also be afforded to such Paying Agent,
Authenticating Agent, Conversion Agent, and/or Securities Registrar.
(j) the permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as a duty, and the
Trustee shall not be answerable for other than its grossly negligent
action, grossly negligent omission or its willful misconduct; and
(k) the Trustee shall not be charged with knowledge of any
Event of Default under Section 5.1 (other than an Event of Default under
Section 5.1(a) or (b) if the Trustee is also the Paying Agent with
respect to the Securities) hereof or the existence of any Subsidiary of
the Company unless the Trustee shall have received notice thereof in
accordance with Section 1.5 hereof from the Company or a Holder.
SECTION 6.4 Not Responsible for Recitals or Issuance of
Debentures. The recitals contained herein and in the Debentures, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Debentures. The Trustee shall not be accountable for the
use or application by the Company of the Debentures or the proceeds thereof.
SECTION 6.5 May Hold Debentures. The Trustee, any Paying Agent,
Securities Registrar or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Debentures and, subject
to Sections 6.8 and 6.13, may otherwise deal with the
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Company with the same rights it would have if it were not Trustee, Paying
Agent, Securities Registrar or such other agent.
SECTION 6.6 Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability of interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 6.7 Compensation and Reimbursement. The Company agrees
(a) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder in such amounts
as the Company and the Trustee shall agree from time to time (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including
the reasonable compensation and the expenses and disbursements of its
agents and counsel); and
(c) to indemnify the Trustee and its officers, directors and
employees for, and to hold it harmless against, any loss, liability or
expense (including the reasonable compensation and the expenses and
disbursements of its agents and counsel) incurred without negligence or
bad faith, arising out of or in connection with the acceptance or
administration of this trust or the performance of its duties hereunder,
including the costs and expenses of defending itself against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder. This Indemnification shall survive the
termination of this Agreement or the earlier resignation or removal of
the Trustee.
To secure the Company's payment obligations in this Section, the
Company and the Holders agree that the Trustee shall have a lien prior to the
Debentures on all money or property held or collected by the Trustee except
assets held in trust to pay principal and premium, if any, or interest on
particular Debentures pursuant to Section 4.1(a)(ii)(B), or pursuant to any
redemption pursuant to Article 11 hereof if monies have been deposited for such
redemption and notice has been given and the Redemption Date has passed. Such
lien shall survive the satisfaction and discharge of this Indenture or the
earlier resignation or removal of the Trustee.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 5.1(e) or (f) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under the Bankruptcy Reform Act of 1978 or a successor statute.
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SECTION 6.8 Disqualification; Conflicting Interests. The
Trustee shall be subject to the provisions of Section 310(b) of the Trust
Indenture Act. Nothing herein shall prevent the Trustee from filing with the
Commission the application referred to in the second to last paragraph of
Section 310(b) of the Trustee Indenture Act. The Trust Agreement and the
Guarantee shall be deemed to be specifically described in this Indenture for
the purposes of clause (i) of the first proviso contained in Section 310(b) of
the Trust Indenture Act.
SECTION 6.9 Corporate Trustee Required; Eligibility. There
shall at all times be a Trustee hereunder which shall be
(a) a corporation organized and doing business under the laws
of the United States of America or of any State, Territory or the
District of Columbia, authorized under such laws to exercise corporate
trust powers and subject to supervision or examination by Federal,
State, Territorial or District of Columbia authority, or
(b) a corporation or other Person organized and doing business
under the laws of a foreign government that is permitted to act as
Trustee pursuant to a rule, regulation or order of the Commission,
authorized under such laws to exercise corporate trust powers, and
subject to supervision or examination by authority of such foreign
government or a political subdivision thereof substantially equivalent
to supervision or examination applicable to United States institutional
trustees,
in either case having a combined capital and surplus of at least $50,000,000.
If such corporation publishes reports of condition at least annually, pursuant
to law or to the requirements of the aforesaid supervising or examining
authority, then, to the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article. Neither the Company nor any
Person directly or indirectly controlling, controlled by or under common
control with the Company shall serve as Trustee hereunder.
SECTION 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee
under Section 6.11.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a
successor Trustee shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning
Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
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(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Debentures,
delivered to the Trustee and to the Company.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 6.8
after written request therefor by the Company or by any Holder
who has been a bona fide Holder of a Debenture for at least six
months, or
(ii) the Trustee shall cease to be eligible under
Section 6.9 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
(iii) the Trustee shall become incapable of acting or
shall be adjudged as bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (A) the Company by Board Resolution may remove the
Trustee, or (B) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Debenture for at least six months may, on behalf of himself and all
other similarly situated Holders, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of
Trustee for any cause with respect to the Debentures, the Company, by a
Board Resolution, shall promptly appoint a successor Trustee. If, within
one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the
Debentures shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Debentures delivered to the Company
and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor
Trustee and supersede the successor Trustee appointed by the Company. If
no successor Trustee shall have been so appointed by the Company or the
Holders and accepted appointment in the manner hereinafter provided, any
Holder who has been a bona fide Holder of a Debenture for at least six
months may, subject to Section 5.14, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by
mailing written notice of such event by first-class mail, postage
prepaid, to the Holders of the Debentures as their name and addresses
appear in the Securities Register. Each notice shall include the name of
the successor Trustee and the address of its Corporate Trust Office.
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SECTION 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee, every such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or
removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee, but, on the written request of the Company or the
Successor Trustee, such retiring Trustee shall, upon payment of its
charges, execute and deliver an instrument transferring to such
successor, Trustee all the rights, powers and trusts of the retiring
Trustee and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all rights, power
and trusts referred to in paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business. Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Debentures shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Debentures so authenticated, and in case
any Debentures shall not have been authenticated, any successor to the Trustee
may authenticate such Debentures either in the name of any predecessor Trustee
or in the name of such successor Trustee, and in all cases the certificate of
authentication shall have the full force which it is provided anywhere in the
Debentures or in this Indenture that the certificate of the Trustee shall have.
SECTION 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or any
other obligor upon the Debentures), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 6.14 Appointment of Authenticating Agent. The Trustee
may appoint an Authenticating Agent or Agents, as described and with the powers
and obligations conferred by this Section 6.14 ("Authenticating Agent or
Agents"), with respect to the Debentures which shall be
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authorized to act on behalf of the Trustee to authenticate the Debentures
issued upon exchange, registration of transfer or partial redemption thereof,
and Debentures so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Debentures by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, or of any State, Territory or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of an Authenticating Agent shall be the successor
Authenticating Agent hereunder, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.6 to all Holders of the
Debentures. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named as
an Authenticating Agent. No successor Authenticating Agent shall be appointed
unless eligible under the provision of this Section.
The Trustee agrees to pay to each Authenticating Agent from time
to time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.7.
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If an appointment is made pursuant to this Section, the
Debentures may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternative certificate of authentication in the
following form:
This is one of the Debentures referred to in the within mentioned
indenture.
FIRST UNION NATIONAL BANK,
As Trustee
By:
----------------------------------
As Authenticating Agent
By:
----------------------------------
Authorized Officer
ARTICLE 7
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee (unless the
Trustee is acting as the Securities Registrar):
(a) quarterly at least five Business Days before each Interest
Payment Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of each such date,
and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished.
SECTION 7.2 Preservation of Information; Communications to
Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in
the most recent list furnished to the Trustee as provided in Section 7.1
and the names and addresses of Holders received by the Trustee in its
capacity as Securities Registrar. The Trustee may destroy any list
furnished to it as provided in Section 7.1 upon receipt of a new list so
furnished.
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(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the
Debentures, and the corresponding rights and privileges of the Trustee,
shall be as provided in the Trust Indenture Act.
(c) Every Holder of Debentures, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company
nor the Trustee nor any agent of either of them shall be held
accountable by reason of the disclosure of information as to the names
and addresses of the Holders made pursuant to the Trust Indenture Act.
SECTION 7.3 Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act, at the times and in the
manner provided pursuant thereto.
(b) Reports so required to be transmitted at stated intervals
of not more than 12 months shall be transmitted within 60 days after
December 31 in each calendar year, commencing with December 31, 1998.
(c) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock
exchange or self regulatory organization of which the Trustee has
received notice by the Company upon which the Debentures are listed and
also with the Commission. The Company will notify the Trustee in writing
whenever the Debentures are listed on any stock exchange or self-
regulatory organization.
SECTION 7.4 Reports by Company. The Company shall file with the
Trustee and with the Commission, and transmit to Holders, such information,
documents and other reports, and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided in
the Trust Indenture Act, provided that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 shall be filed with the
Trustee within 15 days after the same is required to be filed with the
Commission. Notwithstanding that the Company may not be required to remain
subject to the reporting requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Company shall continue to file with the Commission
and provide the Trustee and Holders with the annual reports and the
information, documents and other reports which are specified in Sections 13 and
15(d) of the Securities Exchange Act of 1934. The Company also shall comply
with the other provisions of Trust Indenture Act Section 314(a).
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ARTICLE 8
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain
Terms. The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and no Person shall consolidate with or merge into the
Company or convey, transfer or lease its properties and assets substantially as
an entirety to the Company, unless:
(a) in case the Company shall consolidate with or merge into
another Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the Person formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company substantially as an entirety shall be a Person
organized and existing under the laws of the United States of America or
any State 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, the due and punctual payment of the
principal of (and premium, if any) and interest (including any
Additional Interest) on all the Debentures and the performance of every
covenant of this Indenture on the part of the Company to be performed or
observed and shall have provided for conversion rights in accordance
with Article 13;
(b) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time, or
both, would become an Event of Default, shall have happened and be
continuing;
(c) such consolidation, merger, conveyance, transfer or lease
is permitted under the Trust Agreement and Guarantee and does not give
rise to any breach or violation of the Trust Agreement or Guarantee; and
(d) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or lease and any such
supplemental indenture complies with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with, and the Trustee, subject to Section 6.1, may
rely upon such Officers Certificate and Opinion of Counsel as conclusive
evidence that such transaction complies with this Section 8.1.
SECTION 8.2 Successor Corporation Substituted. Upon any
consolidation or merger by the Company with or into any other corporation, or
any conveyance, transfer or lease by the Company of its properties and assets
substantially as an entirety to any Person in accordance with Section 8.1, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease 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; and in the event of any such conveyance,
transfer or lease the Company shall be discharged from all obligations and
covenants under the Indenture and the Debentures and may be dissolved and
liquidated.
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Such successor corporation may cause to be signed, and may issue
either in its own name or in the name of the Company, any or all of the
Debentures issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee, and, upon the Company Order of such
successor corporation instead of the Company and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Debentures which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication pursuant to a Company Order such provisions and any Debentures
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee on its behalf for the purpose pursuant to such
provisions. All the Debentures so issued shall in all respects have the same
legal rank and benefit under this Indenture as the Debentures theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Debentures had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, conveyance or
lease, such changes in phraseology and form may be made in the Debentures
thereafter to be issued as may be appropriate.
ARTICLE 9
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders.
Without the consent of or notice to any Holder, the Company, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Debentures contained; or
(b) to convey, transfer, assign, mortgage or pledge any
property to or with the Trustee or to surrender any right or power
herein conferred upon the Company; or
(c) to add to covenants of the Company for the benefit of the
Holders of the Debentures or to surrender any right or power herein
conferred upon the Company; or
(d) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Article 13; or
(e) to add any additional Events of Default; or
(f) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with
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respect to matters or questions arising under this Indenture, provided
that such action pursuant to this clause shall not materially adversely
affect the interest of the Holders of Debentures and for so long as any
of the Preferred Securities shall remain outstanding, the holders of
such Preferred Securities; or
(g) to evidence and provide for the acceptance of appointment
hereunder by successor Trustee and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the Trust hereunder by more than one
Trustee, pursuant to the requirements of Section 6.11(b); or
(h) to comply with the requirements of the Commission in order
to effect or maintain the qualification of this Indenture under the
Trust Indenture Act; or
(i) to make provision for transfer procedures, certification,
book-entry provisions, the form of restricted securities legends, if
any, to be placed on Debentures, and all other matters required pursuant
to Section 3.5 or otherwise necessary, desirable or appropriate in
connection with the issuance of Debentures to holders of Preferred
Securities in the event of a distribution of Debentures by the Trust if
a Special Event occurs and is continuing.
SECTION 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount
of the Outstanding Debentures, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the
rights of the Holders of the Debentures under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the
Holder of each Outstanding Debenture affected thereby,
(a) except to the extent permitted by Section 3.11 with
respect to the extension of the interest payment period of the
Debentures, change the Stated Maturity of the principal of, or any
installment of interest (including any Additional Interest) on, the
Debentures, or reduce the principal amount thereof or the rate of
interest thereon or reduce any premium payable upon the redemption
thereof, or change the place of payment where, or the coin or currency
in which, any Debenture or interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or
after the Maturity thereof (or, in the case of redemption, on or after
the date fixed for redemption thereof), or
(b) adversely affect any right to convert or exchange any
Debenture or modify the provisions of this Indenture with respect to the
subordination of the Debentures in a manner adverse to such Holder; or
(c) reduce the percentage in principal amount of the
Outstanding Debentures, the consent of whose Holders is required for any
such supplemental indenture, or the consent of
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whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture; or
(d) modify any of the provisions of this Section, Section 4.1,
Section 5.8, Section 5.13 or Section 10.6, except to increase any such
percentage or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Debenture affected thereby, or the consent of the holders of all the
Preferred Securities as the case may be; or
(e) modify the provisions in Article 12 of this Indenture with
respect to the subordination of Outstanding Debentures in a manner
adverse to the Holders thereof;
provided that, so long as any Preferred Securities remain outstanding (i) no
such modification may be made that adversely affects the holders of such
Preferred Securities in any material respect, no termination of this Indenture
shall occur, and no waiver of any Event of Default or compliance with any
covenant under this Indenture shall be effective, without the prior consent of
the holders of at least a majority of the aggregate liquidation amount of such
Preferred Securities then outstanding unless and until the principal (and
premium, if any) of the Debentures and all accrued and unpaid interest
(including any Additional Interest) thereon have been paid in full and (ii)
where a consent under this Indenture would require the consent of each Holder
of Debentures, no such consent will be given by the Property Trustee without
the prior consent of each holder of the Preferred Securities.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 Execution of Supplemental Indentures. In executing
or accepting the additional trusts created by any supplemental indenture
permitted by this Article or the modifications thereby of the trust created by
this Indenture, the Trustee shall be entitled to receive, and (subject to
Section 6.1) shall be fully protected in conclusively relying upon, an
Officers' Certificate and an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture, and
that all conditions precedent have been complied with. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.4 Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes, and every Holder of the
Debentures theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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SECTION 9.5 Conformity with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 9.6 Reference in Debentures to Supplemental Indentures.
Debentures authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for
in such supplemental indenture. If the Company shall so determine, new
Debentures so modified as to conform, in the opinion of the Trustee and the
Board of Directors, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Debentures presented to the Trustee.
ARTICLE 10
COVENANTS
SECTION 10.1 Payment of Principal, Premium and Interest. The
Company covenants and agrees for the benefit of the Debentures that it will
duly and punctually pay the principal of (and premium, if any) and interest on
the Debentures in accordance with the terms of the Debentures and this
Indenture.
SECTION 10.2 Maintenance of Office or Agency. The Company will
maintain in the United States, an office or agency where Debentures may be
presented or surrendered for payment and an office or agency where Debentures
may be surrendered for transfer or exchange and where notices and demands to or
upon the Company in respect of the Debentures and this Indenture may be served.
The Company initially appoints the Trustee, acting through its Corporate Trust
Office, as its agent for said purposes. The Company will give prompt written
notice to the Trustee of any change in the location of any such office or
agency. If at any time the Company shall fail to maintain such office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more
other offices or agencies where the Debentures may be presented or surrendered
for any or all of such purposes, and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or
agency in the United States for such purposes. The Company will give prompt
written notice to the Trustee of any such designation and any change in the
location of any such office or agency.
SECTION 10.3 Money for Debenture Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to
the Debentures, it will, on or before each due date of the principal of (or
premium, if any) or interest on any of the Debentures, segregate
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and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (or premium, if any) or interest so becoming
due until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and will promptly notify the Trustee of its failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, on or
before each due date of the principal of or interest on the Debentures, deposit
with a Paying Agent a sum sufficient to pay the principal (or premium, if any)
or interest so becoming due, such sum to be held in trust for the benefit of
the Persons entitled to such principal and premium (if any) or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its failure so to act.
The Company will cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will:
(a) hold all sums held by it for the payment of the principal
of (or premium, if any) or interest on Debentures in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or
any other obligor upon the Debentures) in the making of any payment of
principal (or premium, if any) or interest;
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent; and
(d) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent, and, upon such payment by the Company or any
Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (or premium,
if any) or interest on any Debenture and remaining unclaimed for two years
after such principal (or premium, if any) or interest has become due and
payable shall (unless otherwise required by mandatory provision of applicable
escheat or abandoned or unclaimed property law) be paid on Company Request,
after all payments owing the Trustee have been paid, to the Company, or (if
then held by the Company) shall (unless otherwise required by mandatory
provision of applicable escheat or abandoned or unclaimed property law) be
discharged from such trust; and the Holder of such Debenture shall thereafter,
as
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an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall
thereupon cease.
SECTION 10.4 Payment of Taxes and Other Claims. The Company will
pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (a) all taxes, assessments and governmental charges levied
or imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (b) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity
is being contested in good faith by appropriate proceedings.
SECTION 10.5 Statement as to Compliance. The Company shall
deliver to the Trustee, within 120 days after the end of each calendar year of
the Company an Officers' Certificate (signed by at least one of the officers
referred to in Section 314(a)(4) of the Trust Indenture Act) covering the
preceding calendar year, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance, observance or
fulfillment of or compliance with any of the terms, provisions, covenants and
conditions of this Indenture, and if the Company shall be in default,
specifying all such defaults and the nature and status thereof of which they
may have knowledge. For the purpose of this Section 10.5, compliance shall be
determined without regard to any grace period or requirement of notice provided
pursuant to the terms of this Indenture.
SECTION 10.6 Waiver of Certain Covenants. The Company may omit
in any particular instance to comply with any covenant or condition set forth
in this Article 10, if before or after the time for such compliance the Holders
of at least a majority in principal amount of the Outstanding Debentures, by
Act of such Holders, either waive such compliance in such instance or generally
waive compliance with such covenant or condition, but no such waiver shall
extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company in respect of any such covenant or condition shall
remain in full force and effect.
SECTION 10.7 Additional Sums. In the event that (a) the Property
Trustee is the Holder of all of the Outstanding Debentures, (b) a Tax Event in
respect of the Trust shall have occurred and be continuing and (c) the Company
shall not have (i) redeemed the Debentures pursuant to Section 11.7 or 11.8 or
(ii) dissolved the Trust pursuant to Section 9.2(b) of the Trust Agreement, the
Company shall pay to the Trust (and its permitted successors or assigns under
the Trust Agreement) for so long as the Trust (or its permitted successor or
assignee) is the registered Holder of the Debentures, such additional amounts
as may be necessary in order that the amount of distributions (including any
Additional Amounts (as defined in the Trust Agreement)) then due and payable by
the Trust on the Preferred Securities and Common Securities that at any time
remain outstanding in accord with the terms thereof shall not be reduced as a
result of any Additional Taxes (the "Additional Sums"). Whenever in this
Indenture or the Debentures there is a reference in any
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context to the payment of principal of (or premium, if any) or interest on the
Debentures, such mention shall be deemed to include mention of the payments of
the Additional Sums provided for in this paragraph to the extent that, in such
context, Additional Sums are, were or would be payable in respect thereof
pursuant to the provisions of this paragraph and express mention of the payment
of Additional Sums (if applicable) in any provisions hereof shall not be
construed as excluding Additional Sums in those provisions hereof where such
express mention is not made, provided, however, that the extension of an
interest payment period pursuant to Section 3.11 of the Debentures shall not
extend the payment of any Additional Sums that may be due and payable during
such interest payment period.
SECTION 10.8 Additional Covenants. The Company covenants and
agrees with each Holder of Debentures that so long as the Debentures are
outstanding, if (i) there shall have occurred any event of which the Company
has actual knowledge that (A) with the giving of notice or the lapse of time or
both, would constitute an Event of Default hereunder and (B) in respect of
which the Company shall not have taken reasonable steps to cure, (ii) the
Company shall be in default with respect to its payment of any obligations
under the Guarantee or (iii) the Company shall have given notice of its
selection of an Extension Period as provided herein and shall not have
rescinded such notice, or such period, or any extension thereof, shall be
continuing, then the Company shall not, and shall cause any Subsidiary not to,
(x) declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any shares of the
Company's capital stock or (y) make any payment of principal, interest or
premium, if any, on or repay, repurchase or redeem any debt securities
(including guarantees of indebtedness for money borrowed) of the Company that
rank pari passu with or junior to the Debentures (other than (1) any dividend,
redemption, liquidation, interest, principal or guarantee payment by the
Company where the payment is made by way of securities (including capital
stock) that rank pari passu with or junior to the securities on which such
dividend, redemption, interest, principal or guarantee payment is being made,
(2) redemptions or purchases of any rights pursuant to any Rights Agreement and
the declaration of a dividend of such rights or the issuance of preferred stock
under such plans in the future, (3) payments under the Guarantee, (4) purchases
of Company Common Stock related to the issuance of Company Common Stock under
any of the Company's benefit plans for its directors, officers or employees,
(5) as a result of a reclassification of the Company's capital stock or the
exchange or conversion of one series or class of the Company's capital stock
for another series or class of the Company's capital stock and (6) the purchase
of fractional interests in shares of the Company's capital stock pursuant to
the conversion or exchange provisions of such capital stock or the security
being converted or exchanged).
The Company also covenants with each Holder of the Debentures (i)
that for so long as Preferred Securities are outstanding not to convert the
Debentures except pursuant to a notice of conversion delivered to the
Conversion Agent by a holder of Preferred Securities and (ii) to maintain
directly or indirectly 100% ownership of the Common Securities of the Trust;
provided, however, that any permitted successor of the Company hereunder may
succeed to the Company's ownership of such Common Securities, (iii) not to
voluntarily terminate, wind-up, liquidate or dissolve the Trust, except (a) in
connection with a distribution of the Debentures to the holders of Preferred
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Securities in dissolution of the Trust or (b) in connection with certain
mergers, consolidations or amalgamations permitted by the Trust Agreement and
(iv) to use its reasonable efforts, consistent with the terms and provisions of
the Trust Agreement to cause the Trust to remain a business trust and not to be
classified as an association taxable as a corporation for United States Federal
income tax purposes.
SECTION 10.9 Payment of Expenses of the Trust. In connection
with the offering, sale and issuance of the Debentures to the Property Trustee
and in connection with the sale of the Preferred Securities by the Trust, the
Company shall:
(a) pay for all costs, fees and expenses relating to the
offering, sale and issuance of the Trust Securities (as defined in the
Underwriting Agreement), including commissions, discounts and expenses
payable pursuant to the Underwriting Agreement and compensation of the
Trustee under the Indenture in accordance with the provisions of Section
6.7 of the Indenture;
(b) be responsible for and pay for all debts and obligations
(other than with respect to the Preferred Securities) of the Trust, pay
for all costs and expenses of the Trust (including, but not limited to,
costs and expenses relating to the organization of the Trust, the
offering, sale and issuance of the Preferred Securities (including
commissions, discounts and expenses in connection therewith), the fees
and expenses of the Property Trustee and the Delaware Trustee, the costs
and expenses relating to the operation of the Trust, including without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing
or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the
acquisition, financing, and disposition of Trust assets); and
(c) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all
liabilities, costs and expenses with respect to such taxes of the Trust.
ARTICLE 11
REDEMPTION OR EXCHANGE OF DEBENTURES
SECTION 11.1 Election to Redeem; Notice to Trustee. The election
of the Company to redeem any Debentures shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Company, the
Company shall, not less than 45 days prior to the date fixed for redemption
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such date and of the principal amount of Debentures to be
redeemed.
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SECTION 11.2 Selection of Debentures to Be Redeemed. If less
than all the Debentures are to be redeemed, the particular Debentures to be
redeemed shall be selected not more than 45 days prior to the Redemption Date
by the Trustee from the Outstanding Debentures not previously called for
redemption, by lot or by such other method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of a portion
of the principal amount of the Debentures Outstanding, provided that the
unredeemed portion of the principal amount of the Debentures be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for the Debentures.
The Trustee shall promptly notify the Company in writing of the
Debentures selected for partial redemption and 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 Debentures shall relate,
in the case of any Debenture redeemed or to be redeemed only in part, to the
portion of the principal amount of such Debenture which has been or is to be
redeemed. If the Company shall so direct, Debentures registered in the name of
the Company, any Affiliate or any Subsidiary thereof shall not be included in
the Debentures selected for redemption.
SECTION 11.3 Notice of Redemption. Notice of redemption shall be
given by first-class mail, postage prepaid, mailed not later than the thirtieth
(30th) day, and not earlier than the sixtieth (60th) day, prior to the date
fixed for redemption, to each Holder of Debentures to be redeemed, at the
address of such Holder as it appears in the Securities Register.
With respect to Debentures to be redeemed, each notice of
redemption shall state:
(a) the Redemption Date;
(b) the redemption price at which the Debentures are to be
redeemed (the "Redemption Price");
(c) if less than all Outstanding Debentures are to be
redeemed, the identification (and, in the case of partial redemption,
the respective principal amounts) of the particular Debentures to be
redeemed (including, if relevant, the CUSIP or ISIN number);
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debenture or portion thereof, and
that upon deposit with the Paying Agent interest thereon, if any, shall
cease to accrue on and after the Redemption Date;
(e) the place or places where the Debentures are to be
surrendered for payment of the redemption price at which the Debentures
are to be redeemed;
(f) that a Holder of Debentures who desires to convert
Debentures called for redemption must satisfy the requirements for
conversion contained in the Debentures, the
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then existing Conversion Price, and the date and time when the option to
convert shall expire; and
(g) the record date for the determination of holders entitled
to receive payment of any interest payable, as provided in Section 11.5.
Notice of redemption of Debentures to be redeemed at the election
of the Company shall be given by the Company or, at the Company's written
request, by the Trustee in the name and at the expense of the Company and shall
be irrevocable. The notice if mailed in the manner herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder
receives such notice. In any case, a failure to give such notice by mail or any
defect in the notice to the Holder of any Debenture designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Debenture.
SECTION 11.4 Deposit of Redemption Price. Prior to 12:00 noon,
New York City time, on the Redemption Date specified in the notice of
redemption given as provided in Section 11.3, the Company will deposit with the
Trustee or with one or more Paying Agents (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 4.2) an
amount of money sufficient to redeem on the Redemption Date all the Debentures
so called for redemption at the applicable Redemption Price.
If any Debenture called for redemption has been converted, any
money deposited with the Trustee or with any Paying Agent or so segregated and
held in trust for the redemption of such Debenture shall (subject to any right
of the Holder of such Debenture or any Predecessor Debenture to receive
interest as provided in the last paragraph of Section 3.7) be paid to the
Company upon Company Request or, if then held by the Company, shall be
discharged from such trust.
SECTION 11.5 Debentures Payable on Redemption Date. If notice of
redemption has been given as provided in Section 11.3, the Debentures so to be
redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, including any accrued interest (and any
Additional Interest) thereon, and from and after such date (unless the Company
shall default in the payment of the Redemption Price or any accrued interest on
(including any Additional Interest)) such Debentures shall cease to bear
interest. Upon surrender of any such Debenture for redemption in accordance
with said notice, such Debenture shall be paid by the Company at the Redemption
Price, including any accrued interest (and any Additional Interest) to the
Redemption Date, provided, however, that installments of interest on Debentures
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Debentures, or one of more Predecessor Debentures,
registered as such at the close of business on the relevant Regular Record
Dates or Special Record Dates, as the case may be, according to their terms and
the provisions of Section 3.7. In the event that any date on which any
Redemption Price is payable is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next succeeding day
which is a Business Day (and without any interest or other payment in respect
of any such delay), except that, if such Business Day is in the next succeeding
calendar year, such
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payment shall be made on the immediately preceding Business Day, with the same
force and effect as if made on such date. Payment of the Redemption Price shall
be made to the Holders of such Debentures as they appear on the Securities
Register for the Debentures on the relevant record date, which shall be the
date which is the fifteenth (15th) day (whether or not a Business Day)
preceding such Redemption Date.
If any Debenture called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Debenture.
SECTION 11.6 Debentures Redeemed in Part. In the event of any
redemption in part, the Company shall not be required to (i) issue, register
the transfer of or exchange any Debenture during a period beginning at 9:00
a.m. (New York City time) 15 Business Days before any selection for redemption
of Debentures and ending at 5:00 p.m. (New York City time) on the earliest date
in which the relevant notice of redemption is deemed to have been given to all
Holders of Debentures to be so redeemed and (ii) register the transfer of or
exchange any Debentures so selected for redemption, in whole or in part, except
for the unredeemed portion of any Debentures being redeemed in part.
Any Debenture which is to be redeemed only in part shall be
surrendered at the place of payment therefor (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 make available for delivery to
the Holder of such Debenture without service charge, a new Debenture or
Debentures, 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 Debenture so surrendered. Each Debenture shall be
subject to partial redemption only in the amount of $50 or integral multiples
thereof.
The Debentures are not entitled to the benefit of any Sinking or
like fund.
SECTION 11.7 Mandatory Redemption. Upon (i) repayment at
maturity or (ii) as a result of acceleration upon the occurrence and
continuation of an Event of Default, the Company shall redeem the Outstanding
Debentures, in whole but not in part, at a redemption price equal to 100% of
the principal amount of such Debentures plus any accrued and unpaid interest,
including any Additional Interest, to the date fixed for redemption.
SECTION 11.8 Optional Redemption. Except as set forth below, on
and after ________ __, ____and subject to the next succeeding sentence, the
Company shall have the right, at any time and from time to time, to redeem the
Debentures, in whole or in part, upon notice given as set forth in Section 11.3
during the twelve month periods beginning on __________ in each of the
following years at the indicated Redemption Price (expressed as a percentage of
the principal
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amount of the Debentures being redeemed), together with any accrued but unpaid
interest on the portion being redeemed:
Redemption Price Redemption Price
Year (% of principal amount) Year (% of principal amount)
---- ----------------------- ---- -----------------------
The Company may not redeem the Debentures in part unless all
accrued and unpaid interest has been paid in full on all outstanding Debentures
for all quarterly interest periods terminating on or prior to the giving of
notice of the Redemption Date.
If a Tax Event shall occur and be continuing, the Company shall
have the right, upon not less than 30 nor more than 60 days' notice, to redeem
the Debentures in whole or in part, for cash upon the later of (i) 90 days
following the occurrence of such Tax Event and (ii) ________ __, ____, at a
Redemption Price equal to the principal amount of such Debentures plus any
accrued and unpaid interest, including Additional Interest, to the date fixed
for such redemption.
SECTION 11.9 Exchange of Trust Securities for Debentures.
(a) At any time, the Company shall have the right to dissolve
the Trust and cause the Debentures to be distributed to the holders of
the Preferred Securities in dissolution of the Trust after satisfaction
of liabilities to creditors of the Trust as provided by applicable law.
(b) If a Special Event in respect of the Trust shall occur and
be continuing, the Company shall give the Property Trustee notice of the
same. If a Special Event in respect of the Trust shall occur and be
continuing, the Trust Agreement requires the Property Trustee to direct
the Conversion Agent (as defined in the Trust Agreement) to exchange all
outstanding Trust Securities for the Debentures having a principal
amount equal to the aggregate liquidation amount of the Trust Securities
to be exchanged with accrued interest in an amount equal to any unpaid
distributions (including any Additional Amounts) on the Trust Securities
provided that, in the case of a Tax Event that shall have occurred and
be continuing, the Company shall have the right to direct the Property
Trustee that less than all, or none, of the Trust Securities be so
exchanged (i) if and for so long as the Company shall
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have elected to pay any Additional Sums such that the amounts received
by holders of the Trust Securities that remain outstanding are not
reduced as a result of such Tax Event, and shall not have revoked any
such election or failed to make such payments or (ii) if the Company
shall instead elect to redeem the Debentures, in whole or in part, in
the manner set forth in Section 11.8.
ARTICLE 12
SUBORDINATION OF DEBENTURES
SECTION 12.1 Debentures Subordinate to Senior Debt. The Company
covenants and agrees, and each Holder of a Debenture, by its acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article, the payment of the principal of (and
premium, if any) and interest (including any Additional Interest) on each and
all of the Debentures are hereby expressly made junior and subordinate and
subject in right of payment to the prior payment in full of all amounts then
due and payable in respect of all Senior Debt (whether outstanding on the date
hereof or hereafter created, incurred, assumed or guaranteed), and that the
subordination is for the benefit of the holders of Senior Debt. Notwithstanding
the foregoing, any and all amounts payable to the Trustee pursuant to Section
6.7 are not subject to the provisions of Article 12.
SECTION 12.2 Payment Over of Proceeds Upon Dissolution, Etc.
Upon any payment or distribution of assets of the Company to creditors upon any
liquidation, dissolution, winding up, reorganization, assignment for the
benefit of creditors, marshaling of assets or any bankruptcy, insolvency, debt
restructuring or similar proceeding in connection with any insolvency or
bankruptcy proceeding of the Company (each such event, if any, herein sometimes
referred to as a "Proceeding"), then the holders of Senior Debt shall be
entitled to receive payment in full of principal of (and premium, if any) and
interest (including interest after the commencement of any such proceeding at
the rate specified in the applicable Senior Debt), if any, on such Senior Debt,
or provision shall be made for such payment in cash or cash equivalents or
otherwise in a manner satisfactory to the holders of Senior Debt, before the
Holders of the Debentures are entitled to receive or retain any payment or
distribution of any kind or character, whether in cash, property or Debentures
(including any payment or distribution which may be payable or deliverable by
reason of the payment of any other Debt of the Company (including the
Debentures) subordinated to the payment of the Debentures, but not including
any payments that are made from funds on deposit pursuant to Section
4.1(a)(ii)(B) or funds on deposit for the redemption of Debentures for which
notice of Redemption has been given and the applicable Redemption Date has
passed, such payment or distribution being hereinafter referred to as a "Junior
Subordinated Payment"), in respect of principal of (or premium, if any) or
interest (including any Additional Interest, if any) on the Debentures or on
account of the purchase or other acquisition of Debentures by the Company or
any Subsidiary and to that end the holders of Senior Debt shall be entitled to
receive, for application to the payment thereof any payment or distribution of
any kind of character, whether in cash, property
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or Debentures, including any Junior Subordinated Payment, which may be payable
or deliverable in respect of the Debentures in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Debenture shall have received
any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or Debentures, including any Junior Subordinated
Payment, before all Senior Debt is paid in full or payment thereof is provided
for in cash or cash equivalents or otherwise in a manner satisfactory to the
holders of Senior Debt, and if such fact shall, at or prior to the time of such
payment or distribution, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment or distribution shall
be paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making payment
or distribution of assets of the Company for application to the payment of all
Senior Debt remaining unpaid, to the extent necessary to pay all Senior Debt in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
For the purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include shares of stock of the Company, as reorganized
or readjusted, or securities of the Company or any other corporation provided
for by a plan of reorganization or readjustment which securities are
subordinated in right of payment to all then outstanding Senior Debt to
substantially the same extent as the Debentures are so subordinated as provided
in this Article. The consolidation of the Company with, or the merger of the
Company into, another Person or the liquidation or dissolution of the Company
following the sale of all or substantially all of its properties and assets as
an entirety to another Person or the liquidation or dissolution of the Company
following the sale of all or substantially all of its properties and assets as
an entirety to another Person upon the terms and conditions set forth in
Article 8 shall not be deemed a Proceeding for the purposes of this Section, if
the Person formed by such consolidation or into which the Company is merged or
the Person which acquires by sale such properties and assets as an entirety, as
the case may be, shall, as a part of such consolidation, merger, or sale comply
with the conditions set forth in Article 8.
SECTION 12.3 Prior Payment to Senior Debt upon Acceleration of
Debentures. In the event that the Debentures are declared due and payable
before their Maturity, then and in such event the holders of the Senior Debt
outstanding at the time the Debentures so become due and payable shall be
entitled to receive payment in full of all amounts due on or in respect of such
Senior Debt (including any amounts due upon acceleration), or provision shall
be made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, before the Holders of the
Debentures are entitled to receive any payment or distribution of any kind or
character, whether in cash, properties or securities (including any Junior
Subordinated Payment) by the Company on account of the principal of (or
premium, if any) or interest (including any Additional Interest) on the
Debentures or on account of the purchase or other acquisition of Debentures by
the Company or any Subsidiary.
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In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holders of the Debentures
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made known, as set forth in
Section 12.10, to a Responsible Officer of the Trustee or, as the case may be,
such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 12.2 would be applicable.
SECTION 12.4 No Payment When Senior Debt in Default.
(a) In the event and during the continuation of any default in
the payment of principal of (or premium, if any) or interest on any Senior
Debt, or in the event that any event of default with respect to any Senior Debt
shall have occurred and be continuing and shall have resulted in such Senior
Debt becoming or being declared due and payable prior to the date on which it
would otherwise have become due and payable, unless and until such event of
default shall have been cured or waived or shall have ceased to exist and such
acceleration shall have been rescinded or annulled, or (b) in the event any
judicial proceeding shall be pending with respect to any such default in
payment or such event or default, then no payment or distribution of any kind
or character, whether in cash, properties or Debentures (including any Junior
Subordinated Payment) shall be made by the Company on account of principal of
(or premium, if any) or interest (including any Additional Interest), if any,
on the Debentures or on account of the purchase or other acquisition of
Debentures by the Company or any Subsidiary other than payments made from funds
on deposit pursuant to Section 4.1(a)(ii)(B) or from funds on deposit for the
redemption of Debentures for which notice of redemption has been given and the
Redemption Date has passed.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holders of the Debentures
prohibited by the foregoing provisions of this Section, and if such fact shall,
at or prior to the time of such payment, have been made known as set forth in
Section 12.10, to a Responsible Officer of the Trustee or, as the case may be,
such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 12.2 would be applicable.
SECTION 12.5 Payment Permitted If No Default. Nothing contained
in this Article or elsewhere in this Indenture or in any of the Debentures
shall prevent (a) the Company, at any time except during the pendency of any
Proceeding referred to in Section 12.2 or under the conditions described in
Sections 12.3 and 12.4, from making payments at any time of principal of (or
premium, if any) or interest on the Debentures, or (b) the application by the
Trustee of any money deposited with it hereunder to the payment of or on
account of the principal of (or premium, if any) or interest
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(including any Additional Interest) on the Debentures or the retention of such
payment by the Holders, if, at the time of such application by the Trustee, a
Responsible Officer of the Trustee did not have actual knowledge that such
payment would have been prohibited by the provisions of this Article.
SECTION 12.6 Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all Senior Debt, or the provision for such
payment in cash or cash equivalents or otherwise in a manner satisfactory to
the holders of Senior Debt, the Holders of the Debentures shall be subrogated
to the extent of the payments or distributions made to the holders of such
Senior Debt pursuant to the provisions of this Article (equally and ratably
with the holders of all indebtedness of the Company which by its express terms
is subordinated to Senior Debt of the Company to substantially the same extent
as the Debentures are subordinated to the Senior Debt and is entitled to like
rights of subrogation by reason of any payments or distributions made to
holders of such Senior Debt) to the rights of the holders of such Senior Debt
to receive payments and distributions of cash, property and securities
applicable to the Senior Debt until the principal of (and premium, if any) and
interest on the Debentures shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior Debt of
any cash, property or securities to which the Holders of the Debentures or the
Trustee would be entitled except for the provisions of this Article, and no
payments pursuant to the provisions of this Article to the holders of Senior
Debt by Holders of the Debentures or the Trustee, shall, as among the Company,
its creditors other than holders of Senior Debt, and the Holders of the
Debentures, be deemed to be a payment or distribution by the Company to or on
account of the Senior Debt.
SECTION 12.7 Provisions Solely to Define Relative Rights. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Debentures on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article or elsewhere in this Indenture or in the Debentures is intended to or
shall (a) impair, as between the Company and the Holders of the Debentures, the
obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Debentures the principal of (and premium, if any) and interest
(including any Additional Interest) on the Debentures as and when the same
shall become due and payable in accordance with their terms, or (b) affect the
relative rights against the Company of the Holders of the Debentures and
creditors of the Company other than their rights in relation to the holders of
Senior Debt, or (c) prevent the Trustee or the Holder of any Debenture from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture including, without limitation, filing and voting claims in
any Proceeding, subject to the rights, if any, under this Article of the
holders of Senior Debt to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION 12.8 Trustee to Effectuate Subordination. Each Holder of
a Debenture by his or her acceptance thereof authorizes and directs the Trustee
on his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination provided in this Article and
appoints the Trustee his or her attorney-in-fact for any and all such purposes.
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SECTION 12.9 No Waiver of Subordination Provisions. No right of
any present or future holder of any Senior Debt 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 that any such holder may have or be otherwise charged with.
SECTION 12.10 Notice to Trustee. The Company shall give prompt
written notice to the Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in respect of the
Debentures. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Debentures, unless and until the Trustee shall
have received written notice thereof from the Company or a person representing
itself as a holder of Senior Debt or from any trustee, agent or representative
therefor (whether or not the facts contained in such notice are true).
SECTION 12.11 Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee, subject to the provisions of Article
6, and the Holders of the Debentures shall be entitled to conclusively rely
upon any order or decree entered by any court of competent jurisdiction in
which a Proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of
creditors, agent or other Person making such payment or distribution, delivered
to the Trustee or to the Holders of Debentures, for the purpose of ascertaining
the Persons entitled to participate in such payment or distribution, the
holders of the Senior Debt 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.
SECTION 12.12 Trustee Not Fiduciary for Holders of Senior Debt.
With respect to the holders of the Senior Debt of the Company, the Trustee
undertakes to perform or observe only such of its obligations and covenants as
are set forth in this Article 12, and no implied covenants or obligations with
respect to the holders of such Senior Debt shall be read into this Indenture
against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty
to the holders of such Senior Debt and, subject to the provisions of Section
6.3, the Trustee shall not be liable to the holder of any Senior Debt if it
shall pay over or deliver to the Holders, the Company, or any other person,
money or assets to which any holder of such Senior Debt shall be entitled to by
virtue of this Article 12 or otherwise.
SECTION 12.13 Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article with respect to any
Senior Debt which may at any time be held by it, to the same extent as any
other holder of Senior Debt, and, subject to the requirements of the Trust
Indenture Act, nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
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SECTION 12.14 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 shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intent and purposes as if such Paying Agent were named in this Article in
addition to or in place of the Trustee.
SECTION 12.15 Certain Conversions or Exchanges Deemed Payment.
For the purpose of this Article only, (a) the issuance and delivery of junior
securities upon conversion or exchange of Debentures shall not be deemed to
constitute a payment or distribution on account of the principal of (or
premium, if any) or interest (including any Additional Interest) on the
Debentures or on account of the purchase or other acquisition of Debentures,
and (b) the payment, issuance or delivery of cash (including any payments for
fractional shares), property or securities (other than junior securities) upon
conversion or exchange of a Debenture shall be deemed to constitute payment on
account of the principal of such security. For the purpose of this Section, the
term "junior securities" means (i) shares of any stock of any class of the
Company and (ii) securities of the Company which are subordinated in right of
payment to all Senior Debt which may be outstanding at the time of issuance or
delivery of such securities to substantially the same extent as, or to a
greater extent than, the Debentures are so subordinated as provided in this
Article.
ARTICLE 13
CONVERSION OF DEBENTURES
SECTION 13.1 Conversion Rights. Subject to and upon compliance
with the provisions of this Article, the Debentures are convertible, at the
option of the Holder, at any time prior to the redemption or maturity, into
fully paid and nonassessable shares of Company Common Stock at an initial
conversion rate of ________ shares of Company Common Stock for each $50 in
aggregate principal amount of Debentures (equal to a conversion price of
approximately $______ per share of Company Common Stock), subject to adjustment
as described in this Article 13 (as adjusted, the "Conversion Price"). A Holder
of Debentures may convert any portion of the principal amount of the Debentures
into that number of fully paid and nonassessable shares of Company Common Stock
(calculated as to each conversion to the nearest 1/100th of a share) obtained
by dividing the principal amount of the Debentures to be converted by the
Conversion Price. In case a Debenture or portion thereof is called for
redemption, such conversion right in respect of the Debenture or portion so
called shall expire at the close of business on the Redemption Date, unless the
Company defaults in making the payment due upon redemption.
SECTION 13.2 Conversion Procedures.
(a) In order to convert all or a portion of the Debentures,
the Holder thereof shall deliver to the Property Trustee, as conversion
agent or to such other agent appointed for such purposes (the
"Conversion Agent"), an irrevocable Notice of Conversion setting forth
the
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principal amount of Debentures to be converted, together with the name
or names, if other than the Holder, in which the shares of Company
Common Stock should be issued upon conversion and, if such Debentures
are definitive Debentures, surrender to the Conversion Agent the
Debentures to be converted, duly endorsed or assigned to the Company or
in blank. In addition, a holder of Preferred Securities may exercise its
right under the Trust Agreement to convert such Preferred Securities
into Company Common Stock by delivering to the Conversion Agent an
irrevocable Notice of Conversion setting forth the information called
for by the preceding sentence and directing the Conversion Agent (i) to
exchange such Preferred Security for a portion of the Debentures held by
the Trust (at an exchange rate of $50 principal amount of Debentures for
each Preferred Security) and (ii) to immediately convert such
Debentures, on behalf of such holder, into Company Common Stock pursuant
to this Article 13 and, if such Preferred Securities are in definitive
form, surrendering such Preferred Securities, duly endorsed or assigned
to the Company or in blank. So long as any Preferred Securities are
outstanding, the Trust shall not convert any Debentures except pursuant
to a Notice of Conversion delivered to the Conversion Agent by a holder
of Preferred Securities.
If a Notice of Conversion is delivered on or after the Regular
Record Date and prior to the subsequent Interest Payment Date, the
Holder of record on the Regular Record Date will be entitled to receive
the interest paid on the subsequent Interest Payment Date on the portion
of Debentures to be converted notwithstanding the conversion thereof
prior to such Interest Payment Date. Except as otherwise provided in the
immediately preceding sentence, in the case of any Debenture which is
converted, interest whose Stated Maturity is on or after the date of
conversion of such Debenture shall not be payable, and the Company shall
not make nor be required to make any other payment, adjustment or
allowance with respect to accrued but unpaid interest on the Debentures
being converted, which shall be deemed to be paid in full. Debentures
submitted for conversion prior to the expiration of conversion rights as
provided in Section 13.3 shall be deemed to have been effected
immediately prior to the close of business on the day on which the
Notice of Conversion was received (the "Conversion Date") by the
Conversion Agent from the Holder or from a holder of the Preferred
Securities effecting a conversion thereof pursuant to its conversion
rights under the Trust Agreement, as the case may be. The Person or
Persons entitled to receive Company Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder or
holders of such Company Common Stock as of the Conversion Date and such
Person or Persons will cease to be a record Holder or record Holders of
the Debentures on that date. As promptly as practicable on or after the
Conversion Date, the Company shall issue and deliver at the office of
the Conversion Agent, unless otherwise directed by the Holder or holder
in the Notice of Conversion, a certificate or certificates for the
number of full shares of Company Common Stock issuable upon such
conversion, together with the cash payment, if any, in lieu of any
fraction of any share to the Person or Persons entitled to receive the
same. The Conversion Agent shall deliver such certificate or
certificates to such Person or Persons.
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(b) The Company's delivery upon conversion of the fixed number
of shares of Company Common Stock into which the Debentures are
convertible (together with the cash payment, if any, in lieu of
fractional shares) shall be deemed to satisfy the Company's obligation
to pay the principal amount at Maturity of the portion of Debentures so
converted and any unpaid interest (including Additional Interest)
accrued on such Debentures at the time of such conversion.
(c) No fractional shares of Company Common Stock will be
issued as a result of conversion, but in lieu thereof, the Company shall
pay to the Conversion Agent a cash adjustment in an amount equal to the
same fraction of the Current Market Price with respect to such
fractional interest on the date on which the Debentures or Preferred
Securities, as the case may be, were duly surrendered to the Conversion
Agent for conversion, and the Conversion Agent in turn will make such
payment, if any, to the Holder of the Securities or the holder of the
Preferred Securities so converted.
(d) In the event of the conversion of any Debenture in part
only, a new Debenture or Debentures for the unconverted portion thereof
will be issued in the name of the Holder thereof upon the cancellation
of the Debenture converted in part in accordance with Section 3.5.
(e) In effecting the conversion transactions described in this
Section, the Conversion Agent is acting as agent of the holders of
Preferred Securities (in the exchange of Preferred Securities for
Debentures) and as agent of the Holders of Debentures (in the conversion
of Debentures into Company Common Stock), as the case may be, directing
it to effect such conversion transactions. The Conversion Agent is
hereby authorized (i) to exchange Debentures held by the Trust from time
to time for Preferred Securities in connection with the conversion of
such Preferred Securities in accordance with this Article 13 and (ii) to
convert all or a portion of the Debentures into Company Common Stock and
thereupon to deliver such shares of Company Common Stock in accordance
with the provisions of this Article 13 and to deliver to the Trust a new
Debenture or Debentures for any resulting unconverted principal amount.
(f) The Company shall at all times reserve and keep available
out of its authorized and unissued Company Common Stock, solely for
issuance upon the conversion of the Debentures, such number of shares of
Company Common Stock as shall from time to time be issuable upon the
conversion of all the Debentures then outstanding. Notwithstanding the
foregoing, the Company shall be entitled to deliver upon conversion of
Debentures shares of Company Common Stock reacquired and held in the
treasury of the Company (in lieu of the issuance of authorized and
unissued shares of Company Common Stock) so long as any such treasury
shares are free and clear of all liens, charges, security interests or
encumbrances. Whenever the Company issues shares of Company Common Stock
upon conversion of Debentures, and the Company has in effect at such
time a stock purchase rights agreement ("Rights Agreement") under which
holders of Company Common
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Stock are issued rights ("Rights") entitling the holders under certain
circumstances to purchase an additional share or shares of stock, the
Company will issue, together with each such share of Company Common
Stock, such number of Rights (which number may be a fraction) as shall
at that time be issuable with a share of Company Common Stock pursuant
to such stock purchase rights agreement. Any shares of Company Common
Stock issued upon conversion of the Debentures shall be duly authorized,
validly issued and fully paid and nonassessable. The Conversion Agent
shall deliver the shares of Company Common Stock received upon
conversion of the Debentures to the converting Holder free and clear of
all liens, charges, security interests and encumbrances, except for
United States withholding taxes. The Company shall use its reasonable
best efforts to obtain and keep in force such governmental or regulatory
permits or other authorizations as may be required by law, and shall
comply with all applicable requirements as to registration or
qualification of Company Common Stock (and all requirements to list
Company Common Stock issuable upon conversion of Debentures that are at
the time applicable), in order to enable the Company to lawfully issue
Company Common Stock upon conversion of the Debentures and to lawfully
deliver Company Common Stock to each Holder upon conversion of the
Debentures.
(g) The Company will pay any and all taxes that may be payable
in respect of the issue or delivery of shares of Company Common Stock
on conversion of Debentures. The Company shall not, however, be required
to pay any tax which may be payable in respect of any transfer involved
in the issue and delivery of shares of Company Common Stock in a name
other than that in which the Debentures so converted were registered,
and no such issue or delivery shall be made unless and until the Person
requesting such issue has paid to the Conversion Agent the amount of any
such tax, or has established to the satisfaction of the Conversion Agent
that such tax has been paid.
(h) Nothing in this Article 13 shall limit the requirement of
the Company to withhold taxes pursuant to the terms of the Debentures or
as set forth in this Agreement or otherwise require the Trustee or the
Company to pay any amounts on account of such withholdings.
SECTION 13.3 Expiration of Conversion Rights. The conversion
rights of Holders of Debentures shall expire at the close of business on the
date set for redemption of the Debentures upon the redemption or Stated
Maturity of the Debentures.
SECTION 13.4 Conversion Price Adjustments. The conversion price
shall be subject to adjustment (without duplication) from time to time as
follows:
(a) In case the Company shall, while any of the Debentures are
Outstanding, (i) pay a dividend or make a distribution with respect to
its Company Common Stock exclusively in shares of Company Common Stock,
(ii) subdivide its outstanding shares of Company Common Stock, (iii)
combine its outstanding shares of Company Common Stock into a smaller
number of shares or (iv) issue by reclassification of its shares of
Company
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Common Stock any shares of capital stock of the Company, the conversion
privilege and the Conversion Price in effect immediately prior to such
action shall be adjusted so that the Holder of any Debentures thereafter
surrendered for conversion shall be entitled to receive the number of
shares of capital stock of the Company which he would have owned
immediately following such action had such Debentures been converted
immediately prior thereto. An adjustment made pursuant to this
subsection (a) shall become effective immediately after the record date
in the case of a dividend or other distribution and shall become
effective immediately after the effective date in case of a subdivision,
combination or reclassification (or immediately after the record date if
a record date shall have been established for such event). If, as a
result of an adjustment made pursuant to this subsection (a), the Holder
of any Debenture thereafter surrendered for conversion shall become
entitled to receive shares of two or more classes or series of capital
stock of the Company, the Board of Directors (whose determination shall
be conclusive and shall be described in a Board Resolution filed with
the Trustee) shall determine the allocation of the adjusted Conversion
Price between or among shares of such classes or series of capital
stock. In the event that such dividend, distribution, subdivision,
combination or issuance is not so paid or made, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be
in effect if such record date had not been fixed.
(b) In case the Company shall, while any of the Debentures are
Outstanding, issue rights or warrants to all holders of its Company
Common Stock entitling them (for a period expiring within 45 days after
the record date for the determination of stockholders entitled to
receive such rights or warrants) to subscribe for or purchase shares of
Company Common Stock at a price per share less than the Current Market
Price per share of Company Common Stock on such record date, the
Conversion Price for the Debentures 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 issuance of such rights or
warrants by a fraction of which the numerator shall be the number of
shares of Company Common Stock outstanding on the date of issuance of
such rights or warrants plus 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, and of which
the denominator shall be the number of shares of Company Common Stock
outstanding on the date of issuance of such rights or warrants plus the
number of additional shares of Company Common Stock offered for
subscription or purchase. Such adjustment shall become effective
immediately after the record date for the determination of stockholders
entitled to receive such rights or warrants. For the purposes of this
subsection, the number of shares of Company Common Stock at any time
outstanding shall not include shares held in the treasury of the
Company. The Company shall not issue any rights or warrants in respect
of shares of Company Common Stock held in the treasury of the Company.
In case any rights or warrants referred to in this subsection in respect
of which an adjustment shall have been made shall expire unexercised
within 45 days after the same shall have been distributed or issued by
the Company, the Conversion Price shall be readjusted at the time of
such expiration to the Conversion Price that would have been in
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effect if no adjustment had been made on account of the distribution or
issuance of such expired rights or warrants.
(c) Subject to the last sentence of this subparagraph, in case
the Company shall, by dividend or otherwise, distribute to all holders
of its Company Common Stock evidences of its indebtedness, shares of any
class or series of capital stock, cash or assets (including securities,
but excluding any rights or warrants referred to in subparagraph (b),
any dividend or distribution paid exclusively in cash and any dividend
or distribution referred to in subparagraph (a) of this Section 13.4),
the Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect
immediately prior to the effectiveness of the Conversion Price reduction
contemplated by this subparagraph (c) by a fraction of which the
numerator shall be the Current Market Price per share of Company Common
Stock on the date fixed for the payment of such distribution (the
"Reference Date") less the fair market value (as determined in good
faith by the Board of Directors, whose determination shall be conclusive
and described in a resolution of the Board of Directors), on the
Reference Date, of the portion of the evidences of indebtedness, shares
of capital stock, cash and assets so distributed applicable to one share
of Company Common Stock and the denominator shall be such Current Market
Price per share of Company Common Stock, such reduction to become
effective immediately prior to the opening of business on the day
following the Reference Date. In the event that such dividend or
distribution is not so paid or made, the Conversion Price shall again be
adjusted to be the Conversion Price which would then be in effect if
such dividend or distribution had not occurred. For purposes of this
subparagraph (c), any dividend or distribution that includes shares of
Company Common Stock or rights or warrants to subscribe for or purchase
shares of Company Common Stock shall be deemed instead to be (i) a
dividend or distribution of the evidences of indebtedness, shares of
capital stock, cash or assets other than such shares of Company Common
Stock or such rights or warrants (making any Conversion Price reduction
required by this subparagraph (c)) immediately followed by (ii) a
dividend or distribution of such shares of Company Common Stock or such
rights or warrants (making any further conversion price reduction
required by subparagraph (a) or (b)), except (A) the Reference Date of
such dividend or distribution as defined in this subparagraph shall be
substituted as (x) "the record date in the case of a dividend or other
distribution," and (y) "the record date for the determination of
stockholders entitled to receive such rights or warrants" and (z) "the
date fixed for such determination" within the meaning of subparagraphs
(a) and (b) and (B) any shares of Company Common Stock included in such
dividend or distribution shall not be deemed outstanding for purposes of
computing any adjustment of the conversion price in subparagraph (a).
(d) In case the Company shall pay or make a dividend or other
distribution on its Company Common Stock exclusively in cash (excluding
(i) all cash dividends, if the amount thereof does not exceed the per
share amount of the immediately preceding regular cash dividend (as
adjusted to reflect any of the events referred to in subparagraphs (a),
(b), (c), (d) or (e) of this Section) and (ii) all cash dividends, if
the annualized amount thereof per share
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of Company Common Stock does not exceed 12.5% of the Current Market
Price per share of Company Common Stock on the trading day immediately
preceding the date of declaration of such dividend), the Conversion
Price shall be reduced so that the same shall equal the price determined
by multiplying the Conversion Price in effect immediately prior to the
effectiveness of the Conversion Price reduction contemplated by this
subparagraph (d) by a fraction of which the numerator shall be the
Current Market Price per share of Company Common Stock on the date fixed
for the payment of such distribution less the amount of cash so
distributed (excluding that portion of such distribution that does not
exceed 12.5% of the Current Market Price per share, determined as
provided above) applicable to one share of Company Common Stock and the
denominator shall be such Current Market Price per share of Company
Common Stock, such reduction to become effective immediately prior to
the opening of business on the day following the date fixed for the
payment of such distribution; provided, however, that in the event the
portion of the cash so distributed applicable to one share of Company
Common Stock is equal to or greater than the Current Market Price per
share of Company Common Stock on the record date mentioned above
(excluding that portion of such distribution that does not exceed 12.5%
of the Current Market Price per share, determined as provided above), in
lieu of the foregoing adjustment, adequate provision shall be made so
that each Holder of shares of Debentures shall have the right to receive
upon conversion the amount of cash such Holder would have received had
such Holder converted each share of the Debentures immediately prior to
the record date for the distribution of the cash (less that portion of
such distribution that does not exceed 12.5% of the Current Market Price
per share, determined as provided above). In the event that such
dividend or distribution is not so paid or made, the Conversion Price
shall again be adjusted to be the conversion price which would then be
in effect if such record date had not been fixed.
(e) In case a tender or exchange offer (other than an odd-lot
offer) made by the Company or any Subsidiary of the Company for all or
any portion of Company Common Stock shall expire and such tender or
exchange offer shall involve the payment by the Company or such
Subsidiary of consideration per share of Company Common Stock having a
fair market value (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors) at the last time (the "Expiration
Time") tenders or exchanges may be made pursuant to such tender or
exchange offer (as it shall have been amended) that exceeds 110% of the
Current Market Price per share of Company Common Stock on the trading
day next succeeding the Expiration Time, the Conversion Price shall be
reduced so that the same shall equal the price determined by multiplying
the Conversion Price in effect immediately prior to the effectiveness of
the Conversion Price reduction contemplated by this subparagraph (e) by
a fraction of which the numerator shall be the number of shares of
Company Common Stock outstanding (including any tendered or exchanged
shares) at the Expiration Time (including the Purchased Shares) (as
defined below) multiplied by the Current Market Price per share of
Company Common Stock on the Trading Day next succeeding the Expiration
Time and the denominator shall be the sum of (x) the fair market value
(determined as aforesaid) of the
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aggregate consideration payable to stockholders based on the acceptance
(up to any maximum specified in the terms of the tender or exchange
offer) of all shares validly tendered or exchanged and not withdrawn as
of the Expiration Time (the shares deemed so accepted, up to any such
maximum, being referred to as the "Purchased Shares") (excluding that
portion of such consideration that does not exceed 110% of the Current
Market Price per share) and (y) the product of the number of shares of
Company Common Stock outstanding (less any Purchased Shares) at the
Expiration Time and the Current Market Price per share of Company Common
Stock on the trading day next succeeding the Expiration Time, such
reduction to become effective immediately prior to the opening of
business on the day following the Expiration Time. In the event that
such tender or exchange offer is not so made, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in
effect if such record date had not been fixed.
(f) If the distribution date for any Rights of the Company
provided in any Rights Agreement occurs prior to the Conversion Date,
and a Holder of the Debentures who converts such Debentures after such
distribution date is not entitled to receive the Rights that would
otherwise be attached (but for the date of conversion) to the shares of
Company Common Stock received upon such conversion, then an adjustment
shall be made to the Conversion Price pursuant to clause (ii) of Section
13.4(a) as if the Rights were being distributed to Company Common
Stockholders of the Company immediately prior to such conversion. If
such an adjustment is made and the Rights are later redeemed,
invalidated or terminated, then a corresponding reversing adjustment
shall be made to the Conversion Price, on an equitable basis, to take
account of such event.
(g) The Company shall have the right to reduce from time to
time the Conversion Price by any amount selected by the Company for any
period of at least 30 days, provided, that Company shall give at least
15 days' written notice of such reduction to the Trustee and the
Property Trustee. The Company may, at its option, make such reductions
in the Conversion Price, in addition to those set forth above in Section
13.4(a), as the Board of Directors deems advisable to avoid or diminish
any income tax to holders of Company Common Stock resulting from any
dividend or distribution of stock (or rights to acquire stock) or from
any event treated as such for United States Federal income tax purposes.
(h) Notwithstanding anything to the contrary in this Section
13.4, no adjustment of the Conversion Price will be made upon the
issuance of any shares of Company Common Stock (or securities
convertible or exchangeable for Company Common Stock), except as
specifically provided above, including pursuant to any present or future
plan providing for the reinvestment of dividends or interest payable on
securities of the Company and the investment of additional optional
amounts in shares of Company Common Stock under any such plan, or the
issuance of any shares of Company Common Stock or options or rights to
purchase such shares pursuant to any present or future employee benefit
plan or program of the Company or pursuant to any option, warrant,
right, or exercisable, exchangeable or convertible security which does
not constitute an issuance to all holders of Company
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Common Stock of rights or warrants entitling holders of such rights or
warrants to subscribe for or purchase Company Common Stock at less than
the Current Market Price. Further, such issuances shall not be deemed to
constitute an issuance of Company Common Stock or exercisable,
exchangeable or convertible securities by the Company to which any of
the adjustment provisions described above applies. There shall also be
no adjustment of the Conversion Price in case of the issuance of any
stock (or securities convertible into or exchangeable for stock) of the
Company except as specifically described in this Article 13. No
adjustment in the Conversion Price will be required unless such
adjustment would require an increase or decrease of at least 1% of the
Conversion Price, but any adjustment that would otherwise be required to
be made shall be carried forward and taken into account in a subsequent
adjustment.
(i) If any action would require adjustment of the Conversion
Price pursuant to more than one of the provisions described above, only
one adjustment shall be made and such adjustment shall be the amount of
adjustment that has the highest absolute value to the Holder of the
Debentures.
SECTION 13.5 Fundamental Change.
(a) In the event that the Company is a party to any
transaction (including, without limitation, a merger other than a merger
that does not result in a reclassification, conversion, exchange or
cancellation of Company Common Stock), consolidation, sale of all or
substantially all of the assets of the Company, recapitalization or
reclassification of Company Common Stock (other than a change in par
value, or from par value to no par value, or from no par value to par
value or as a result of a subdivision or combination of Company Common
Stock) or any compulsory share exchange (each of the foregoing being
referred to as a "Transaction"), in each case, as a result of which
shares of Company Common Stock shall be converted into the right to
receive, or shall be exchanged for, (i) in the case of any Transaction
other than a Transaction involving a Common Stock Fundamental Change
(and subject to funds being legally available for such purpose under
applicable law at the time of such conversion), securities, cash or
other property, each Debenture shall thereafter be convertible into the
kind and, in the case of a Transaction which does not involve a
Fundamental Change, amount of securities, cash and other property
receivable upon the consummation of such Transaction by a holder of that
number of shares of Company Common Stock into which a Debenture was
convertible immediately prior to such Transaction, or (ii) in the case
of a Transaction involving a Common Stock Fundamental Change, common
stock, each Debenture shall thereafter be convertible (in the manner
described herein) into common stock of the kind received by holders of
Company Common Stock (but in each case after giving effect to any
adjustment discussed in paragraphs (b) and (c) relating to a Fundamental
Change if such Transaction constitutes a Fundamental Change). The
holders of Debentures or Preferred Securities will have no voting rights
with respect to any Transaction.
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(b) If any Fundamental Change occurs, then the Conversion
Price in effect will be adjusted immediately after such Fundamental
Change as described in paragraph (c) below. In addition, in the event of
a Common Stock Fundamental Change, each Debenture shall be convertible
solely into common stock of the kind received by holders of Company
Common Stock as a result of such Common Stock Fundamental Change.
(c) The Conversion Price in the case of any Transaction
involving a Fundamental Change will be adjusted immediately after such
Fundamental Change:
(i) in the case of a Non-Stock Fundamental Change, the
Conversion Price of the Debentures will thereupon become the
lower of (A) the Conversion Price in effect immediately prior to
such Non-Stock Fundamental Change, but after giving effect to any
other prior adjustments effected pursuant to the preceding
paragraphs, and (B) the result obtained by multiplying the
greater of the Applicable Price or the then applicable Reference
Market Price by a fraction of which the numerator will be $50 and
the denominator will be (x) the amount of the Redemption Price
for one Debenture if the Redemption Date were the date of such
Non-Stock Fundamental Change (or, for the period commencing on
the first date of original issuance of the Debentures and through
________ __, ____, and the twelve-month periods commencing
________ __, ____, _______ __, ____ and _______ __, ____, the
product of ______%, _______%, _____% and _____%, respectively,
multiplied by $50) plus (y) any then-accrued and unpaid interest
on one Debenture; and
(ii) in the case of a Common Stock Fundamental Change,
the Conversion Price of the Debentures in effect immediately
prior to such Common Stock Fundamental Change, but after giving
effect to any other prior adjustments effected pursuant to the
preceding paragraphs, will thereupon be adjusted by multiplying
such Conversion Price by a fraction of which the numerator will
be the Purchaser Stock Price and the denominator will be the
Applicable Price; provided, however, that in the event of a
Common Stock Fundamental Change in which (A) 100% of the value of
the consideration received by a holder of common stock is common
stock of the successor, acquiror, or other third party (and cash,
if any, is paid only with respect to any fractional interests in
such common stock resulting from such Common Stock Fundamental
Change) and (B) all of common stock will have been exchanged for,
converted into, or acquired for common stock (and cash with
respect to fractional interests) of the successor, acquiror, or
other third party, the Conversion Price of the Debentures in
effect immediately prior to such Common Stock Fundamental Change
will thereupon be adjusted by multiplying such Conversion Price
by a fraction of which the numerator will be one and the
denominator will be the number of shares of common stock of the
successor, acquiror, or other third party received by a holder of
one share of common stock as a result of such Common Stock
Fundamental Change.
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SECTION 13.6 Notice of Adjustments of Conversion Price. Whenever
the Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted conversion price
and shall prepare a certificate signed by the Chief Financial Officer or
the Treasurer of the Company setting forth the adjusted conversion price
and showing in reasonable detail the facts upon which such adjustment is
based, and such certificate shall forthwith be filed with the Trustee,
the Conversion Agent and the transfer agent for the Preferred Securities
and the Debentures; and
(b) a notice stating the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall as soon as
practicable be mailed by the Company to all record holders of Preferred
Securities and the Debentures at their last addresses as they appear
upon the stock transfer books of the Company and the Trust and the
Securities Registrar.
SECTION 13.7 Prior Notice of Certain Events. In case:
(a) the Company shall (i) declare any dividend (or any other
distribution) on its Company Common Stock, other than (A) a dividend
payable in shares of Company Common Stock or (B) a dividend payable in
cash that would not require an adjustment pursuant to Section 13.4(c) or
(d) or (ii) authorize a tender or exchange offer that would require an
adjustment pursuant to Section 13.4(e);
(b) the Company shall authorize the granting to all holders of
Company Common Stock of rights or warrants to subscribe for or purchase
any shares of stock of any class or series or of any other rights or
warrants;
(c) of any reclassification of Company Common Stock (other
than a subdivision or combination of the outstanding Company Common
Stock, or a change in par value, or from par value to no par value, or
from no par value to par value), or of any consolidation or merger to
which the Company is a party and for which approval of stockholders of
the Company shall be required (except solely as a result of the rules of
the New York Stock Exchange or the NASD), or of the sale or transfer of
all or substantially all of the assets of the Company or of any
compulsory share exchange whereby Company Common Stock is converted into
other securities, cash or other property; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then the Company shall (A) if any Preferred Securities are outstanding under
the Trust Agreement, cause to be filed with the transfer agent for the
Preferred Securities, and shall cause to be mailed to the holders of record of
the Preferred Securities, at their last addresses as they shall appear upon the
stock transfer books of the Trust or (B) shall cause to be mailed to all
Holders at their last addresses
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as they shall appear in the Security Register, at least 15 days prior to the
applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record (if any) is to be taken for the purpose of such
dividend, distribution, rights or warrants or, if a record is not to be taken,
the date as of which the holders of Company Common Stock of record to be
entitled to such dividend, distribution, rights or warrants are to be
determined or (y) the date on which such reclassification, consolidation,
merger, sale, transfer, share exchange, dissolution, liquidation or winding up
is expected to become effective, and the date as of which it is expected that
holders of Company Common Stock of record shall be entitled to exchange their
shares of Company Common Stock for securities, cash or other property
deliverable upon such reclassification, consolidation, merger, sale, transfer,
share exchange, dissolution, liquidation or winding up (but no failure to mail
such notice or any defect therein or in the mailing thereof shall affect the
validity of the corporate action required to be specified in such notice).
SECTION 13.8 Certain Additional Rights. In case the Company
shall, by dividend or otherwise, declare or make a distribution on its Company
Common Stock referred to in Section 13.4(c) or 13.4(d) (including, without
limitation, dividends or distributions referred to in the last sentence of
Section 13.4(c)), the Holders of the Debentures, upon the conversion thereof
subsequent to the close of business on the date fixed for the determination of
stockholders entitled to receive such distribution and prior to the
effectiveness of the Conversion Price adjustment (such that the Conversion
Price is not adjusted with respect to such distribution) in respect of such
distribution, shall also be entitled to receive for each share of Company
Common Stock into which the Debentures are converted, the portion of the shares
of Company Common Stock, rights, warrants, evidences of indebtedness, shares of
capital stock, cash and assets so distributed applicable to one share of
Company Common Stock; provided, however, that, at the election of the Company
(whose election shall be evidenced by a resolution of the Board of Directors)
with respect to all Holders so converting, the Company may, in lieu of
distributing to such Holder any portion of such distribution not consisting of
cash or securities of the Company, pay such Holder an amount in cash equal to
the fair market value thereof (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors). If any conversion of Debentures
described in the immediately preceding sentence occurs prior to the payment
date for a distribution to holders of Company Common Stock which the Holder of
Debentures so converted is entitled to receive in accordance with the
immediately preceding sentence, the Company may elect (such election to be
evidenced by a resolution of the Board of Directors) to distribute to such
Holder a due ▇▇▇▇ for the shares of Company Common Stock, rights, warrants,
evidences of indebtedness, shares of capital stock, cash or assets to which
such Holder is so entitled, provided, that such due ▇▇▇▇ (i) meets any
applicable requirements of the principal national securities exchange or other
market on which Company Common Stock is then traded and (ii) requires payment
or delivery of such shares of Company Common Stock, rights, warrants, evidences
of indebtedness, shares of capital stock, cash or assets no later than the date
of payment or delivery thereof to holders of shares of Company Common Stock
receiving such distribution.
SECTION 13.9 Restrictions on Company Common Stock Issuable Upon
Conversion.
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(a) Shares of Company Common Stock to be issued upon
conversion of a Debenture in respect of Preferred Securities shall bear
such restrictive legends as the Company may provide in accordance with
applicable law.
(b) If shares of Company Common Stock to be issued upon
conversion of a Debenture in respect of Preferred Securities are to be
registered in a name other than that of the Holder of such Preferred
Security, then the Person in whose name such shares of Company Common
Stock are to be registered must deliver to the Conversion Agent a
certificate satisfactory to the Company and signed by such Person, as to
compliance with the restrictions on transfer applicable to such
Preferred Security. Neither the Trustee nor any Conversion Agent or
Registrar shall be required to register in a name other than that of the
Holder of such Preferred Securities shares of Company Common Stock
issued upon conversion of any such Debenture in respect thereof not so
accompanied by a properly completed certificate.
SECTION 13.10 Trustee Not Responsible for Determining Conversion
Price or Adjustments.
Neither the Trustee nor any Conversion Agent shall at any time be
under any duty or responsibility to any Holder of any Debenture or to any
holder of a Preferred Security to determine whether any facts exist which may
require any adjustment of the Conversion Price, 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 nor any Conversion Agent shall be
accountable with respect to the validity or value (or the kind of account) of
any shares of Company Common Stock or of any securities or property, which may
at any time be issued or delivered upon the conversion of any Debenture; and
neither the Trustee nor any Conversion Agent makes any representation with
respect thereto. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to make any cash payment or to
issue, transfer or deliver any shares of Company Common Stock or stock
certificates or other securities or property upon the surrender of any
Debenture for the purpose of conversion, or, except as expressly herein
provided, to comply with any of the covenants of the Company contained in
Article 10 or this Article 13.
* * * *
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This instrument may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
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 day and year first above written.
NEWFIELD EXPLORATION COMPANY
By:
---------------------------------
Name:
-------------------------------
Title:
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FIRST UNION NATIONAL BANK,
as Trustee
By:
---------------------------------
Name:
-------------------------------
Title:
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-83-