Exhibit 4.1
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▇▇▇▇▇▇▇ RESOURCES CORPORATION
as Issuer,
AND
BANKERS TRUST COMPANY
as Trustee
____________________________
INDENTURE
DATED AS OF JANUARY 15, 1997
____________________________
US$150,000,000
____% SENIOR NOTES DUE 2007
____________________________
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CROSS-REFERENCE TABLE
TIA SECTION INDENTURE SECTION
310(a)(1)............................................ 7.10
(a)(2)............................................ 7.10
(a)(3)............................................ N.A.
(a)(4)............................................ N.A.
(b)............................................... 7.08; 7.10
(c)............................................... N.A.
311(a)............................................... 7.11
(b)............................................... 7.11
(c)............................................... N.A.
312(a)............................................... 2.06; 2.13
(b)............................................... 10.03
(c)............................................... 10.03
313(a)............................................... 7.06
(b)............................................... 7.06
(c)............................................... 7.06
(d)............................................... 7.06
314(a)............................................... 4.03
(b)............................................... N.A.
(c)(1)............................................ 10.04
(c)(2)............................................ 10.04
(c)(3)............................................ N.A.
(d)............................................... N.A.
(e)............................................... 10.05
(f)............................................... N.A.
315(a)............................................... 7.01(2)
(b)............................................... 7.05
(c)............................................... 7.01(1)
(d)............................................... 7.01(3)
(e)............................................... 6.11
316(a)(last sentence)................................ 2.09
(a)(1)(A)......................................... 6.05
(a)(1)(B)......................................... 6.04
(a)(2)............................................ N.A.
(b)............................................... 6.07
(c)............................................... N.A.
317(a)(1)............................................ 6.08
(a)(2)............................................ 6.09
(b)............................................... 2.04
318(a)............................................... 10.01
_________________________
N.A. means Not Applicable
NOTE: This Cross-Reference table shall not, for any purpose, be deemed part of
this Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE I
Section 1.01 Definitions......................................... 1
Section 1.02 Other Definitions................................... 8
Section 1.03 Incorporation by Reference of Trust Indenture Act... 9
Section 1.04 Rules of Construction............................... 9
ARTICLE II
THE SECURITIES
Section 2.01 Forms of Securities Generally....................... 9
Section 2.02 Title and Terms..................................... 10
Section 2.03 Denominations....................................... 11
Section 2.04 Execution, Authentication, Delivery and Dating...... 11
Section 2.05 Temporary Securities................................ 12
Section 2.06 Registration, Registration of Transfer and Exchange. 12
Section 2.07 Book-Entry Provisions for Global Certificates....... 14
Section 2.08 Mutilated, Destroyed, Lost and Stolen Securities.... 15
Section 2.09 Payment of Interest; Interest Rights Preserved...... 15
Section 2.10 Paying Agent........................................ 17
Section 2.11 Paying Agent to Hold Money in Trust................. 17
Section 2.12 Persons Deemed Owners............................... 17
Section 2.13 Holder Lists........................................ 17
Section 2.14 Outstanding Securities.............................. 18
Section 2.15 Treasury Securities................................. 18
Section 2.16 Cancellation........................................ 18
Section 2.17 Computation of Interest............................. 19
ARTICLE III
REDEMPTION
Section 3.01 Notices to Trustee.................................. 19
Section 3.02 Selection of Securities to be Redeemed.............. 19
Section 3.03 Notices to Holders.................................. 19
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................................................
Section 3.04 Effect of Notice of Redemption..................... 20
Section 3.05 Deposit of Redemption Price........................ 20
Section 3.06 Securities Redeemed in Part........................ 21
Section 3.07 Optional Redemption................................ 21
ARTICLE IV
COVENANTS
Section 4.01 Payment of Securities.............................. 22
Section 4.02 Maintenance of Office or Agency.................... 22
Section 4.03 SEC Reports; Financial Statements.................. 23
Section 4.04 Compliance Certificate............................. 23
Section 4.05 Corporate Existence................................ 24
Section 4.06 Maintenance of Properties.......................... 24
Section 4.07 Payment of Taxes and Other Claims.................. 25
Section 4.08 Limitation on Sale/Leaseback Transactions.......... 25
Section 4.09 Limitation on Liens................................ 26
ARTICLE V
SUCCESSORS
Section 5.01 Limitations on Mergers and Consolidations.......... 28
Section 5.02 Successor Corporation Substituted.................. 28
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.................................. 29
Section 6.02 Acceleration....................................... 30
Section 6.03 Other Remedies..................................... 31
Section 6.04 Waiver of Past Defaults............................ 31
Section 6.05 Control by Majority................................ 31
Section 6.06 Limitations on Suits............................... 31
Section 6.07 Rights of Holders to Receive Payment............... 32
Section 6.08 Collection Suit by Trustee......................... 32
Section 6.09 Trustee May File Proofs of Claim................... 32
Section 6.10 Priorities......................................... 33
Section 6.11 Undertaking for Costs.............................. 33
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ARTICLE VII
TRUSTEE
Section 7.01 Duties of Trustee................................... 34
Section 7.02 Rights of Trustee................................... 35
Section 7.03 Individual Rights of Trustee........................ 36
Section 7.04 Trustee's Disclaimer................................ 36
Section 7.05 Notice of Defaults.................................. 36
Section 7.06 Reports by Trustee to Holders....................... 36
Section 7.07 Compensation and Indemnity.......................... 36
Section 7.08 Replacement of Trustee.............................. 37
Section 7.09 Successor Trustee by Merger, etc.................... 38
Section 7.10 Eligibility; Disqualification....................... 38
Section 7.11 Preferential Collection of Claims Against Company... 39
ARTICLE VIII
DISCHARGE OF INDENTURE
Section 8.01 Termination of Company's Obligations................ 39
Section 8.02 Application of Trust Money.......................... 41
Section 8.03 Repayment to Company................................ 41
Section 8.04 Reinstatement....................................... 42
ARTICLE IX
AMENDMENTS
Section 9.01 Without Consent of Holders.......................... 42
Section 9.02 With Consent of Holders............................. 43
Section 9.03 Compliance with Trust Indenture Act................. 44
Section 9.04 Revocation and Effect of Consents................... 44
Section 9.05 Notation on or Exchange of Securities............... 45
Section 9.06 Trustee to Sign Amendments, etc..................... 45
ARTICLE X
MISCELLANEOUS
Section 10.01 Trust Indenture Act Controls........................ 45
Section 10.02 Notices............................................. 45
Section 10.03 Communication by Holders with Other Holders......... 46
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Section 10.04 Certificate and Opinion as to Conditions Precedent.. 47
Section 10.05 Statements Required in Certificate or Opinion....... 47
Section 10.06 Rules by Trustee and Agents......................... 47
Section 10.07 Legal Holidays...................................... 47
Section 10.08 No Recourse Against Others.......................... 48
Section 10.09 Governing Law....................................... 48
Section 10.10 No Adverse Interpretation of Other Agreements....... 48
Section 10.11 Successors.......................................... 48
Section 10.12 Severability........................................ 48
Section 10.13 Counterpart Originals............................... 48
Section 10.14 Trustee as Paying Agent and Registrar............... 48
Section 10.15 Table of Contents, Headings, etc.................... 49
Exhibit A: Form of Security
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INDENTURE dated as of January 15, 1997 among ▇▇▇▇▇▇▇ Resources Corporation,
a Delaware corporation (the "Company"), and Bankers Trust Company of New York, a
New York banking corporation, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties and for
the equal and ratable benefit of the Holders of the Company's ____% Senior Notes
due 2007 (the "Securities"):
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
"Affiliate" of any specified Person means any Person directly or indirectly
controlling or controlled by, or under direct or indirect common control with,
such specified Person. For purposes of this definition, control of a Person
shall mean 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. The Trustee may request and may conclusively rely upon
an Officers' Certificate to determine whether any Person is an Affiliate of any
specified Person.
"Agent" means any Registrar or Paying Agent.
"Attributable Indebtedness", when used with respect to any Sale/Leaseback
Transaction, means, as at the time of determination, the present value
(discounted at a rate equivalent to the Company's then current weighted average
cost of funds for borrowed money as at the time of determination, compounded on
a semiannual basis) of the total obligations of the lessee for rental payments
during the remaining term of the lease included in such Sale/ Leaseback
Transaction (including any period for which such lease can be extended).
"Bankruptcy Law" means title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee of the Board of Directors of the Company.
"Business Day" means any day other than a Legal Holiday.
"Capital Stock" of any Person means and includes any and all shares, rights
to purchase, warrants or options (whether or not currently exercisable),
participation or other equivalents of or interests in (however designated) the
equity (which includes, but is not limited to, common stock, preferred stock and
partnership and joint venture interests) of such Person (excluding any debt
securities that are convertible into, or exchangeable for, such equity).
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"Capitalized Lease Obligation" of any Person means any obligation of such
Person to pay rent or other amounts under a lease of property, real or personal,
that is required to be capitalized for financial reporting purposes in
accordance with GAAP; and the amount of such obligation shall be the capitalized
amount thereof determined in accordance with GAAP.
"Common Equity" of any Person means and includes all Capital Stock of such
Person that is generally entitled to (i) vote in the election of directors of
such Person, or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request" and "Company Order" means, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board,
its President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Controller, an Assistant Controller, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means, for the Company and its
Restricted subsidiaries on a consolidated basis determined in accordance with
generally accepted accounting principles, the aggregate amounts of assets (less
depreciation and valuation reserves and other reserves and items deductible from
gross book value of specific asset accounts under generally accepted accounting
principles) that would be included on a balance sheet after deducting therefrom
(a) all liability items except deferred income taxes, commercial paper, short
term bank indebtedness, Funded Indebtedness, other long-term liabilities and
shareholders' equity and (b) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles.
"Corporate Trust Office of the Trustee" means the address of the Trustee
specified in Section 10.02 or such other address as the Trustee may give notice
thereof to the Company.
"Currency Hedge Obligations" means, at any time as to any Person, the
obligations of such Person at such time that were incurred in the ordinary
course of business pursuant to any foreign currency exchange agreement, option
or futures contract or other similar agreement or arrangement designed to
protect against or manage such Person's or any of its Subsidiaries' exposure to
fluctuations in foreign currency exchange rates.
"Default" means any event, act or condition that is, or after notice or the
passage of time or both would be, an Event of Default.
2
"Depository" means, with respect to the Securities issued in the form of a
global Security, the Person designated as Depository by the Company pursuant to
Section 2.01 until a successor Depository shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Depository" shall mean
or include each Person who is then a Depository hereunder.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
any successor statute.
"Funded Indebtedness" means all Indebtedness (including Indebtedness
incurred under any revolving credit, letter of credit or working capital
facility) that matures by its terms, or that is renewable at the option of any
obligor thereon to a date, more than one year after the date on which such
Indebtedness is originally incurred.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession of the United States, as in effect on the Issue Date.
"Hedging Obligations" of any Person means the obligations of such Person
pursuant to any Currency Hedge Obligations, Interest Rate Hedging Agreements or
Oil and Gas Hedging Contracts.
"Holder" means a Person in whose name a Security is registered.
"Indebtedness" of any Person at any date means, without duplication, (i)
all indebtedness of such Person for borrowed money (whether or not the recourse
of the lender is to the whole of the assets of such Person or only to a portion
thereof), (ii) all obligations of such Person evidenced by bonds, debentures,
notes or other similar instruments, (iii) all obligations of such Person in
respect of letters of credit or other similar instruments (or reimbursement
obligations with respect thereto), other than standby letters of credit incurred
by such Person in the ordinary course of business, (iv) all obligations of such
Person to pay the deferred and unpaid purchase price of property or services,
except trade payables and accrued expenses incurred in the ordinary course of
business, (v) all Capitalized Lease Obligations of such Person, (vi) all
Indebtedness of others secured by a Lien on any asset of such Person, whether or
not such Indebtedness is assumed by such Person, (vii) all Indebtedness of
others guaranteed by such Person to the extent of such guarantee and (viii) all
Hedging Obligations of such Person.
"Indenture" means this Indenture as amended from time to time.
"Independent Investment Banker" means an independent investment banking
institution of national standing appointed by the Company for purposes of
calculating any Make-Whole Premium, provided, that if the Company fails to make
such appointment at least 45 Business Days prior to the Redemption Date for any
Security to be redeemed, or if the institution so appointed is unwilling or
3
unable to make such calculation, such calculation will be made by ▇▇▇▇▇▇▇, ▇▇▇▇▇
& Co. or, if such firm is unwilling or unable to make such calculation, by an
independent investment banking institution of national standing appointed by the
Trustee.
"Interest Payment Date" shall have the meaning assigned to such term in the
Securities.
"Interest Rate Hedging Agreements" means, with respect to any Person, the
obligations of such Person under (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements and (ii) other
agreements or arrangements designed to protect such Person or any of its
Subsidiaries against fluctuations in interest rates.
"Issue Date" means the date on which the Securities are originally issued
under this Indenture.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset
(including, without limitation, any production payment, advance payment or
similar arrangement with respect to minerals in place), whether or not filed,
recorded or otherwise perfected under applicable law. For the purposes of this
Indenture, the Company or any Restricted Subsidiary shall be deemed to own
subject to a Lien any asset which it has acquired or holds subject to the
interest of a vendor or lessor under any conditional sale agreement, Capitalized
Lease Obligation (other than any Capitalized Lease Obligation relating to any
building, structure, equipment or other property used or to be used in the
ordinary course of business of the Company and the Restricted Subsidiaries) or
other title retention agreement relating to such asset.
"Make-Whole Premium" means, with respect to any Security (or portion
thereof) to be redeemed, an amount equal to the excess, if any, of:
(i) the sum of the present values, calculated as of the Redemption
Date, of:
(A) each interest payment that, but for such redemption,
would have been payable on the Security (or portion thereof) being
redeemed on each Interest Payment Date occurring after the Redemption
Date (excluding any accrued interest for the period prior to the
Redemption Date); and
(B) the principal amount that, but for such redemption,
would have been payable at the final maturity of the Security (or
portion thereof) being redeemed;
over
(ii) the principal amount of the Security (or portion thereof)
being redeemed.
4
The present values of interest and principal payments referred to in clause (i)
above will be determined in accordance with generally accepted principles of
financial analysis. Such present values will be calculated by discounting the
amount of each payment of interest or principal from the date that each such
payment would have been payable, but for the redemption, to the Redemption Date
at a discount rate equal to the Treasury Yield plus ___ basis points. The Make-
Whole Premium shall be calculated by an Independent Investment Banker.
For purposes of determining the Make-Whole Premium, "Treasury Yield" means
a rate of interest per annum equal to the weekly average yield to maturity of
United States Treasury Notes that have a constant maturity that corresponds to
the remaining term to maturity of the Securities, calculated to the nearest 1/12
of a year (the "Remaining Term"). The Treasury Yield will be determined as of
the third business day immediately preceding the applicable Redemption Date.
The weekly average yields of United States Treasury Notes will be determined by
reference to the most recent statistical release published by the Federal
Reserve Bank of New York and designated "H.15(519) Selected Interest Rates" or
any successor release (the "H.15 Statistical Release"). If the H.15 Statistical
Release sets forth a weekly average yield for United States Treasury Notes
having a constant maturity that is the same as the Remaining Term, then the
Treasury Yield will be equal to such weekly average yield. In all other cases,
the Treasury Yield will be calculated by interpolation, on a straight-line
basis, between the weekly average yields on the United States Treasury Notes
that have a constant maturity closest to and greater than the Remaining Term and
the United States Treasury Notes that have a constant maturity closest to and
less than the Remaining Term (in each case as set forth in the H.15 Statistical
Release). Any weekly average yields so calculated by interpolation will be
rounded to the nearest 1/100 of 1%, with any figure of 1/200% or above being
rounded upward. If weekly average yields for United States Treasury Notes are
not available in the H.15 Statistical Release or otherwise, then the Treasury
Yield will be calculated by interpolation of comparable rates selected by the
Independent Investment Banker.
"Net Proceeds" means, with respect to any Sale/Leaseback Transaction
entered into by the Company or any Restricted Subsidiary, the aggregate net
proceeds received by the Company or such Restricted Subsidiary from such
Sale/Leaseback Transaction after payment of expenses, taxes, commissions and
similar amounts incurred in connection therewith, whether such proceeds are in
cash or in property (valued at the fair market value thereof at the time of
receipt, as determined by the Board of Directors).
"Officer" means the President, the Treasurer, any Assistant Treasurer,
Controller, Secretary, Assistant Secretary or any Vice President or Assistant
Vice President of a Person.
"Officers' Certificate" means a certificate signed by two Officers of a
Person, one of whom must be the Person's chief executive officer, chief
financial officer or chief accounting officer.
"Oil and Gas Hedging Contracts" means any oil and gas purchase or hedging
agreement, and other agreement or arrangement, in each case, that is designed to
provide protection against oil and gas price fluctuations.
5
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company or the Trustee.
"Ordinary Course Lien" means:
(a) Liens for taxes, assessments or governmental charges or levies on
the property of the Company or any Restricted Subsidiary if the same shall not
at the time be delinquent or thereafter can be paid without penalty, or are
being contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on the books of the
Company;
(b) Liens imposed by law, such as carriers', warehousemen's, landlords'
and mechanics' liens and other similar liens arising in the ordinary course of
business which secure obligations not more than 60 days past due or which are
being contested in good faith by appropriate proceedings and for which adequate
reserves in accordance with GAAP shall have been set aside on the books of the
Company;
(c) Liens arising out of pledges or deposits under worker's compensation
laws, unemployment insurance, old age pensions, or other social security or
retirement benefits, or similar legislation;
(d) Utility easements, building restrictions and such other encumbrances
or charges against real property as are of a nature generally existing with
respect to properties of a similar character and which do not in any material
way affect the marketability of the same or interfere with the use thereof in
the ordinary course of business of the Company and the Restricted Subsidiaries;
(e) Liens arising under operating agreements or similar agreements in
respect of obligations which are not yet due or which are being contested in
good faith by appropriate proceedings;
(f) Liens reserved in oil, gas and/or mineral leases, production sharing
contracts and petroleum concession agreements and licenses for bonus or rental
payments and for compliance with the terms of such leases, contracts, agreements
and licenses;
(g) Liens pursuant to partnership agreements, oil, gas and/or mineral
leases, production sharing contracts, petroleum concession agreements and
licenses, farm-out agreements, division orders, contracts for the sale,
purchase, exchange, processing or transportation of oil, gas and/or other
hydrocarbons, unitization and pooling declarations and agreements, operating
agreements, development agreements, area of mutual interest agreements, and
other agreements which are customary in the oil, gas and other mineral
exploration, development and production business and in the business of
processing of gas and gas condensate production for the extraction of products
therefrom;
6
(h) Liens on personal property (excluding the Capital Stock of any
Restricted Subsidiary) securing Indebtedness of the Company or any Restricted
Subsidiary other than Funded Indebtedness; and
(i) Liens imposed by law or order as a result of any proceeding before
any court or regulatory body that is being contested in good faith, and Liens
which secure a judgment or other court-ordered award or settlement as to which
the Company has not exhausted its appellate rights.
"Pari Passu Indebtedness" means any Indebtedness of the Company, whether
outstanding on the Issue Date or thereafter created, incurred or assumed,
unless, in the case of any particular Indebtedness, the instrument creating or
evidencing the same or pursuant to which the same is outstanding expressly
provides that such Indebtedness shall be subordinated in right of payment to the
Securities.
"Person" means any individual, corporation, partnership, joint venture,
incorporated or unincorporated association, joint-stock company, trust,
unincorporated organization or government or other agency or political
subdivision thereof or other entity of any kind.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.08 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security, shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" shall have the meaning assigned to such term in the
Securities.
"Regular Record Date" for the interest payable on any Interest Payment Date
on the Securities of any series means the date specified for that purpose as
contemplated by Section 2.02, or, if not so specified, the last day of the
calendar month preceding such Interest Payment Date if such Interest Payment
Date is the first date of a calendar month, whether or not such day shall be a
Business Day.
"Restricted Subsidiary" means each of the existing Subsidiaries of the
Company and any Subsidiary of the Company that is a successor corporation of any
of the existing Subsidiaries, except for BGP Inc. The status of any Subsidiary
of the Company as a Restricted Subsidiary shall continue, so long as it is a
Subsidiary of the Company.
"Sale/Leaseback Transaction" means any arrangement with any Person
providing for the leasing by the Company or any Restricted Subsidiary, for a
period of more than three years, of any
7
real or tangible personal property, which property has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such Person in
contemplation of such leasing.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Securities described above issued under this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and any
successor statute.
"Special Record Date" for the payment of any Defaulted Interest on the
Securities of any series means a date fixed by the Trustee pursuant to Section
2.09.
"Subsidiary" of any Person means any corporation of which at least a
majority of the aggregate voting power of all classes of the Common Equity is
owned by such Person directly or through one or more other Subsidiaries of such
Person, and any entity other than a corporation in which such Person, directly
or indirectly, owns at least a majority of the Common Equity of such entity.
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C. (S)(S)
77aaa-77bbbb), as in effect on the Issue Date.
"Trustee" means the party named as such above until a successor replaces it
in accordance with the applicable provisions of this Indenture and thereafter
means the successor serving hereunder.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"U.S. Government Obligations" means direct obligations of the United States
of America, obligations on which the payment of principal and interest is fully
guaranteed by the United States of America or obligations or guarantees for the
payment of which the full faith and credit of the United States of America is
pledged.
Section 1.02 Other Definitions.
DEFINED
IN
TERM SECTION
---- -------
"Agent Members"...................... 2.07
"Defaulted Interest"................. 2.09
"Custodian".......................... 6.01
"Event of Default"................... 6.01
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"Global Certificate"................. 2.01
"Legal Holiday"...................... 10.07
"Paying Agent"....................... 2.10
"Physical Certificates".............. 2.01
"Security Register".................. 2.06
"Security Registrar" or "Registrar".. 2.06
"Stated Maturity".................... 2.02
"Successor".......................... 5.01
Section 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
All terms used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or defined by SEC rule under the TIA have
the meanings so assigned to them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the singular; and
(5) provisions apply to successive events and transactions.
ARTICLE II
THE SECURITIES
Section 2.01 Forms of Securities Generally.
The definitive Securities shall be printed, lithographed or engraved
on steel-engraved borders or may be produced in any other manner, all as
determined by the Officers executing such Securities, as evidenced by their
execution of such Securities.
9
The Securities (including the Trustee's certificate of authentication)
shall be issued initially in the form of one or more global Securities
substantially in the form set forth on Exhibit A hereof (each being called a
"Global Certificate") deposited with The Depository Trust Company (the
"Depository"), and registered in the name of its nominee (such nominee being
referred to herein as the "Global Certificate Holder"), or will remain in the
custody of the Trustee pursuant to a FAST Balance Certificate Agreement or
similar agreement between the Depository and the Trustee, and shall be duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. Subject to the limitation set forth in Section 2.02, the principal
amount of the Global Certificates may be increased or decreased from time to
time by adjustments made on the records of the Trustee as custodian for the
Depository, as hereinafter provided.
The Securities exchanged for beneficial interests in a Global
Certificate as described in Section 2.07 shall be issued in the form of
permanent certificated Securities in registered form in substantially the form
set forth in Exhibit A hereto ("Physical Certificates").
The Securities, and the Trustee's certificate of authentication shall
be in substantially the form set forth in Exhibit A hereto, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, CUSIP or
other numbers or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the Officers
executing such Securities as evidenced by their execution of the Securities.
Any portion of the text of any Security may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Security. In addition
to the requirements of Exhibit A, the Securities may also have set forth on the
reverse side thereof a form of assignment.
Section 2.02 Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture for original issue is limited
to $150,000,000, and the amount of Securities outstanding at any one time may
not exceed $150,000,000 except as provided in Section 2.08 hereof.
The Securities shall be known and designated as the "___% Senior Notes
due 2007" of the Company. Their Stated Maturity shall be January 15, 2007, and
they shall bear interest at the rate of _____% per annum from __________, 1997,
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, payable semiannually on January 15 and July 15 in each year,
commencing July 15, 1997, and at said Stated Maturity, until the principal
thereof is paid or duly provided for.
The principal of (and premium, if any, on) and interest on the
Securities shall be payable at the office or agency of the Company maintained
for such purpose in The City of New York, or at such other office or agency of
the Company as may be maintained for such purpose; provided, however, that, at
the option of the Company, interest will be paid on Physical Securities by check
10
mailed to addresses of the Persons entitled thereto as such addresses shall
appear on the Security Register.
The Securities shall be redeemable as provided in Article 3 hereof.
The Securities shall be subject to defeasance at the option of the
Company as provided in Article 8 hereof.
Section 2.03 Denominations.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
Section 2.04 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or a Vice President of the Company, under
its corporate seal affixed thereto or reproduced thereon and attested by its
Secretary or an Assistant Secretary of the Company. The signature of any of
these Officers on the Securities may be manual or facsimile signatures of such
Officer and may be imprinted or otherwise reproduced on the Securities.
Securities 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 Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities as
provided in this Indenture.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for in Exhibit
A hereto, duly executed by the Trustee by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
In case the Company, pursuant to and in compliance with Section 5.01
hereof, shall be consolidated or merged with or into any other Person or shall
convey, transfer, lease or otherwise
11
dispose of its properties or assets substantially as an entirety to any Person,
and the successor Person resulting from such consolidation, or surviving such
merger, or into which the Company shall have been merged, or the Person which
shall have received a conveyance, transfer, lease or other disposition as
aforesaid, shall have executed an indenture supplemental hereto with the Trustee
pursuant to Section 5.01 hereof, any of the Securities authenticated or
delivered prior to such consolidation, merger, conveyance, transfer, lease or
other disposition may, from time to time, at the request of the successor
Person, be exchanged for other Securities executed in the name of the successor
Person with such changes in phraseology and form as may be appropriate, but
otherwise in substance of like tenor as the Securities surrendered for such
exchange and of like principal amount; and the Trustee, upon Company Request of
the successor Person, shall authenticate and deliver Securities as specified in
such request for the purpose of such exchange. If Securities shall at any time
be authenticated and delivered in any new name of a successor Person pursuant to
this Section in exchange or substitution for or upon registration of transfer of
any Securities, such successor Person, at the option of the Holders but without
expense to them, shall provide for the exchange of all Securities at the time
outstanding for Securities authenticated and delivered in such new name.
Section 2.05 Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the Officers executing such Securities may determine, as conclusively evidenced
by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 4.02
hereof, without charge to the Holder. Upon surrender for cancellation of any
one or more temporary Securities, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Section 2.06 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept a register (the register maintained
in such office and in any other office or agency designated pursuant to Section
4.02 hereof being herein sometimes referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and of transfers of Securities.
The Security Register shall be in written form or any other form capable of
being converted into
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written form within a reasonable time. At all reasonable times and during normal
business hours, the Security Register shall be open to inspection by the
Trustee. The Trustee is hereby initially appointed as security registrar (the
"Security Registrar" or the "Registrar") for the purpose of registering
Securities and transfers of Securities as herein provided.
Subject to the provisions of this Section and Section 2.07, upon
surrender for registration of transfer of any Security at the office or agency
of the Company designated pursuant to Section 4.02 hereof, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of any
authorized denomination or denominations of a like aggregate principal amount.
Furthermore, any Holder of the Global Certificate shall, by acceptance
of such Global Certificate, agree that transfers of beneficial interest in such
Global Certificate may be effected only through a book-entry system maintained
by the Holder of such Global Certificate (or its agent), and that ownership of a
beneficial interest in the Security shall be required to be reflected in a book
entry.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Security Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange or redemption of Securities, 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 registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 2.05, 2.07, 3.06 or 9.05 hereof not involving
any transfer.
Neither the Trustee, the Security Registrar nor the Company shall be
required (i) to issue, register the transfer of or exchange any Security during
a period beginning at the opening of business 15 days before the mailing of a
notice of redemption of Securities selected for redemption under Section 3.02
hereof and ending at the close of business on the day of such mailing of the
relevant notice of redemption, or (ii) to register the transfer of or exchange
any Security so selected for
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redemption in whole or in part, except the unredeemed portion of any Security
being redeemed in part.
Section 2.07 Book-Entry Provisions for Global Certificates.
Each Global Certificate shall be registered in the name of the
Depository for such Global Certificate or the nominee of such Depository and may
be delivered to the Trustee as custodian for such Depository.
Members of, or participants in, the Depository ("Agent Members") shall
have no rights under this Indenture with respect to any Global Certificate held
on their behalf by the Depository, or the Trustee as its custodian, or under
such Global Certificate, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Certificate for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by the Depository or shall impair, as
between the Depository and its Agent Members, the operation of customary
practices governing the exercise of the rights of a beneficial owner of any
Security.
Transfers of a Global Certificate shall be limited to transfers of
such Global Certificate in whole, but not in part, to the Depository, its
successors or their respective nominees. Interests of beneficial owners in a
Global Certificate may be transferred in accordance with the rules and
procedures of the Depository. Physical Certificates shall be transferred to all
beneficial owners in exchange for their beneficial interests in a Global
Certificate if, and only if, either (1) the Depository notifies the Company that
it is unwilling or unable to continue as Depository for the Global Certificate
and a successor Depository is not appointed by the Company within 90 days of
such notice, (2) an Event of Default has occurred and is continuing and the
Security Registrar has received a request from the Depository to issue Physical
Certificates in lieu of all or a portion of the Global Certificate (in which
case the Company shall deliver Physical Certificates within 30 days of such
request) or (3) the Company determines not to have the Securities represented by
a Global Certificate.
In connection with any transfer of a portion of the beneficial
interest in a Global Certificate to beneficial owners pursuant to this Section,
the Registrar shall reflect on its books and records the date and a decrease in
the principal amount of the Global Certificate in an amount equal to the
principal amount of the beneficial interest in the Global Certificate to be
transferred, and the Company shall execute, and the Trustee upon receipt of a
Company Order for the authentication and delivery of Physical Certificates shall
authenticate and deliver, one or more Physical Certificates of like tenor and
amount.
In connection with the transfer of an entire Global Certificate to
beneficial owners pursuant to this Section, the Global Certificate shall be
deemed to be surrendered to the Trustee for cancellation, and the Company shall
execute, and the Trustee shall authenticate and deliver, to each
14
beneficial owner identified by the Depository in exchange for its beneficial
interest in the Global Certificate, an equal aggregate principal amount of
Physical Certificates of authorized denominations.
The registered holder of a Global Certificate may grant proxies and
otherwise authorize any person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
Section 2.08 Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security is surrendered to the Trustee or (ii)
the Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Security, and there is delivered to the
Company and the Trustee such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute, and upon Company Order the Trustee shall authenticate and
deliver, in exchange for any such mutilated Security or in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security 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 Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities 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 Securities.
Section 2.09 Payment of Interest; Interest Rights Preserved.
Interest on any Security 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 such Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
15
interest at the office or agency of the Company maintained for such purpose
pursuant to Section 4.02 hereof.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date shall forthwith cease to
be payable to the Holder on the Regular Record Date by virtue of having been
such Holder, and such defaulted interest and (to the extent lawful) interest on
such defaulted interest at the rate borne by the Securities (such defaulted
interest and interest thereon herein collectively called "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 Securities (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security 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 shall 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, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be given in the
manner provided for in Section 10.02 hereof, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been so given, such Defaulted
Interest shall be paid to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of business 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 Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
16
Section 2.10 Paying Agent.
The Company shall also maintain an office or agency where Securities
may be presented for payment ("Paying Agent"). The Company may appoint one or
more additional paying agents. The term "Paying Agent" includes any additional
paying agent. The Company may change any Paying Agent without notice to any
Holder. The Company shall notify the Trustee in writing of the name and address
of any Paying Agent not a party to this Indenture. If the Company fails to
appoint or maintain another entity as Paying Agent, the Trustee shall act as
such. The Company or any of its Subsidiaries may act as Paying Agent.
The Company initially appoints the Trustee to act as the Paying Agent
with respect to the Global Certificates.
Section 2.11 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent (other than the Trustee)
to agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, if any, or interest, on the Securities, and shall notify the
Trustee of any default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee. Upon payment over to the Trustee,
the Paying Agent (if other than the Company or a Subsidiary) shall have no
further liability for the money. If the Company or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as
sole Paying Agent for the Securities.
Section 2.12 Persons Deemed Owners.
Prior to the due presentment of a Security for registration of
transfer, the Company, the Security Registrar, the Trustee and any agent of the
Company, or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any, on) and (subject to Section 2.09 hereof)
interest on such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and none of the Company, the Security Registrar, the
Trustee or any agent of the Company, or the Trustee shall be affected by notice
to the contrary.
Section 2.13 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA (S)312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each Interest Payment Date and at such other times as the
Trustee may request
17
in writing, a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of the Holders of Securities and
the Company shall otherwise comply with TIA (S)312(a).
Section 2.14 Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled by it, those delivered
to it for cancellation, those reductions in the interest in a Global Certificate
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section
2.15 hereof, a Security does not cease to be outstanding because the Company, a
Subsidiary or an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.08 hereof, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under
Section 4.01 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Securities payable on that date, then on and after that date
such Securities shall be deemed to be no longer outstanding and shall cease to
accrue interest.
Section 2.15 Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities owned
by the Company, a Subsidiary or by any Affiliate of the Company shall be
considered as though not outstanding, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities that the Trustee actually knows
are so owned shall be so disregarded.
Section 2.16 Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the
18
Trustee shall be destroyed and a certificate of their destruction delivered
to the Company unless by a Company Order the Company shall direct that cancelled
Securities be returned to it.
Section 2.17 Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
ARTICLE III
REDEMPTION
Section 3.01 Notices to Trustee.
If the Company elects to redeem Securities pursuant to the redemption
provisions of Section 3.07, it shall furnish to the Trustee, at least 45 days
but not more than 60 days before a Redemption Date, an Officers' Certificate
setting forth the Section of this Indenture pursuant to which the redemption
shall occur, the Redemption Date, the principal amount of Securities to be
redeemed and the Redemption Price.
Section 3.02 Selection of Securities to be Redeemed.
If less than all of the Securities are to be redeemed, the Trustee
shall select the Securities to be redeemed by such method as the Trustee in its
sole discretion shall deem fair and appropriate. The particular Securities to
be redeemed shall be selected, unless otherwise provided herein, not less than
30 days nor more than 60 days prior to the Redemption Date by the Trustee from
the outstanding Securities not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Security selected for
partial redemption, the principal amount thereof to be redeemed. Securities and
portions of them selected shall be in amounts of $1,000 or whole multiples of
$1,000. Except as provided in the preceding sentence, provisions of this
Indenture that apply to Securities called for redemption also apply to portions
of Securities called for redemption.
Section 3.03 Notices to Holders.
(a) At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail in conformity with Section 10.02 a notice of
redemption to each Holder whose Securities are to be redeemed.
The notice shall identify the Securities to be redeemed and shall
state:
19
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the Redemption
Date, upon surrender of such Security, a new Security or Securities in principal
amount equal to the unredeemed portion will be issued;
(iv) the name and address of the Paying Agent;
(v) that Securities called for redemption must be surrendered to
the Paying Agent at the address specified in such notice to collect the
Redemption Price;
(vi) that unless the Company defaults in making the redemption
payment, interest on Securities called for redemption ceases to accrue on and
after the Redemption Date and the only remaining right of the Holders is to
receive payment of the Redemption Price upon surrender to the Paying Agent of
the Securities;
(vii) the paragraph of the Securities pursuant to which the
Securities are being redeemed; and
(viii) the aggregate principal amount of Securities being redeemed.
(b) At the Company's request, the Trustee shall give the notice
required in Section 3.03(a) in the Company's name; provided, however, that the
Company shall deliver to the Trustee, at least 45 days prior to the Redemption
Date, an Officers' Certificate requesting that the Trustee give such notice and
setting forth the information to be stated in such notice as provided in Section
3.03(a).
Section 3.04 Effect of Notice of Redemption.
Once notice of redemption is mailed pursuant to Section 3.03,
Securities called for redemption become due and payable on the Redemption Date
at the Redemption Price. Upon surrender to the Paying Agent, such Securities
shall be paid out at the Redemption Price.
Section 3.05 Deposit of Redemption Price.
One Business Day prior to the Redemption Date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
Redemption Price of all Securities to be redeemed on that date. The Trustee or
the Paying Agent shall return to the Company any money not required for that
purpose.
20
If the Company complies with the preceding paragraph, interest on the
Securities or portions thereof to be redeemed (whether or not such Securities
are presented for payment) will cease to accrue on the applicable Redemption
Date. If any Security called for redemption shall not be so paid upon surrender
because of the failure of the Company to comply with the preceding paragraph,
then interest will be paid on the unpaid principal and premium, if any, from the
Redemption Date until such principal and premium are paid and, to the extent
lawful, on any interest not paid on such unpaid principal, in each case at the
rate provided in the Securities and in Section 4.01.
Section 3.06 Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Company
shall issue and the Trustee shall authenticate for the Holder, at the expense of
the Company, a new Security equal in principal amount to the unredeemed portion
of the Security surrendered.
Section 3.07 Optional Redemption.
The Securities may be redeemed at any time, at the option of the
Company, in whole or from time to time in part, at the Redemption Price
specified in the Securities.
Any redemption pursuant to this Section 3.07 shall be made, to the
extent applicable, pursuant to the provisions of Sections 3.01 through 3.06.
ARTICLE IV
COVENANTS
Section 4.01 Payment of Securities.
The Company shall pay the principal of, and premium, if any, and
interest on the Securities on the dates and in the manner provided in the
Securities. Principal, premium and interest shall be considered paid on the
date due if the Paying Agent, other than the Company or a Subsidiary of the
Company, holds on that date money deposited by the Company designated for and
sufficient to pay all principal, premium and interest then due.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal, and premium, if
any, at a rate equal to the then applicable interest rate on the Securities to
the extent lawful; and it shall pay interest (including post-petition interest
in any proceeding under any Bankruptcy Law) on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
21
Section 4.02 Maintenance of Office or Agency.
The Company will maintain, in the Borough of Manhattan, The City of
New York, an office or agency (which may be an office of the Trustee, the
Registrar or the Paying Agent) where Securities may be presented for
registration of transfer or exchange and where Securities may be presented for
payment. Unless otherwise designated by the Company by written notice to the
Trustee, such office or agency shall be the Corporate Trust Office of the
Trustee. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations
may be made at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all 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
Borough of Manhattan, The City of New York for such purposes. The Company will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency. The
Company hereby designates the Corporate Trust Office of the Trustee as one such
office or agency of the Company in accordance with Section 2.02.
Section 4.03 SEC Reports; Financial Statements.
(a) The Company shall file with the Trustee, within 15 days after it
files the same with the SEC, copies of the annual reports and the information,
documents and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) that the Company is required
to file with the SEC pursuant to Section 13 or 15 (d) of the Exchange Act. If
the Company is not subject to the requirements of such Section 13 or 15(d), the
Company shall file with the Trustee, within 15 days after it would have been
required to file the same with the SEC, financial statements, including any
notes thereto (and with respect to annual reports, an auditors' report by a firm
of established national reputation), and a "Management's Discussion and Analysis
of Financial Condition and Results of Operations," both comparable to that which
the Company would have been required to include in such annual reports,
information, documents or other reports if the Company had been subject to the
requirements of such Section 13 or 15 (d). The Company shall also comply with
the provisions of TIA (S) 314 (a).
(b) If the Company is required to furnish annual or quarterly reports
to its stockholders pursuant to the Exchange Act, the Company shall cause any
annual report furnished to its stockholders generally and any quarterly or other
financial reports furnished by it to its stockholders generally to be filed with
the Trustee and mailed to the Holders at their addresses appearing in the
Security Register. If the Company is not required to furnish annual or
quarterly reports to its stockholders pursuant to the Exchange Act, the Company
shall cause its financial statements referred to in Section 4.03 (a), including
any notes thereto (and with respect to annual reports, an auditors'
22
report by a firm of established national reputation), and a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" to be
so mailed to the Holders within 90 days after the end of each of the Company's
fiscal years and within 60 days after the end of each of the Company's first
three fiscal quarters.
(c) The Company shall provide the Trustee with a sufficient number of
copies of all reports and other documents and information that the Trustee may
be required to deliver to Holders under this Section.
Section 4.04 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year of the Company, an Officers' Certificate stating
that a review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers of the Company with a view to determining whether the Company has kept,
observed, performed and fulfilled its obligations under this Indenture, and
further stating, as to each such Officer signing such certificate, that to the
best of his knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof,
without regard to any grace period or requirement of notice required by this
Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which such Officer may have knowledge
and what action the Company, is taking or proposes to take with respect thereto)
and that to the best of his knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of, or
premium, if any, or interest, if any, on the Securities are prohibited or, if
such event has occurred, a description of the event and what action the Company
is taking or proposes to take with respect thereto.
(b) So long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03 shall be accompanied by a written
statement of the Company's independent public accountants (who shall be a firm
of established national reputation) that in making the examination necessary for
certification of such financial statements nothing has come to their attention
that would lead them to believe that the Company has violated any provisions of
Articles 4 or 5 of this Indenture (to the extent such provisions relate to
accounting matters) or, if any such violation has occurred, specifying the
nature and period of existence thereof, it being understood that such
accountants shall not be liable directly or indirectly to any Person for any
failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Securities are
outstanding, deliver to the Trustee, forthwith upon any Officer of the Company
becoming aware of any Default or Event of Default under this Indenture, an
Officers' Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto.
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Section 4.05 Corporate Existence.
The Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and the
corporate, partnership and other existence of each of its Subsidiaries and all
rights (charter and statutory) and franchises of the Company and its
Subsidiaries, provided that the Company shall not be required to preserve the
corporate existence of any Subsidiary of the Company or any such right or
franchise if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
the Restricted Subsidiaries and that the loss thereof would not have a material
adverse effect on the business, prospects, assets or financial condition of the
Company and its Subsidiaries taken as a whole and would not have any material
adverse effect on the payment and performance of the obligations of the Company
under the Securities and this Indenture.
Section 4.06 Maintenance of Properties.
The Company shall cause all properties owned by the Company or any of
its Subsidiaries or used or held for use in the conduct of its business or the
business of any such Subsidiary to be maintained and kept in good condition,
repair and working order (reasonable wear and tear excepted) and supplied with
all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided that nothing in this Section shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any such Subsidiary and not disadvantageous in
any material respect to the Holders.
Section 4.07 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, (i) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of its
Subsidiaries or upon the income, profits or property of the Company or any of
its Subsidiaries, and (ii) 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 of its Subsidiaries; provided 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 4.08 Limitation on Sale/Leaseback Transactions.
The Company shall not, and shall not permit any Restricted Subsidiary
to, enter into any Sale/Leaseback Transaction with any Person (other than the
Company or a Restricted Subsidiary) unless:
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(a) the Company or such Restricted Subsidiary would be entitled to
incur Indebtedness, in a principal amount equal to the Attributable Indebtedness
with respect to such Sale/Leaseback Transaction, secured by a Lien on the
property subject to such Sale/Leaseback Transaction pursuant to Section 4.09
without equally and ratably securing the Securities pursuant to such Section;
(b) after the Issue Date and within a period commencing six months
prior to the consummation of such Sale/Leaseback Transaction and ending six
months after the consummation thereof, the Company or such Restricted Subsidiary
shall have expended for property used or to be used in the ordinary course of
business of the Company and the Restricted Subsidiaries (including amounts
expended for the exploration, drilling or development thereof, and for
additions, alterations, repairs and improvements thereto) an amount equal to all
or a portion of the Net Proceeds of such Sale/Leaseback Transaction and the
Company shall have elected to designate such amount as a credit against such
Sale/Leaseback Transaction (with any such amount not being so designated to be
applied as set forth in clause (c) below); or
(c) the Company, during the 12-month period after the effective date
of such Sale/Leaseback Transaction, shall have applied to the voluntary
defeasance or retirement of Securities or any Pari Passu Indebtedness an amount
equal to the greater of the Net Proceeds of the sale or transfer of the property
leased in such Sale/Leaseback Transaction and the fair value, as determined by
the Board of Directors, of such property at the time of entering into such
Sale/Leaseback Transaction (in either case adjusted to reflect the remaining
term of the lease and any amount expended by the Company as set forth in clause
(b) above), less an amount equal to the principal amount of Securities and Pari
Passu Indebtedness voluntarily defeased or retired by the Company within such
12-month period and not designated as a credit against any other Sale/Leaseback
Transaction entered into by the Company or any Restricted Subsidiary during such
period.
Section 4.09 Limitation on Liens.
No provision of this Indenture or the Securities shall in any way
restrict or prevent the Company or any Restricted Subsidiary from issuing,
assuming, guaranteeing or otherwise incurring any Indebtedness; provided,
however, that the Company shall not, and shall not permit any Restricted
Subsidiary to, issue, assume or guarantee any Indebtedness for borrowed money
secured by any Lien on any property or asset now owned or hereafter acquired by
the Company or such Restricted Subsidiary without making effective provision
whereby any and all Securities then or thereafter outstanding will be secured by
a Lien equally and ratably with any and all other obligations thereby secured
for so long as any such obligations shall be so secured. Notwithstanding the
foregoing, the Company or any Restricted Subsidiary may, without so securing the
Securities, issue, assume or guarantee Indebtedness secured by the following
Liens:
(a) Liens existing on the Issue Date or provided for under the terms
of agreements existing on the Issue Date (including, without limitation, the
Lien provided for pursuant to Section 7.07);
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(b) Liens on property securing (i) all or any portion of the cost of
exploration, drilling or development of such property, (ii) all or any portion
of the cost of acquiring, constructing, altering, improving or repairing any
property or assets, real or personal, or improvements used or to be used in
connection with such property or (iii) Indebtedness incurred by the Company or
any Restricted Subsidiary to provide funds for the activities set forth in
clauses (i) and (ii) above;
(c) Liens securing Indebtedness owed by a Restricted Subsidiary to the
Company or to any other Restricted Subsidiary;
(d) Liens on property existing at the time of acquisition of such
property by the Company or a Subsidiary or Liens on the property of any Person
existing at the time such Person becomes a Restricted Subsidiary of the Company
or is merged with the Company in compliance with Article V hereof and in either
case not incurred as a result of (or in connection with or in anticipation of)
the acquisition of such property or such Person becoming a Restricted Subsidiary
of the Company or being merged with the Company, provided that such Liens do not
extend to or cover any property or assets of the Company or any of its
Restricted Subsidiaries other than the property so acquired;
(e) Liens on any property securing (i) Indebtedness incurred in
connection with the construction, installation or financing of pollution control
or abatement facilities or other forms of industrial revenue bond financing or
(ii) Indebtedness issued or guaranteed by the United States or any State thereof
or any department, agency or instrumentality of either;
(f) any Lien extending, renewing or replacing (or successive
extensions, renewals or replacements of) any Lien of any type permitted under
clauses (a) through (e) above, provided that such Lien extends to or covers only
the property that is subject to the Lien being extended, renewed or replaced;
(g) any Ordinary Course Lien arising, but only so long as continuing,
in the ordinary course of business of the Company and the Restricted
Subsidiaries;
(h) any Lien resulting from the deposit of moneys or evidences of
Indebtedness in trust for the purpose of defeasing Indebtedness of the Company
or any Subsidiary; or
(i) Liens (exclusive of any Lien of any type otherwise permitted under
clauses (a) through (h) above) securing Indebtedness of the Company or any
Restricted Subsidiary in an aggregate principal amount which, together with the
aggregate amount of Attributable Indebtedness deemed to be outstanding in
respect of all Sale/Leaseback Transactions entered into pursuant to clause (a)
of Section 4.08 (exclusive of any such Sale/Leaseback Transactions otherwise
permitted under clauses (a) through (h) above), does not at the time such
Indebtedness is incurred exceed 5% of the Consolidated Net Tangible Assets of
the Company (as shown in the most recent audited consolidated balance sheet of
the Company and its Subsidiaries).
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Notwithstanding the foregoing, nothing in this Section 4.09 shall be
deemed to prohibit or otherwise limit the following types of transactions:
(1) the sale, granting of Liens with respect to, or other transfer of,
crude oil, natural gas or other petroleum hydrocarbons in place for a period of
time until, or in an amount such that, the transferee will realize therefrom a
specified amount (however determined) of money or of such crude oil, natural gas
or other petroleum hydrocarbons;
(2) the sale or other transfer of any other interest in property of
the character commonly referred to as a production payment, overriding royalty,
forward sale or similar interest;
(3) the entering into of Hedging Obligations although Liens securing
any Indebtedness for borrowed money that is the subject of any Hedging
Obligations shall not be permitted hereby unless permitted under clauses (a)
through (i) above; or
(4) the granting of Liens required by any contract or statute in order
to permit the Company or any Restricted Subsidiary to perform any contract or
subcontract made by it with or at the request of the United States or any State
thereof or any department, agency or instrumentality of either, or to secure
partial, progress, advance or other payments to the Company or any Restricted
Subsidiary by such governmental unit pursuant to the provisions of any contract
or statute.
ARTICLE V
SUCCESSORS
Section 5.01 Limitations on Mergers and Consolidations.
The Company shall not consolidate or merge with or into any Person, or
sell, lease, convey or otherwise dispose of all or substantially all of its
assets, or assign any of its obligations hereunder or under the Securities, to
any Person, unless:
(a) the Person formed by or surviving such consolidation or merger (if
other than the Company), or to which such sale, lease, conveyance or other
disposition or assignment shall be made (collectively, the "Successor"), is a
corporation organized and existing under the laws of the United States or any
State thereof or the District of Columbia, and the Successor assumes by
supplemental indenture in a form satisfactory to the Trustee all of the
obligations of the Company, under this Indenture and the Securities;
(b) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing; and
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(c) the Company shall have delivered to the Trustee prior to the
consummation of the proposed transaction an Officers' Certificate and an Opinion
of Counsel, each stating that the proposed transaction and such supplemental
indenture comply with this Indenture.
Section 5.02 Successor Corporation Substituted.
Upon any consolidation or merger of the Company with or into any
Person, or any sale, lease, conveyance or other disposition of all or
substantially all of the assets of the Company or any assignment of the
obligations of the Company under this Indenture or the Securities in accordance
with Section 5.01, the Successor formed by such consolidation or into or with
which the Company is merged or to which such sale, lease, conveyance or other
disposition or assignment is made shall succeed to, and be substituted for, and
may exercise every right and power of, the Company, under this Indenture and the
Securities with the same effect as if such Successor had been named as the
Company herein and the predecessor Company in the case of a sale, lease,
conveyance or other disposition or assignment, shall be released from all
obligations under this Indenture and the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on any Security
when the same becomes due and payable and the Default continues for a
period of 30 days;
(2) the Company defaults in the payment of the principal of or
premium, if any, on any Security when the same becomes due and payable
at Stated Maturity, upon acceleration or otherwise;
(3) the Company fails to comply with any of its other agreements or
covenants in, or provisions of, the Securities, or this Indenture and
such failure continues for the period and after the notice specified
in the last paragraph of this Section 6.01;
(4) any default shall occur which results in the acceleration of the
maturity of any Indebtedness of the Company or any Restricted
Subsidiary (other than the Securities) having an outstanding principal
amount of $5 million or more individually or, taken together with all
other such Indebtedness that has been so accelerated, in the
aggregate; or any default shall occur in the payment of any principal
or interest in respect of any Indebtedness of the Company or any
Restricted Subsidiary (other than the Securities) having an
outstanding
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principal amount of $5 million or more individually or, taken together
with all other such Indebtedness with respect to which any such
payment has not been made, in the aggregate and such default shall be
continuing for a period of 30 days without the Company or such
Restricted Subsidiary, as the case may be, effecting a cure of such
default;
(5) failure by the Company or any Restricted Subsidiary to pay final,
non-appealable judgments aggregating in excess of $10 million, which
judgments are not paid, discharged or stayed for a period of 60 days;
(6) the Company or any Restricted Subsidiary pursuant to or within the
meaning of any Bankruptcy Law:
(a) commences a voluntary case,
(b) consents to the entry of an order for relief against it in an
involuntary case,
(c) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or
(d) makes a general assignment for the benefit of its creditors; or
(7) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(a) is for relief against the Company or any Restricted Subsidiary as
debtor in an involuntary case,
(b) appoints a Custodian of the Company or any Restricted Subsidiary
or a Custodian for all or substantially all of the property of the Company or
any Restricted Subsidiary, or
(c) orders the liquidation of the Company or any Restricted
Subsidiary,
and the order or decree remains unstayed and in effect for 60 days.
The term "Custodian" means any receiver, trustee, assignee, liquidator
or similar official under any Bankruptcy Law.
A Default under clause (3) is not an Event of Default until the
Trustee notifies the Company or the Holders of at least 25% in principal amount
of the then outstanding Securities notify the Company, and the Trustee, of the
Default, and the Company does not cure the Default within 60 days after receipt
of the notice. The notice must specify the Default, demand that it be remedied
and state that the notice is a "Notice of Default."
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Section 6.02 Acceleration.
If an Event of Default (other than an Event of Default specified in
clauses (6) or (7) of Section 6.01) occurs and is continuing, the Trustee by
notice to the Company, or the Holders of at least 25% in principal amount of the
then outstanding Securities by notice to the Company and the Trustee, may
declare the principal of and premium, if any, and accrued and unpaid interest on
all then outstanding Securities to be due and payable immediately. Upon any
such declaration the amounts due and payable on the Securities, as determined in
accordance with the next succeeding paragraph, shall be due and payable
immediately. If an Event of Default specified in clause (6) or (7) of Section
6.01 occurs, such amounts shall ipso facto become and be immediately due and
payable without any declaration, notice or other act on the part of the Trustee
or any Holder. The Holders of a majority in principal amount of the then
outstanding Securities by written notice to the Trustee may rescind an
acceleration and its consequences (other than nonpayment of principal of, or
premium, if any, or interest on the Securities) if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived.
In the event that the maturity of the Securities is accelerated
pursuant to this Section 6.02, 100% of the principal amount thereof shall become
due and payable plus accrued interest to the date of payment.
Section 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal of, or premium,
if any, or interest on the Securities or to enforce the performance of any
provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver of or acquiescence in the Event of Default. All remedies are cumulative
to the extent permitted by law.
Section 6.04 Waiver of Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority in
principal amount of the then outstanding Securities by notice to the Trustee may
waive an existing Default or Event of Default and its consequences (including
waivers obtained in connection with a tender offer or exchange offer for
Securities or a solicitation of consents in respect of Securities, provided that
in each case such offer or solicitation is made to all Holders of then
outstanding Securities on equal terms), except a continuing Default or Event of
Default in the payment of the principal of, or premium, if any, or interest on
any Security. 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;
30
but no such waiver shall extend to any subsequent or other Default or impair any
right consequent thereon.
Section 6.05 Control by Majority.
The Holders of a majority in principal amount of the then outstanding
Securities may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it hereunder. However, the Trustee may refuse to follow any
direction that conflicts with applicable law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of other Holders, or that may
involve the Trustee in personal liability.
Section 6.06 Limitations on Suits.
Subject to Section 6.07, a Holder may pursue a remedy with respect to
this Indenture or the Securities only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in principal amount of the then
outstanding Securities make a written request to the Trustee to pursue the
remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
(5) during such 60 day period the Holders of a majority in principal
amount of the then outstanding Securities do not give the Trustee a
direction inconsistent with the request.
Another Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
Section 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Security to receive payment of principal of, and premium, if
any, and interest on the Security, on or after the respective due dates
expressed in the Security, or to bring suit for the enforcement of any such
payment on or after such respective dates, shall not be impaired or affected
without the consent of the Holder.
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Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in Section 6.01(1) or (2) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the amount of principal,
premium, if any, and interest remaining unpaid on the Securities, and interest
on overdue principal and premium, if any, and, to the extent lawful, interest on
overdue interest, and such further amount as shall be sufficient to cover the
costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers or
documents and to take such actions, including participating as a member, voting
or otherwise, of any committee of creditors, as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and the Holders allowed in any judicial proceedings relative to the
Company or its creditors or properties and shall be entitled and empowered to
collect, receive and distribute any money or other property payable or
deliverable on any such claims and any Custodian in any such judicial proceeding
is hereby authorized by each Holder to make such payments to the Trustee, and in
the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07. To the
extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a Lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties which the Holders of the Securities may be entitled to
receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. 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 Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this Article, it shall pay
out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
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Second: to Holders for amounts due and unpaid on the Securities for
principal, premium, if any, and interest ratably, without preference or priority
of any kind, according to the amounts due and payable on the Securities for
principal, premium, if any, and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Article.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture or in any suit against the Trustee for any action taken or omitted by
it as a Trustee, a court in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including reasonable
attorneys' fees, against any party litigant in the suit, having due regard to
the merits and good faith of the claims or defenses made by the party litigant.
This Section does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by a Holder or Holders of more than 10% in
principal amount of the then outstanding Securities.
ARTICLE VII
TRUSTEE
Section 7.01 Duties of Trustee.
(1) If 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 such exercise, as
a prudent man would exercise or use under the circumstances in the conduct
of his own affairs.
(2) Except during the continuance of an Event of Default:
(a) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(b) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture. However, the
Trustee shall examine such certificates and opinions to determine whether or not
they appear to conform to the requirements of this Indenture.
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(3) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(a) this paragraph does not limit the effect of paragraph (2) of this
Section;
(b) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction received by
it pursuant to Section 6.05.
(4) Whether or not therein expressly so provided, every provision of
this Indenture that in any way relates to the Trustee is subject to
paragraphs (1), (2) and (3) of this Section.
(5) No provision of this Indenture shall require the Trustee to expend
or risk its own funds or incur any liability. The Trustee may refuse to
perform any duty or exercise any right or power unless it receives
indemnity satisfactory to it against any loss, liability or expense.
(6) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds
except to the extent required by law. All money received by the Trustee
shall, until applied as herein provided, be held in trust for the payment
of the principal of, and premium, if any, and interest on the Securities.
Section 7.02 Rights of Trustee.
(1) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee
need not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall
not be liable for any action it takes or omits to take in good faith in
reliance on such Officers' Certificate or Opinion of Counsel. The Trustee
may consult with counsel of its choice and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(3) The Trustee may act through agents and attorneys and shall not be
responsible for the misconduct or negligence of any agent or attorney
appointed with due care.
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(4) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this Indenture, any
demand, request, direction or notice from the Company shall be
sufficient if signed by an Officer of the Company.
(6) 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 negligent action, negligent
omission or its willful misconduct.
(7) The Trustee shall not be charged with knowledge of any Event of
Default under Section 6.01 (other than an Event of Default under Section
6.01(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 either (1) a Trust Officer of the Trustee shall have actual
knowledge thereof or (2) the Trustee shall have received notice thereof
in accordance with Section 10.02 hereof from the Company or a Holder.
Section 7.03 Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company, or any
of its Affiliates with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. However, the Trustee is subject to
Sections 7.10 and 7.11.
Section 7.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities or any money paid to the Company or upon
the Company's direction under any provision hereof, it shall not be responsible
for the use or application of any money received by any Paying Agent other than
the Trustee and it shall not be responsible for any statement or recital herein
or any statement in the Securities other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and it is
known to the Trustee, the Trustee shall mail to Holders a notice of the Default
or Event of Default within 90 days after it occurs. Except in the case of a
Default or Event of Default in payment of principal of, or premium, if any, or
interest on any Security, the Trustee may withhold the notice if and so long as
the board of directors, the executive committee or a trust committee of
directors and/or Trust Officers of the Trustee in good faith determines that
withholding the notice is in the interests of Holders.
35
Section 7.06 Reports by Trustee to Holders.
Within 60 days after each January 31, beginning with January 31, 1998,
and in any event on or before April 1 in each year, the Trustee shall mail to
Holders a brief report dated as of such January 31 that complies with TIA (S)
313 (a); provided, however, that if no event described in TIA (S) 313 (a) has
occurred within the twelve months preceding the reporting date, no report need
be transmitted. The Trustee also shall comply with TIA (S) 313 (b). The
Trustee shall also transmit by mail all reports as required by TIA (S) 313 (c).
A copy of each report at the time of its mailing to Holders shall be filed
with the SEC and each securities exchange, if any, on which the Securities are
listed. The Company shall notify the Trustee when the Securities are listed on
any stock exchange.
Section 7.07 Compensation and Indemnity.
The Company agrees to pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company agrees to reimburse the Trustee upon
request for all reasonable disbursements, advances and expenses incurred or made
by it in accordance with any provision of this Indenture. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
Except as set forth in the next paragraph, the Company agrees to indemnify
the Trustee against any loss, liability or expense incurred by it arising out of
or in connection with the acceptance or administration of its duties under this
Indenture, including the costs and expenses of defending itself against any
claim of liability in connection with the exercise or performance of any of its
duties hereunder. The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. The Company shall defend the claim and the Trustee
shall cooperate in the defense. The Trustee may have separate counsel and the
Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent, which consent shall
not be unreasonably withheld.
The Company shall not be obligated to reimburse any expense or indemnify
against any loss or liability incurred by the Trustee through negligence or bad
faith, as determined by a court of competent jurisdiction.
To secure the payment obligations of the Company in this Section, the
Trustee shall have a Lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal of and
premium, if any, and interest on particular Securities. Such Lien shall survive
the satisfaction and discharge of this Indenture.
36
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(6) or (7) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign and be discharged from the trust hereby created
by so notifying the Company. The Holders of a majority in principal amount of
the then outstanding Securities may remove the Trustee by so notifying the
Trustee and the Company. The Company may remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(iii) a Custodian or public officer takes charge of the Trustee or
its property; or
(iv) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the then outstanding Securities
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders. The retiring
Trustee shall promptly transfer all property held by it as Trustee to the
successor Trustee, subject to the Lien provided for in Section 7.07.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the
obligations of the Company under Section 7.07 shall continue for the benefit of
the retiring Trustee.
37
Section 7.09 Successor Trustee by Merger, etc.
Subject to Section 7.10, if the Trustee consolidates, merges or converts
into, or transfers all or substantially all of its corporate trust business to,
another corporation, the successor corporation without any further act shall be
the successor Trustee; provided, however, that in the case of a transfer of all
or substantially all of its corporate trust business to another corporation, the
transferee corporation expressly assumes all of the Trustee's liabilities,
duties and responsibilities hereunder.
In case any Securities 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 Securities so authenticated, with the same effect as if such
successor Trustee had itself authenticated such Securities.
Section 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia and authorized under such
laws to exercise corporate trust powers, shall be subject to supervision or
examination by Federal or State (or the District of Columbia) authority and
shall have a combined capital and surplus of at least $50 million as set forth
in its most recent published report of condition.
The Indenture shall always have a Trustee who satisfies the requirements
of TIA (S)(S) 310(a) (1), 310 (a) (2) and 310 (a) (5). The Trustee is subject to
and shall comply with the provisions of TIA (S) 310 (b) during the period of
time required by this Indenture. Nothing in this Indenture shall prevent the
Trustee from filing with the SEC the application referred to in the penultimate
paragraph of TIA (S) 310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to and shall comply with the provisions of TIA
(S) 311 (a), excluding any creditor relationship listed in TIA (S) 311(b). A
Trustee who has resigned or been removed shall be subject to TIA (S) 311(a) to
the extent indicated therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
Section 8.01 Termination of Company's Obligations.
(1) This Indenture shall cease to be of further effect (except that the
Company's obligations under Section 7.07 and the Trustee's and Paying
Agent's obligations under Section 8.03 shall survive), and the Trustee, on
demand and expense of the Company, shall
38
execute proper instruments acknowledging the satisfaction and discharge of
this Indenture, when:
(a) either
(i) all outstanding Securities theretofore authenticated and
issued (other than destroyed, lost or stolen Securities that have been
replaced or paid) have been delivered to the Trustee for cancellation; or
(ii) all outstanding Securities 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, or
(C) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice
of redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of clause (A), (B) or (C) above, has
deposited or caused to be deposited with the Trustee as funds (immediately
available to the Holders in the case of clause (A)) in trust for the
purpose an amount which, together with earnings thereon, will be
sufficient to pay and discharge the entire indebtedness on such Securities
for principal, premium, if any, and interest to the date of such deposit
(in the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(b) the Company has paid of caused to be paid all other sums payable by
it hereunder; and
(c) the Company has delivered to the Trustee an Officers' Certificate
stating that all conditions precedent to satisfaction and discharge of this
Indenture have been complied with, together with an Opinion of Counsel to the
same effect.
(2) The Company may terminate all of its obligations under this
Indenture, except as provided below, if:
(a) the Company irrevocably deposits in trust with the Trustee money or
U.S. Government Obligations sufficient to pay principal of and interest on the
Securities to maturity, and to pay all other sums payable by it hereunder,
provided that the Trustee shall have been irrevocably instructed to apply such
money or the proceeds of such U.S. Government Obligations to the payment of said
principal and interest with respect to the Securities as the same shall become
due;
39
(b) the Company delivers to the Trustee an Officers' Certificate
stating that all conditions precedent to satisfaction and discharge of this
Indenture have been complied with, and an Opinion of Counsel to the same effect;
(c) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit; and
(d) the Company shall have delivered to the Trustee an Opinion of
Counsel from nationally recognized counsel acceptable to the Trustee or a tax
ruling to the effect that the Holders of the Securities will not recognize
income, gain or loss for federal income tax purposes as a result of the
Company's exercise of its option under this Section 8.01(2) and will be subject
to federal income tax on the same amount and in the same manner and at the same
times as would have been the case if such option had not been exercised.
In such event, this Indenture shall cease to be of further effect
(except as provided in the next succeeding paragraph), and the Trustee, on
demand and expense of the Company, shall execute proper instruments
acknowledging confirmation of and discharge under this Indenture.
However, the Company's obligations in Sections 2.05, 2.06, 2.07, 2.08,
2.10, 2.11, 4.01, 7.07, 7.08 and 8.04, and the Company's, the Trustee's and
Paying Agent's obligations in Section 8.03 shall survive until the Securities
are no longer outstanding.
Thereafter, only the Company's obligations in Section 7.07 and the
Trustee's and Paying Agent's obligations in Section 8.03 shall survive.
After such irrevocable deposit made pursuant to this Section 8.01(2)
and satisfaction of the other conditions set forth herein, the Trustee upon
request and expense of the Company shall acknowledge in writing the discharge of
the Company's obligations under this Indenture except for those surviving
obligations specified above.
In order to have money available on a payment date to pay principal of
or interest on the Securities, the U.S. Government Obligations shall be payable
as to principal or interest on or before such payment date in such amounts as
will provide the necessary money. U.S. Government Obligations shall not be
callable at the issuer's option.
Section 8.02 Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Section 8.01. It shall apply the deposited money
and the money from U.S. Government Obligations through the Paying Agent and in
accordance with this Indenture to the payment of principal of and premium, if
any, and interest on the Securities.
40
Section 8.03 Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to the Company
upon written request any excess money or securities held by them at any time.
The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal, premium, if any, or
interest that remains unclaimed for two years after the date upon which such
payment shall have become due; provided, however, that the Company shall have
either caused notice of such payment to be mailed to each Holder entitled
thereto no less than 30 days prior to such repayment or within such period shall
have published such notice in a financial newspaper of widespread circulation
published in The City of New York. After payment to the Company, Holders
entitled to the money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another Person, and all
liability of the Trustee and the Paying Agent with respect to such money shall
cease.
Section 8.04 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or
U.S. Government Obligations in accordance with Section 8.01 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the obligations of the Company under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.01 until such time as the Trustee or the Paying Agent is
permitted to apply all such money or U.S. Government Obligations in accordance
with Section 8.01; provided, however, that if the Company has made any payment
of principal of or premium, if any, or interest on any Securities because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee or the Paying Agent.
ARTICLE IX
AMENDMENTS
Section 9.01 Without Consent of Holders.
The Company, and the Trustee may amend this Indenture or the Securities
or waive any provision hereof or thereof without the consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 5.01;
41
(3) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(4) to comply with any requirement in order to effect or maintain the
qualification of this Indenture under the TIA; or
(5) to make any change that does not adversely affect the rights
hereunder of any Holder in any material respect.
Upon the request of the Company, accompanied by a resolution of the
Board of Directors (certified by the Secretary or an Assistant Secretary of the
Company) authorizing the execution of any such supplemental indenture, and upon
receipt by the Trustee of the documents described in Section 9.06, the Trustee
shall join with the Company in the execution of any supplemental indenture
authorized or permitted by the terms of this Indenture and make any further
appropriate agreements and stipulations that may be therein contained. After an
amendment or waiver under this Section becomes effective, the Company shall mail
to the Holders of each Security affected thereby a notice briefly describing the
amendment or waiver. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such supplemental indenture.
Section 9.02 With Consent of Holders.
Except as provided below in this Section 9.02, the Company, and the
Trustee may amend this Indenture or the Securities with the written consent
(including consents obtained in connection with a tender offer or exchange offer
for Securities or a solicitation of consents in respect of Securities, provided
that in each case such offer or solicitation is made to all Holders of then
outstanding Securities on equal terms) of the Holders of at least a majority in
principal amount of the then outstanding Securities.
Upon the request of the Company accompanied by a resolution of the
Board of Directors (certified by the Secretary or an Assistant Secretary of the
Company) authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of the Holders as
aforesaid, and upon receipt by the Trustee of the documents described in Section
9.06, the Trustee shall join with the Company in the execution of such
supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment or waiver, but
it shall be sufficient if such consent approves the substance thereof.
The Holders of a majority in principal amount of the then outstanding
Securities may waive compliance in a particular instance by the Company with any
provision of this Indenture or the Securities (including waivers obtained in
connection with a tender offer or exchange offer for Securities or a
solicitation of consents in respect of Securities, provided that in each case
such offer
42
or solicitation is made to all Holders of then outstanding Securities on equal
terms). However, without the consent of each Holder affected, an amendment or
waiver under this Section may not:
(1) reduce the percentage in principal amount of outstanding
Securities whose Holders must consent to an amendment, supplement or
waiver;
(2) reduce the rate of or change the time for payment of interest,
including default interest, on any Security;
(3) reduce the principal of or change the fixed maturity of any
Security or alter the premium or other provisions with respect to
redemption under Section 3.07 or specified in the Securities;
(4) make any Security payable in money other than that stated in the
Security;
(5) impair the right to institute suit for the enforcement of any
payment of principal of, or premium, if any, or interest on any
Security pursuant to Sections 6.06 and 6.07, except as limited by
Section 6.06;
(6) make any change in the percentage of principal amount of
Securities necessary to waive compliance with certain provisions of
this Indenture pursuant to Section 6.04 or 6.07 or this sentence of
this Section 9.02; or
(7) waive a continuing Default or Event of Default in the payment of
principal of, or premium, if any, or interest on the Securities.
The right of any Holder to participate in any consent required or
sought pursuant to any provision of this Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such Holder) may be
subject to the requirement that such Holder shall have been the Holder of record
of any Securities with respect to which such consent is required or sought as of
a date identified by the Trustee in a notice furnished to Holders in accordance
with the terms of this Indenture.
Section 9.03 Compliance with Trust Indenture Act .
Every amendment to this Indenture or the Securities shall comply in
form and substance with the TIA as then in effect.
Section 9.04 Revocation and Effect of Consents .
Until an amendment (which includes any supplement) or waiver becomes
effective, a consent to it by a Holder of a Security is a continuing consent by
the Holder and every subsequent Holder of a Security or portion of a Security
that evidences the same debt as the consenting Holder's
43
Security, even if notation of the consent is not made on any Security. However,
any such Holder or subsequent Holder may revoke the consent as to his or her
Security or portion of a Security if the Trustee receives written notice of
revocation before the date the amendment or waiver becomes effective. An
amendment or waiver becomes effective in accordance with its terms and
thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment or
waiver. If the Company elects to fix a record date for such purpose, the record
date shall be fixed at (i) the later of 30 days prior to the first solicitation
of such consent or the date of the most recent list of Holders furnished to the
Trustee prior to such solicitation pursuant to Section 2.13, or (ii) such other
date as the Company shall designate. If a record date is fixed, then
notwithstanding the provisions of the immediately preceding paragraph, those
Persons who were Holders at such record date (or their duly designated proxies),
and only those Persons, shall be entitled to consent to such amendment or waiver
or to revoke any consent previously given, whether or not such Persons continue
to be Holders after such record date. No consent shall be valid or effective
for more than 90 days after such record date unless consents from Holders of the
principal amount of Securities required hereunder for such amendment or waiver
to be effective shall have also been given and not revoked within such 90-day
period.
After an amendment or waiver becomes effective, it shall bind every
Holder, unless it is of the type described in any of clauses (1) through (7) of
Section 9.02. In such case, the amendment or waiver shall bind each Holder of a
Security who has consented to it and every subsequent Holder of a Security that
evidences the same debt as the consenting Holder's Security.
Section 9.05 Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment or
waiver on any Security thereafter authenticated. The Company in exchange for
all Securities may issue and the Trustee shall authenticate new Securities that
reflect the amendment or waiver.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplemental indenture
authorized pursuant to this Article if the amendment does not adversely affect
the rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing or refusing to sign such
amendment or supplemental indenture, the Trustee shall be entitled to receive
and, subject to Section 7.01, shall be fully protected in relying upon, an
Officers' Certificate and Opinion of Counsel as conclusive evidence that such
amendment or supplemental indenture is authorized or permitted by this
Indenture, that it is not inconsistent herewith, and that it will be valid and
binding upon the Company in accordance with its terms.
44
ARTICLE X
MISCELLANEOUS
Section 10.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by TIA (S) 318(c) the imposed duties shall control.
Section 10.02 Notices.
Any notice or communication by the Company, or the Trustee to the
others is duly given if in writing and delivered in Person or mailed by
registered or certified mail (return receipt requested), telex, telecopier or
overnight air courier guaranteeing next day delivery, to the other's address:
If to the Company:
▇▇▇▇▇▇▇ Resources Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
If to the Trustee:
Bankers Trust Company
Corporate Trust and Agency Group
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Market Services
The Company, or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
All notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and the
next Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first-class
mail, postage prepaid, to the Holder's address shown on the register kept by the
Registrar. Failure to mail a notice or communication to a Holder or any defect
in it shall not affect its sufficiency with respect to other Holders.
45
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
Section 10.03 Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA (S) 312(b) with other Holders
with respect to their rights under this Indenture or the Securities. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA (S) 312(c).
Section 10.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements set
forth in Section 10.05) stating that, in the opinion of the signers,
all conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements set
forth in Section 10.05) stating that, in the opinion of such counsel,
all such conditions precedent and covenants have been complied with.
Section 10.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such
examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
46
Section 10.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or the Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
Section 10.07 Legal Holidays.
A "Legal Holiday" is a Saturday, a Sunday or a day on which banking
institutions in The City of New York or at a place of payment are authorized or
obligated by law, regulation or executive order to remain closed. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that is not a Legal Holiday, and no interest shall
accrue for the intervening period.
Section 10.08 No Recourse Against Others.
A director, officer, employee or stockholder of the Company, as such,
shall not have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting a
Security waives and releases all such liability.
Section 10.09 Governing Law.
This Indenture and the Securities shall be governed by and construed
in accordance with the laws of the State of New York, without regard to
principles of conflicts of law.
Section 10.10 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company, or any Subsidiary of the Company. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 10.11 Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its Successor. All agreements of the Trustee in this Indenture shall
bind its successor.
Section 10.12 Severability.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
47
Section 10.13 Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together represent the same
agreement.
Section 10.14 Trustee as Paying Agent and Registrar.
The Company initially appoints the Trustee as Paying Agent and
Registrar.
Section 10.15 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
48
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
▇▇▇▇▇▇▇ RESOURCES CORPORATION
By: ____________________________
Title: Vice President - Finance
BANKERS TRUST COMPANY, as Trustee
By: ____________________________
Title: Vice President
49
EXHIBIT A
[FACE OF SECURITY]
▇▇▇▇▇▇▇ RESOURCES CORPORATION
____% SENIOR NOTE DUE 2007
[IF THE SECURITY IS TO BE A GLOBAL SECURITY, INSERT THE FOLLOWING - - THIS
SECURITY IS A BOOK-ENTRY SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE DEPOSITORY TO
A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY
OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE
OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.]
CUSIP
No. $____________
▇▇▇▇▇▇▇ Resources Corporation, a Delaware corporation (the "Company"), for value
received promises to pay to or registered assigns, the
principal sum of Dollars on January 15, 2007.
Interest Payment Dates: January 15 and July 15
Record Dates: __________ and __________
Reference is hereby made to the further provisions of this Security set forth on
the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers and a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Dated:
[SEAL] ▇▇▇▇▇▇▇ RESOURCES CORPORATION
By:__________________________
By:__________________________
Certificate of Authentication:
Bankers Trust Company
as Trustee, certifies that this is one of
the Securities referred to in the
within-mentioned Indenture.
By:__________________________
Authorized Signature
[REVERSE OF SECURITY]
▇▇▇▇▇▇▇ RESOURCES CORPORATION
____% SENIOR NOTE DUE 2007
1. Interest. ▇▇▇▇▇▇▇ Resources Corporation, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security at
___% per annum from _________, 1997 until maturity. The Company will pay
interest semiannually on January 15 and July 15 of each year (each an "Interest
Payment Date"), or if any such day is not a Business Day, on the next succeeding
Business Day. Interest on the Securities will accrue from the most recent
Interest Payment Date on which interest has been paid or, if no interest has
been paid, from _________, 1997; provided, that if there is no existing Default
in the payment of interest, and if this Security is authenticated between a
record date referred to on the face hereof and the next succeeding Interest
Payment Date, interest shall accrue from such next succeeding Interest Payment
Date; provided, further, that the first Interest Payment Date shall be July 15,
1997. The Company shall pay interest on overdue principal and premium, if any,
from time to time on demand at a rate equal to the interest rate then in effect;
it shall pay interest on overdue installments of interest (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Securities
(except defaulted interest) to the Persons who are registered Holders of
Securities at the close of business on the record date next preceding the
Interest Payment Date, even if such Securities are canceled after such record
date and on or before such Interest Payment Date. The Holder must surrender this
Security to a Paying Agent to collect principal payments. The Company will pay
the principal of, premium, if any, and interest on the Securities in money of
the United States of America that at the time of payment is legal tender for
payment of public and private debts. The Company, however, may pay such amounts
by check payable in such money. It may mail an interest check to a Holder's
registered address.
3. Ranking. The Securities will be senior unsecured obligations of the
Company.
4. Paying Agent and Registrar. Initially, Bankers Trust Company, the
Trustee under the Indenture, will act as Paying Agent and Registrar. The Company
may change any Paying Agent, Registrar or co-registrar without notice to any
Holder. The Company may act in any such capacity.
5. Indenture. The Company issued the Securities under an Indenture dated as
of _________, 1997 (the "Indenture") between the Company, and the Trustee. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended (15 U.S. Code (S)(S) 77aaa-77bbbb) as in effect on the date of execution
of the Indenture. The Securities are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. The
Securities are unsecured general obligations of the Company limited to
$150,000,000 in aggregate principal amount.
6. Optional Redemption. The Securities may be redeemed at any time, at the
option of the Company, in whole or from time to time in part, at a price equal
to 100% of their principal amount plus accrued and unpaid interest, if any, to
the Redemption Date plus the Make-Whole Premium, if any (the "Redemption
Price"). The amount of the Make-Whole Premium with respect to any Security (or
portion thereof) to be redeemed will be equal to the excess, if any, of:
(i) the sum of the present values, calculated as of the Redemption
Date, of:
(A) each interest payment that, but for such redemption, would
have been payable on the Security (or portion thereof) being redeemed on
each Interest Payment Date occurring after the Redemption Date (excluding
any accrued interest for the period prior to the Redemption Date); and
(B) the principal amount that, but for such redemption, would
have been payable at the final maturity of the Security (or portion
thereof) being redeemed;
over
(ii) the principal amount of the Security (or portion thereof) being
redeemed.
The present values of interest and principal payments referred to in clause (a)
above will be determined in accordance with generally accepted principles of
financial analysis. Such present values will be calculated by discounting the
amount of each payment of interest or principal from the date that each such
payment would have been payable, but for the redemption, to the Redemption Date
at a discount rate equal to the Treasury Yield plus ____ basis points. The
Make-Whole Premium shall be calculated by an Independent Investment Banker (as
defined in the Indenture).
For purposes of determining the Make-Whole Premium, "Treasury Yield" means
a rate of interest per annum equal to the weekly average yield to maturity of
United States Treasury Notes that have a constant maturity that corresponds to
the remaining term to maturity of the Securities, calculated to the nearest
1/12th of a year (the "Remaining Term"). The Treasury Yield will be determined
as of the third Business Day immediately preceding the applicable Redemption
Date. The weekly average yields of United States Treasury Notes will be
determined by reference to the most recent statistical release published by the
Federal Reserve Bank of New York and designated "H.15 (519) Selected Interest
Rates" or any successor release (the "H. I 5 Statistical Release"). If the H.15
Statistical Release sets forth a weekly average yield for United States Treasury
Notes having a constant maturity that is the same as the Remaining Term, then
the Treasury Yield will be equal to such weekly average yield. In all other
cases, the Treasury Yield will be calculated by interpolation, on a straight-
line basis, between the weekly average yields on the United States Treasury
Notes that have a constant maturity closest to and greater than the Remaining
Term and the United States Treasury Notes that have a constant maturity closest
to and less than the Remaining Term (in each case as set forth in the H.15
Statistical Release). Any weekly average yields so calculated by interpolation
will be rounded to the nearest 1/100th of 1%, with any figure of 1/200% or
above being rounded upward. If weekly average yields for United States Treasury
Notes are not available in the H.15 Statistical Release or otherwise, then the
Treasury Yield will be calculated by interpolation of comparable rates selected
by the Independent Investment Banker.
Periodic interest installments with respect to which the Interest Payment
Date is on or prior to any Redemption Date will be payable to the Holders of
record at the close of business on the relevant record dates referred to herein,
all as provided in the Indenture.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the Redemption Date to each Holder of Securities to be redeemed at
his registered address. Securities in denominations larger than $ 1,000 may be
redeemed in part but only in whole multiples of $1,000. On and after the
Redemption Date interest will cease to accrue on Securities or on the portions
thereof called for redemption, as the case may be.
7. Denominations, Transfer, Exchange. The Securities originally issued are
in the form of a permanent global security. Under certain circumstances
described in the Indenture, the Securities may also be issued in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Securities may be registered and Securities may be exchanged as
provided in the Indenture. The Registrar and the Trustee may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay any taxes and fees required by law or permitted by the Indenture. The
Registrar need not exchange or register the transfer of any Security or portion
of a Security selected for redemption. Also, it need not exchange or register
the transfer of any Securities for a period of 15 days before a selection of
Securities to be redeemed.
8. Persons Deemed Owners. The registered Holder of a Security shall be
treated as its owner for all purposes.
9. Amendments and Waivers. Subject to certain exceptions and limitations,
the Indenture or the Securities may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the then
outstanding Securities, and any existing Default under, or compliance with any
provision of, the Indenture may be waived (other than any continuing Default or
Event of Default in the payment of the principal of or premium, if any, or
interest on the Securities) by the Holders of at least a majority in principal
amount of the Securities then outstanding in accordance with the terms of the
Indenture. Without the consent of any Holder, the Company, and the Trustee may
amend or supplement the Indenture or the Securities to cure any ambiguity,
omission, defect or inconsistency; to provide for uncertificated Securities in
addition to or in place of certificated Securities; to provide for the
assumption of the obligations of the Company under the Indenture to Holders in
the case of the merger, consolidation or sale or other disposition of all or
substantially all of the assets of the Company ; to make any change that does
not materially adversely affect the rights of any Holder; or to comply with the
qualification of the Indenture under the Trust Indenture Act of 1939, as
amended.
The right of any Holder to participate in any consent required or sought
pursuant to any provision of the Indenture (and the obligation of the Company to
obtain any such consent otherwise required from such Holder) may be subject to
the requirement that such Holder shall have been the Holder of record of any
Securities with respect to which such consent is required or sought as of a date
identified by the Trustee in a notice furnished to Holders in accordance with
the terms of the Indenture.
Without the consent of each Holder affected, the Company may not (i) reduce
the amount of Securities whose Holders must consent to an amendment, supplement
or waiver, (ii) reduce the rate of or change the time for payment of interest,
including default interest, on any Security, (iii) reduce the principal of or
change the fixed maturity of any Security or alter the premium or other
provisions with respect to redemption, (iv) make any Security payable in money
other than that stated in the Security, (v) impair the right to institute suit
for the enforcement of any payment of principal of, or premium, if any, or
interest on, any Security (except as provided in the Indenture), (vi) make any
change in the percentage of principal amount of Securities necessary to waive
compliance with certain provisions of the Indenture or (vii) waive a continuing
Default or Event of Default in the payment of principal of or premium, if any,
or interest on the Securities.
10. Defaults and Remedies. Events of Default include: default in payment of
interest on the Securities for 30 days; default in payment of principal of or
premium, if any, on the Securities; failure by the Company for 60 days after
written notice by the Trustee or by the Holders of at least 25% of the aggregate
principal amount of the Securities then outstanding to it to comply with any of
its other covenants or agreements in the Indenture or the Securities; the
acceleration of the maturity of any Indebtedness of the Company or any
Restricted Subsidiary (other than the Securities) that has an outstanding
principal amount of $5 million or more individually or in the aggregate; a
default in the payment of principal or interest in respect of any Indebtedness
of the Company or any Restricted Subsidiary (other than the Securities) having
an outstanding principal amount of $5 million or more individually or in the
aggregate, and such default shall be continuing for a period of 30 days without
the Company or such Restricted Subsidiary, as the case may be, effecting a cure
of such default; failure by the Company or any Restricted Subsidiary to pay
final, non-appealable judgements aggregating in excess of $10 million, which
judgements are not paid, discharged or stayed for a period of 60 days; or
certain events involving bankruptcy, insolvency or reorganization of the Company
or any Restricted Subsidiary. If an Event of Default occurs and is continuing,
the Trustee or the Holders of at least 25% in principal amount of the then
outstanding Securities may declare the principal of, and premium, if any, and
interest on all the Securities to be immediately due and payable, except that in
the case of an Event of Default arising from certain events of bankruptcy,
insolvency or reorganization of the Company or any Restricted Subsidiary, all
outstanding Securities become due and payable immediately without further action
or notice. The amount due and payable upon the acceleration of any Security is
equal to 100% of the principal amount thereof plus accrued interest to the date
of payment. Holders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it
before it enforces the Indenture or the Securities. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Securities may direct the Trustee in its exercise of any trust or power.
The Trustee may withhold from Holders notice of any continuing default (except a
default in payment of principal or interest) if it determines that withholding
notice is in their interests. The Company must furnish an annual compliance
certificate to the Trustee.
11. Trustee Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not Trustee.
12. No Recourse against Others. A director, officer, employee or
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Holder by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Securities.
13. Authentication. This Security shall not be valid until authenticated by
the manual signature of the Trustee.
14. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (=joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Request may be made to:
▇▇▇▇▇▇▇ Resources Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer
this Security to
________________________________________________________________________________
(Insert assignee's social security or tax I.D. number)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
as agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
________________________________________________________________________________
Date: Your Signature:
(Sign exactly as your name appears on the face of this Security)
________________________________________________________________________________
Signature Guarantee:
(Participant in a Recognized Signature or Medallion Program)