1
EXHIBIT 4.4
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ORYX ENERGY COMPANY
AND
IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY
Trustee
_______________________
Indenture Relating to Senior Subordinated Debt Securities
Dated as of __________________
_______________________
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ORYX ENERGY COMPANY
Reconciliation and tie between Sections 310-318(a)
of the Trust Indenture Act of 1939 and the
Indenture relating to Senior Subordinated Debt Securities,
dated as of _________ __, ____
Trust
Indenture Indenture
Act Section Section
------------ -------------
310(a)(1) . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . 608
311(a) . . . . . . . . . . . . . . . . . 613(a)
(b) . . . . . . . . . . . . . . . . . 613(b)
(b)(2) . . . . . . . . . . . . . . . . . 703(a)(2)
703(b)
(c) . . . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . . . 701
702(a)
(b) . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . 702(c)
313(a) . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . 703(b)
(c) . . . . . . . . . . . . . . . . . 703(a)
703(b)
(d) . . . . . . . . . . . . . . . . . 703(c)
314(a) . . . . . . . . . . . . . . . . . 704
(b) . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . 102
315(a) . . . . . . . . . . . . . . . . . 601(a)
601(c)
(b) . . . . . . . . . . . . . . . . . 602
703(a)(6)
(c) . . . . . . . . . . . . . . . . . 601(b)
(d) . . . . . . . . . . . . . . . . . 601
(d)(1) . . . . . . . . . . . . . . . . . 601(a)(1)
(d)(2) . . . . . . . . . . . . . . . . . 601(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . 601(c)(3)
(e) . . . . . . . . . . . . . . . . . 514
316(a) . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . 502
512
(a)(1)(B) . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . 508
317(a)(1) . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . 1005
318(a) . . . . . . . . . . . . . . . . . 107
___________________________
NOTE: This reconciliation and the tie shall not, for any purpose, be deemed to
be a part of the Indenture.
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TABLE OF CONTENTS
RECITALS OF THE COMPANY
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . . 2
Commission . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Request . . . . . . . . . . . . . . . . . . . . . . 2
Corporate Trust Office . . . . . . . . . . . . . . . . . . . 2
Corporation . . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . . 3
Depository . . . . . . . . . . . . . . . . . . . . . . . . . 3
Dollar or $ . . . . . . . . . . . . . . . . . . . . . . . . 3
Event of Default . . . . . . . . . . . . . . . . . . . . . . 3
Global Security . . . . . . . . . . . . . . . . . . . . . . 3
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Indenture . . . . . . . . . . . . . . . . . . . . . . . . . 3
Interest . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Interest Payment Date . . . . . . . . . . . . . . . . . . . 3
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Officers' Certificate . . . . . . . . . . . . . . . . . . . 3
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . 3
Original Issue Discount Security . . . . . . . . . . . . . . 4
Oryx U.K. Energy . . . . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . . 4
Partnership . . . . . . . . . . . . . . . . . . . . . . . . 5
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Place of Payment . . . . . . . . . . . . . . . . . . . . . . 5
Predecessor Security . . . . . . . . . . . . . . . . . . . . 5
Redemption Date . . . . . . . . . . . . . . . . . . . . . . 5
Redemption Price . . . . . . . . . . . . . . . . . . . . . . 5
Regular Record Date . . . . . . . . . . . . . . . . . . . . 5
Representative . . . . . . . . . . . . . . . . . . . . . . . 5
Responsible Officer . . . . . . . . . . . . . . . . . . . . 5
Restricted Property . . . . . . . . . . . . . . . . . . . . 5
Restricted Subsidiary . . . . . . . . . . . . . . . . . . . 6
Security . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security Register . . . . . . . . . . . . . . . . . . . . . 6
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Senior Debt . . . . . . . . . . . . . . . . . . . . . . . . 6
SOLP . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Special Record Date . . . . . . . . . . . . . . . . . . . . 6
Stated Maturity . . . . . . . . . . . . . . . . . . . . . . 7
Stockholders' Equity . . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . . . . 7
Vice President . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 102. Compliance Certificates and Opinions. . . . . . . . . . . . 7
SECTION 103. Form of Documents Delivered to Trustee. . . . . . . . . . . 8
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 105. Notices, Etc., to Trustee and Company. . . . . . . . . . . . 10
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . . . . . . . . . 10
SECTION 107. Conflict with Trust Indenture Act. . . . . . . . . . . . . . 10
SECTION 108. Effect of Headings and Table of Contents. . . . . . . . . . 11
SECTION 109. Successors and Assigns. . . . . . . . . . . . . . . . . . . 11
SECTION 110. Separability Clause. . . . . . . . . . . . . . . . . . . . . 11
SECTION 111. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . 11
SECTION 112. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 113. Legal Holidays. . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 114. No Security Interest Created. . . . . . . . . . . . . . . . 12
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally. . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 202. Form of Face of Security. . . . . . . . . . . . . . . . . . 12
SECTION 203. Form of Reverse of Security. . . . . . . . . . . . . . . . . 15
SECTION 204. Form of Trustee's Certificate of Authentication. . . . . . . 21
SECTION 205. Securities Issuable in Global Form. . . . . . . . . . . . . 21
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . . . . . . . 22
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . . . . . 24
SECTION 303. Execution, Authentication, Delivery and Dating. . . . . . . 24
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . . . . . . 25
SECTION 305. Registration, Registration of Transfer and Exchange. . . . . 26
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. . . . . . 27
SECTION 307. Payment of Interest; Interest Rights Preserved. . . . . . . 28
SECTION 308. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . 29
SECTION 309. Cancellation. . . . . . . . . . . . . . . . . . . . . . . . 29
SECTION 310. Computation of Interest. . . . . . . . . . . . . . . . . . . 30
SECTION 311. CUSIP Numbers. . . . . . . . . . . . . . . . . . . . . . . . 30
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. . . . . . . . . . . 30
SECTION 402. Application of Trust Money. . . . . . . . . . . . . . . . . 31
ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . . . . . . 32
SECTION 502. Acceleration of Maturity; Rescission and Annulment. . . . . 34
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee. . . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . . . . . . 36
SECTION 505. Trustee May Enforce Claims Without Possession of Securities. 37
SECTION 506. Application of Money Collected. . . . . . . . . . . . . . . 37
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . 37
SECTION 508. Unconditional Right of Holders to Accept Principal, Premium,
and Interest. . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 509. Restoration of Rights and Remedies. . . . . . . . . . . . . 38
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . . . . . 39
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . . . 39
SECTION 512. Control by Holders. . . . . . . . . . . . . . . . . . . . . 39
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . 39
SECTION 514. Undertaking for Costs. . . . . . . . . . . . . . . . . . . . 40
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities . . . . . . . . . . . . 40
SECTION 602. Notice of Defaults. . . . . . . . . . . . . . . . . . . . . 42
SECTION 603. Certain Rights of Trustee. . . . . . . . . . . . . . . . . . 42
SECTION 604. Not Responsible for Recitals or Issuance of Securities. . . 43
SECTION 605. May Hold Securities. . . . . . . . . . . . . . . . . . . . . 43
SECTION 606. Money Held in Trust. . . . . . . . . . . . . . . . . . . . . 43
SECTION 607. Compensation and Reimbursement. . . . . . . . . . . . . . . 44
SECTION 608. Disqualification; Conflicting Interests. . . . . . . . . . . 44
SECTION 609. Corporate Trustee Required; Eligibility. . . . . . . . . . . 45
SECTION 610. Resignation and Removal; Appointment of Successor. . . . . . 45
SECTION 611. Acceptance of Appointment by Successor. . . . . . . . . . . 46
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business. . . . . . . . . . . . . . . . . . . . . . . . . . 47
SECTION 613. Preferential Collection of Claims Against Company. . . . . . 48
SECTION 614. Appointment of Authenticating Agent. . . . . . . . . . . . . 52
ARTICLE SEVEN
HOLDERS' LIST AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders. . 54
SECTION 702. Preservation of Information; Communications to Holders. . . 54
SECTION 703. Reports by Trustee. . . . . . . . . . . . . . . . . . . . . 55
SECTION 704. Reports by the Company. . . . . . . . . . . . . . . . . . . 57
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ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALE
SECTION 801. Company May Consolidate, Etc., On Certain Terms. . . . . . . 57
SECTION 802. Successor Corporation to be Substituted. . . . . . . . . . . 58
SECTION 803. Opinion of Counsel and Officers' Certificate to be Given
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . 59
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders. . . . . 59
SECTION 902. Supplemental Indentures with Consent of Holders. . . . . . . 60
SECTION 903. Execution of Supplemental Indentures. . . . . . . . . . . . 61
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . . . . . . 62
SECTION 905. Conformity with Trust Indenture Act. . . . . . . . . . . . . 62
SECTION 906. Reference in Securities to Supplemental Indentures. . . . . 62
ARTICLE TEN
PARTICULAR COVENANTS OF THE COMPANY
SECTION 1001. Payment of Principal, Premium and Interest. . . . . . . . . 62
SECTION 1002. Offices for Notices and Payments. . . . . . . . . . . . . . 63
SECTION 1003. Incurrence of Layered Indebtedness. . . . . . . . . . . . . 63
SECTION 1004. Appointments to Fill Vacancies in Trustee's Office. . . . . 63
SECTION 1005. Provision as to Paying Agent. . . . . . . . . . . . . . . . 63
SECTION 1006. Certificate to Trustee. . . . . . . . . . . . . . . . . . . 65
SECTION 1007. Waiver of Certain Covenants. . . . . . . . . . . . . . . . . 65
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . . . . 65
SECTION 1102. Election to Redeem; Notice to Trustee. . . . . . . . . . . . 65
SECTION 1103. Selection by Trustee of Securities to be Redeemed. . . . . . 66
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . . . . . . 66
SECTION 1105. Deposit of Redemption Price. . . . . . . . . . . . . . . . . 67
SECTION 1106. Securities Payable on Redemption Date. . . . . . . . . . . . 67
SECTION 1107. Securities Redeemed in Part. . . . . . . . . . . . . . . . . 68
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. . . . . . . . . . . . . . . . . . 68
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities. . . . 68
SECTION 1203. Redemption of Securities for Sinking Fund. . . . . . . . . . 69
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1301. Liability Solely Corporate. . . . . . . . . . . . . . . . . 69
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ARTICLE FOURTEEN
DEFEASANCE
SECTION 1401. Applicability of Article. . . . . . . . . . . . . . . . . . 70
SECTION 1402. Defeasance Upon Deposit of Moneys or U.S. Government
Obligations. . . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 1403. Survival of Company's Obligations. . . . . . . . . . . . . . 71
SECTION 1404. Application of Trust Money. . . . . . . . . . . . . . . . . 71
SECTION 1405. Repayment to Company. . . . . . . . . . . . . . . . . . . . 71
SECTION 1406. Reinstatement. . . . . . . . . . . . . . . . . . . . . . . . 72
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. Agreement of Subordination. . . . . . . . . . . . . . . . . 72
SECTION 1502. Payments to Securityholders. . . . . . . . . . . . . . . . 72
SECTION 1503. Subrogation of Securities. . . . . . . . . . . . . . . . . 74
SECTION 1504. Authorization by Securityholders. . . . . . . . . . . . . . 75
SECTION 1505. Notice to Trustee. . . . . . . . . . . . . . . . . . . . . 75
SECTION 1506. Trustee's Relation to Senior Debt. . . . . . . . . . . . . . 76
SECTION 1507. No Impairment of Subordination. . . . . . . . . . . . . . . 77
SECTION 1508. Acceleration of Payment of Securities. . . . . . . . . . . . 77
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 1601. Provisions Binding on Company's Successors. . . . . . . . . 77
SECTION 1602. Official Acts by Successor. . . . . . . . . . . . . . . . . 78
SECTION 1603. Addresses for Notices, etc. . . . . . . . . . . . . . . . . 78
SECTION 1604. Evidence of Compliance with Conditions Precedent;
Certificates to Trustee. . . . . . . . . . . . . . . . . . 78
SECTION 1605. Third Party Beneficiaries . . . . . . . . . . . . . . . . . 78
SECTION 1606. Execution in Counterparts. . . . . . . . . . . . . . . . . 79
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INDENTURE, dated as of ________________ between Oryx Energy Company, a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, a New York
banking corporation, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of
Securities of any series, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
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Certain terms, used principally in Articles Six and Ten are defined in
those Articles.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" has the meaning specified in Section 614.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee. As used in this Indenture,
reference to action taken pursuant to a Board Resolution shall include all
action taken by an officer of the Company which has been duly authorized by the
Board of Directors to take such action.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law to close.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or, if
at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"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" or "Company Order" means 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 attested by its Treasurer, an Assistant Treasurer, its
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which at any particular time its corporate trust business shall
be administered and which at the date of this Indenture is located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
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"Corporation" includes corporations, associations, companies and
business trusts.
"Defaulted Interest" has the meaning specified in Section 307.
"Depository" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Global
Securities, the Person designated as Depository by the Company pursuant to
Section 301.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time of payment is legal tender for the
payment of public and private debts.
"Event of Default" has the meaning specified in Section 501.
"Global Security" means a Security evidencing all or part of a series of
Securities, issued to the Depository for such series or its nominee, and
registered in the name of such Depository.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, repayment at the Option of
the Holder or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or any Vice President and by the Comptroller, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of
the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, and who shall be satisfactory to the
Trustee.
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"Original Issue Discount Security" means any Security which provides for
an amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Oryx U.K. Energy" means Oryx U.K. Energy Company, a Delaware
corporation and wholly owned subsidiary of the Company.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section
306 or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such Securities
and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor. In
determining whether the Holders of the requisite principal amount of
Outstanding Securities have performed any Act hereunder, the principal amount
of an Original Issue Discount Security that shall be deemed to be Outstanding
for such purpose shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502.
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"Partnership" means Sun Energy Partners, L.P., a Delaware limited
partnership.
"Paying Agent" means any person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, estate, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified by
Section 301.
"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 306 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", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"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 301.
"Representative" means, with respect to any Senior Debt, the indenture
trustee or other trustee, agent or other representative(s), if any, of holders
of such Senior Debt.
"Responsible Officer", when used with respect to the Trustee, means the
Chairman and Vice-Chairman of the Board of Directors, the President, any Vice
President, Secretary, Assistant Secretary, Treasurer, Assistant Treasurer or
any other officer or assistant officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
at the Trustee's Corporate Trust Office because of his knowledge of and
familiarity with the particular subject.
"Restricted Property" means, with respect to the Securities of any
series, any interest owned by the Company or a Subsidiary on the date of
original issuance of the Securities of such series in property situated in the
United States (both onshore and offshore) classified by such owner as
productive of crude oil, natural gas or other petroleum hydrocarbons in paying
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quantities as of the date of original issuance of the Securities of such series
and any shares of capital stock or indebtedness of a Restricted Subsidiary.
"Restricted Subsidiary" means any Subsidiary which owns Restricted
Property.
"Security" has the meaning stated in the first recital of this Indenture
and more particularly means any Security authenticated and delivered under this
Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Debt" will be defined to mean the principal of, premium, if any,
interest on, and any other payment due pursuant to any of the following,
whether outstanding at the date of execution of the Indenture or thereafter
incurred, created or assumed: (a) all indebtedness of the Company for money
borrowed (including any indebtedness secured by a mortgage or other lien which
is (i) given to secure all or part of the purchase price of property subject
thereto, whether given to the vendor of such property or to another or (ii)
existing on property at the time of acquisition thereof) and indebtedness of
the Company evidenced by notes, debentures, bonds or other securities sold by
the Company for money; (b) all lease obligations of the Company which are
capitalized on the books of the Company in accordance with generally accepted
accounting principles; (c) all indebtedness of others of the kinds described in
the preceding clause (a) and all lease obligations of others of the kind
described in the preceding clause (b) assumed by or guaranteed in any manner by
the Company or in effect guaranteed by the Company through an agreement to
purchase, contingent or otherwise; (d) all obligations of the Company with
respect to letters of credit issued in connection with indebtedness of others
of the kind described in the preceding clause (a) or leased obligations of the
kind described in the preceding clause (b); and (e) all renewals, extensions or
refundings of indebtedness of the kinds described in either of the preceding
clauses (a) and (c), all renewals or extensions of lease obligations of the
kinds described in either of the preceding clauses (b) and (c) and all renewals
or extensions of obligations with respect to letters of credit of the kind
described in the preceding clause (d); unless, in the case of any particular
indebtedness, lease obligation, renewal, extension, refunding or obligations
with respect to letters of credit, the instrument or lease creating or
evidencing the same or the assumption or guarantee of the same expressly
provides that such indebtedness, lease, obligation, renewal, extension or
refunding is not superior in right of payment to or is pari passu with the
Securities. Senior Debt with respect to the Securities shall not include any
obligations on account of the Company's 7 1/2% Convertible Subordinated
Debentures Due 2014 or the Company's Subordinated Debt Securities as to which
the Securities are "Senior Debt" (as defined in the indenture pursuant to which
the Company's 7 1/2% Convertible Subordinated Debentures Due 2014 have been
issued and the indenture pursuant to which the Company's Subordinated Debt
Securities have been issued, respectively).
"SOLP" means Sun Operating Limited Partnership, a Delaware limited
partnership.
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"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Stockholders' Equity" means the aggregate of (however designated)
capital, capital stock, capital surplus, capital in excess of par value of
stock, earned surplus and net income retained for use in the business, after
deducting the cost of the shares of stock the Company held in its treasury.
"Subsidiary" means any Corporation, partnership or other entity in which
the Company directly or indirectly (i) owns or controls a majority of the
outstanding voting securities having by the terms thereof ordinary voting power
to elect a majority of the board of directors (or other body fulfilling a
substantially similar function) of such entity (irrespective of whether or not
at the time any other class or classes of such voting securities shall have or
might have voting power by reason of the happening of any contingency) or (ii)
in the case of an entity which does not have a board of directors (or other
body fulfilling a substantially similar function) has the authority to control
the policies of such entity (including any partnership as to which the Company
or a Subsidiary is a managing general partner).
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter, "Trustee" shall
mean such successor Trustee who is then a Trustee hereunder, and if at any time
there is more than one such Person, "Trustee" as used with respect to the
Securities of any series shall mean the Trustee with respect to Securities of
that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
and as in force at the date as of which this instrument was executed, except as
provided in Section 904.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is
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specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such condition or covenant and the definitions
herein relating thereto;
(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 each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
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SECTION 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be conclusively proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect to anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to sign any instrument
evidencing or embodying an Act of the Holders. If a record date is fixed, those
persons who were Holders at such record date (or their duly appointed agents),
and only those persons, shall be entitled to sign any such instrument
evidencing or embodying an Act of Holders or to revoke any such instrument
previously signed, whether or not such persons continue to be Holders after
such record date. No such instrument shall be valid or effective for more than
90 days after such record date.
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SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for
the giving of such notice. In any case where notice to Holders is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder shall affect the sufficiency of such notice
with respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included in this Indenture by any of Sections 310 to 317,
inclusive, of the Trust Indenture Act, such required provision shall control.
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SECTION 108. Effect of Headings and Table of Contents.
The table of contents and the titles 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.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
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.
SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any person, other than the parties hereto, any paying agent, any
Security registrar and their successors hereunder, the holders of Securities
and the holders of Senior Debt, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 112. Governing Law.
THIS INDENTURE AND EACH SECURITY SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER THE LAWS OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF NEW YORK.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue (or the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be, if such payment is made or duly provided for on such next succeeding
Business Day.
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SECTION 114. No Security Interest Created.
Nothing in this Indenture or in the Securities, expressed or implied,
shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in
effect, in any jurisdiction where property of the Company or its Subsidiaries
is located.
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification 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. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
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.
SECTION 202. Form of Face of Security.
(If the Security is an Original Issue Discount Security, insert -- FOR
PURPOSES ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ INTERNAL REVENUE CODE OF 1986,
THE ISSUE DATE IS , 19 , THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS
$____________ PER $____________ OF PRINCIPAL, THE YIELD TO MATURITY IS
%, AND (THERE WAS NO INITIAL SHORT ACCRUAL PERIOD) (THE AMOUNT OF ORIGINAL
ISSUE DISCOUNT ALLOCATED TO THE INITIAL SHORT ACCRUAL PERIOD FROM
, 19 TO , 19 IS $____________ PER $____________ PRINCIPAL AND THE
METHOD WAS USED TO DETERMINE THIS AMOUNT).)
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ORYX ENERGY COMPANY
No. ___________ $____________________
ORYX ENERGY COMPANY, a corporation duly organized and existing under the
laws of Delaware (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to , or registered
assigns, the principal sum of DOLLARS on
(If the Security is to bear interest prior to Maturity, insert --, and
to pay interest thereon from or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on and
in each year, commencing , at the rate of % per
annum, until the principal hereof is paid or made available for payment (If
applicable insert --, and (to the extent that the payment of such interest
shall be legally enforceable) at the rate of % per annum on any overdue
principal and premium and on any overdue installment of interest). The interest
so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the _______ or _______ (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name
this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders
of Securities of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in said Indenture).
(If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of % per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of
such default in payment to the date payment of such principal has been made or
duly provided for. Interest on any overdue principal shall be payable on
demand. Any such interest on any overdue principal that is not so paid on
demand shall bear interest at the rate of % per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such demand for payment to the date payment of such interest
has been made or duly provided for, and such interest shall also be payable on
demand.)
Payment of the principal of (and premium, if any) and (if applicable,
insert -- any such) interest on this Security will be made at the office or
agency of the Company maintained for that purpose in , or at such other
locations as the Company may from time to time designate, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts (if applicable, insert --;
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provided, however, that at the option of the Company, payment of interest may
be made by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register.)
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.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed by the manual or facsimile signature of its authorized officers under
its corporate seal.
Dated:
ORYX ENERGY COMPANY
By______________________________
Attest:
___________________________
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SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or
more series under an Indenture, dated as of __________ __, 1996 (herein called
the "Indenture"), between the Company and IBJ ▇▇▇▇▇▇▇▇ Bank & Trust Company, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof, limited in aggregate principal
amount to $_____________.
The indebtedness evidenced by this Security is, to the extent and in the
manner provided in the Indenture, expressly subordinate and subject in right of
payment to the prior payment in full of all Senior Debt of the Company as
defined in the Indenture, whether outstanding at the date of the Indenture or
thereafter incurred, and this Security is issued subject to the provisions of
the Indenture with respect to such subordination. Each holder of this
Security, by accepting the same, agrees to and shall be bound by such
provisions and authorizes the Trustee on his behalf to take such action as may
be necessary or appropriate to effectuate the subordination so provided and
appoints the Trustee his attorney in fact for such purpose.
(If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days' notice by mail, (if applicable, insert -
- (1) on in any year commencing with the year and ending
with the year through operation of the sinking fund for this series at
a Redemption Price equal to 100% of the principal amount, and (2)) at any time
(on or after , 19 ), as a whole or in part, at the election of the
Company, (if applicable insert -- at the following Redemption Prices (expressed
as percentages of the principal amount): If redeemed (on or before (date)
, %, and if redeemed) during the 12-month period beginning
of the years indicated.
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
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and thereafter) at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption (if applicable, insert -- (whether
through operation of the sinking fund or otherwise)) with accrued interest to
the Redemption Date, but interest installments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Regular Record Dates, all as provided in the
Indenture.)
(If applicable, insert -- The Securities of this series are subject to
redemption upon not less thin 30 days' notice by mail, (1) on in any
year commencing with the year and ending with the year through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages of
the principal amount) set forth in the table below, and (2) at any time (on or
after ), as a whole or in part, at the election of the Company, at
the Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in
the table below: If redeemed during the 12-month period beginning of
the years indicated.
Redemption Price
For Redemption Redemption Price For
Through Operation Redemption Otherwise
of the Than Through Operation
Year Sinking Fund of the Sinking Fund
---- ----------------- ----------------------
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates referred to on the face hereof, all as provided in the
Indenture.)
(Notwithstanding the foregoing, the Company may not, prior to redeem any
Securities of this series as contemplated by (Clause (2) of) the preceding
paragraph as a part of, or in anticipation of, any refunding operation by the
application, directly or
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24
indirectly, of moneys borrowed having an interest cost to the Company
(calculated in accordance with generally accepted accounting practice) of less
than % per annum).
(The sinking fund for this series provides for the redemption on in each
year beginning with the year and ending with the year of (not
less than) $____________ ("mandatory sinking fund") and not more than
$____________ aggregate principal amount of Securities of this series.
(Securities of this series acquired or redeemed by the Company otherwise than
through (mandatory) sinking fund payments may be credited against subsequent
(mandatory) sinking fund payments otherwise required to be made in the inverse
order in which they become due.)
In the event of redemption of this Security in part only, a new Security
or Securities of this series for the unredeemed portion hereof will be issued
in the name of the Holder hereof upon the cancellation hereof.
(If applicable, insert - Except as described in the following paragraph,
the Securities are not redeemable by the Company prior to maturity pursuant to
any optional or mandatory sinking fund provisions.)
(If applicable, insert -- The provisions of Article Fourteen of the
Indenture relating to defeasance shall apply to the Securities of this series,
which provisions shall for all purposes have the same effect as if set forth at
this place.)
(If the Security is not an Original Issue Discount Security. -- If an
Event of Default with respect to Securities of this series shall occur and be
continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.)
(If the Security is an Original Issue Discount Security. -- If an Event
of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each
case to the extent that the payment of such interest shall be legally
enforceable), all of the Company's obligations in respect of the payment of the
principal of and interest, if any, on the Securities of this series shall
terminate.)
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of not less than 66 2/3% in principal amount of the
Securities at the time Outstanding of each series to be affected. The Indenture
also contains provisions permitting the Holders of specified percentages in
principal amount of the
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25
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any)
and interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing and thereupon one or more new Securities of
this series, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $____________ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a different
authorized denomination (If applicable insert -- and of the same Maturity), as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for
all purposes, whether or not this Security is overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
The Securities are subordinated to Senior Debt. To the extent provided
in the Indenture, Senior Debt must be paid before the Securities may be paid.
The Company agrees, and each Holder by accepting a security agrees, to the
subordination provisions contained in the Indenture and authorizes the Trustee
to give it effect and appoints the Trustee as attorney-in-fact for such
purpose.
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26
No recourse shall be had for the payment of the principal of (or
premium, if any), or the interest on, this Security, or for any claim based
hereon or on the Indenture or any indenture supplemental thereto, against any
incorporator, or against any stockholder, director or officer, as such, past,
present or future, of the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability, whether at common law, in equity, by any
constitution, statute or otherwise, of incorporators, stockholders, directors
or officers being released by every owner hereof by the acceptance of this
Security and as part of the consideration for the issue hereof, and being
likewise released by the terms of the Indenture; provided however, that nothing
herein or in the Indenture contained shall be taken to prevent recourse to and
the enforcement of the liability, if any, of any stockholder or subscriber to
capital stock of the Company upon or in respect of shares of capital stock not
fully paid.
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27
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and
transfer this Security to
(Insert assignee's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint _____________________________________________ agent to
transfer this Security on the books of the Company. The agent may substitute
another to act for him.
--------------------------------------------------------------------------------
Date:
-----------
Dated: Your Signature:
--------------------------------------------
(sign exactly as name appears on the
other side of this Security)
Signature Guarantee:
-----------------------------------------------------------
(Signature must be guaranteed by a financial institution
that is a member of the Securities Transfer Agent
Medallion Program ("STAMP"), the Stock Exchange Medallion
Program ("SEMP"), the New York Stock Exchange, Inc.
Medallion Signature Program ("MSP") or such other
signature guarantee program as may be determined by the
Security Registrar in addition to, or in substitution for,
STAMP, SEMP or MSP, all in accordance with the Securities
Exchange Act of 1934, as amended.)
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SECTION 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY,
as Trustee
By:
--------------------------------
Authorized Signatory
SECTION 205. Securities Issuable in Global Form. If Securities of or within a
series are issuable in global form, as specified as contemplated by Section
301, then, notwithstanding clause (8) of Section 301 and the provisions of
Section 302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be
increased or decreased to reflect exchanges. Any endorsement of a Security in
global form to reflect the amount, or any increase or decrease in the amount,
of Outstanding Securities represented thereby shall be made by the Trustee in
such manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or 304. Subject to the provisions of Section 303 and,
if applicable, Section 304, the Trustee shall deliver and redeliver any
Security in permanent global form in the manner and upon instructions given by
the Person or Persons specified therein or in the applicable Company Order. If
a Company Order pursuant to Section 303 or 304 has been, or simultaneously is,
delivered, any instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in writing but
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
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29
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a
permanent global Security in bearer form, Euroclear or CEDEL.
Any Global Security issued hereunder, in addition to the provisions
contained in Sections 202 and 203 hereof, shall bear a legend in substantially
the following form:
"This Security is a Global 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 may not be transferred except as a whole by the
Depository to a nominee of the Depository or by a nominee of the
Depository to the Depository or another nominee of the Depository."
Unless otherwise provided as contemplated by Section 301 hereof with
respect to any series of Securities, any Global Security shall provide, in
addition to the provisions set forth in Sections 202 and 203 hereof and the
preceding paragraph, that the Depository will not sell, assign, transfer or
otherwise convey any beneficial interest in such Global Security unless such
beneficial interest is in an amount equal to an authorized denomination for
Securities of such series and that the Depository, by accepting such Global
Security, agrees to be bound by such provision.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series,
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(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or
1107);
(3) the date or dates on which the principal of the Securities
of the series is payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall be
payable and the Regular Record Date for the interest payable on any
Interest Payment Date;
(5) the Place of Payment of the Securities of the series;
(6) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the period
or periods within which, the price or prices at which and the terms and
conditions upon which Securities of the series shall be redeemed, repaid
or purchased, in whole or in part, pursuant to such obligation;
(8) the denominations of such Securities if other than
denominations of $1,000 and any integral multiple thereof;
(9) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(10) provisions, if any, for the defeasance of Securities of
the series;
(11) the currency or currencies, including composite
currencies, in which payment of the principal of and any premium and
interest on the Securities of the series shall be payable if other than
the currency of the United States, which may be different for principal,
premium, if any, and interest;
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(12) whether the Securities of the series shall be issued in
whole or part in the form of one or more Global Securities and, in such
case, the Depository for such Global Security or Securities, which
Depository shall be, if then required by applicable law or regulation, a
clearing agency registered under the Securities Exchange Act of 1934, as
amended; and
(13) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
Securities of any particular series may be issued at various times. All
Securities of any one series shall be substantially identical except as to
denomination, the terms of redemption, the date on which principal or any
installment of principal is payable, the rate or the method of determining the
rate of interest, and the date from which interest shall accrue, which, as set
forth above, may be determined by the Company from time to time as to
Securities of a series if so provided in or established pursuant to the
authority granted in a Board Resolution or in any such indenture supplemental
hereto, and except as may otherwise be provided in or pursuant to such Board
Resolution and (subject to Section 303) set forth in such Officers'
Certificate, or in any such indenture supplemental hereto. All Securities of
any one series need not be issued at the same time, and unless otherwise
provided, a series may be reopened for issuance of additional Securities of
such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company
and delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
If all of the Securities of any series established by action taken
pursuant to a Board Resolution are not issued at one time, it shall not be
necessary to deliver a record of such action at the time of issuance of each
Security of such series, but an appropriate record of such action shall be
delivered at or prior to the time of issuance of the first Securities of such
series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman, President or one of its Vice Presidents, under its corporate seal
reproduced thereon attested by its Treasurer or one of its Assistant Treasurers
or its Secretary or one of its Assistant Secretaries. The signature of any of
these officers on the Securities may be manual or facsimile.
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32
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 of any series 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 the Company Order shall authenticate and deliver such
Securities. To the extent authorized in a Board Resolution and set forth in an
Officers' Certificate or established in or pursuant to a Board Resolution and
established in one or more supplemental indentures, such Company Order may be
electronically transmitted and may provide instructions as to registration of
holders, principal rates of interest, maturity dates and other matters
contemplated by such Board Resolution and Officers' Certificate or supplemental
indenture. If the form or terms of the Securities of the series have been
established in or pursuant to one or more Board Resolutions as permitted by
Sections 201 and 301, in authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to Section
1001) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to a Board Resolution as permitted by Section 201, that such
form has been established in conformity with the provisions of this
Indenture;
(b) if the terms of such Securities have been established by
or pursuant to a Board Resolution as permitted by Section 301, that such
terms have been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with their terms, entitled to the benefits of this Indenture
subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
The Trustee shall be entitled to receive such other opinions in
connection with the issuance of the Securities of any series as it may
reasonably request.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee. If all the Securities of
any series are not to be issued at one time, it shall not be necessary to
deliver such Opinion
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33
of Counsel at the time of issuance of each Security, but such Opinion of
Counsel, with appropriate modifications, may instead be delivered at or prior
to the time of the first issuance of Securities of such series.
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 herein
executed by the Trustee or by an Authenticating Agent by manual signature, 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.
SECTION 304. Temporary Securities.
Pending the preparation of the definitive Securities of any series, 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
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause
definitive Securities of that series to be prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of
such series upon surrender of the temporary Securities of such series at the
office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively 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 Trustee is
hereby appointed "Security Registrar" for the purpose of registering Securities
and transfers of Securities as herein provided.
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34
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, 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
the same series, of any authorized denominations and of like tenor and
aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations 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 Trustee) 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 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 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange Securities of any particular series and tenor during a period
beginning at the opening of business 15 days before the day of the mailing of a
notice of redemption of Securities of like tenor and of the series of which
such Security is a part, selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, any Global Security shall be exchangeable
pursuant to this Section 305 for Securities registered in the names of Persons
other than the Depository for such Security or its nominee only if (1) such
Depository notifies the Company that it is unwilling or unable to continue as
Depository for such Global Security or if at any time such Depository ceases to
be a clearing agency registered under the Securities Exchange Act of 1934, as
amended, at a time when such Depository is required to be so registered in
order to act as Depository, (2) the Company executes and delivers to the
Trustee a Company Order that such
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Global Security shall be so exchangeable or (3) there shall have occurred and
be continuing an Event of Default or an event which, with the giving of notice
or lapse of time, or both, would constitute an Event of Default with respect to
the Securities. Any Global Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Securities registered in such
names as such depository shall direct.
Notwithstanding any other provision in this Indenture, a Global Security
may not be transferred except as a whole by the Depository with respect to such
Global Security to a nominee of such Depository or by a nominee of such
Depository to such Depository or another nominee of such Depository. Unless
otherwise provided as contemplated by Section 301 hereof with respect to any
series of Securities evidenced in whole or in part by a Global Security, the
Depository may not sell, assign, transfer or otherwise convey any beneficial
interest in a Global Security evidencing all or part of the Securities of such
series unless such beneficial interest is in an amount equal to an authorized
denomination for Securities of such series.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
In case any temporary or definitive Security shall become mutilated or
be destroyed, lost or stolen, the Company in its discretion may execute, and
upon its request the Trustee shall authenticate and deliver, a new Security
bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Security, or in lieu of and in substitution for
the Security, so destroyed, lost or stolen. In every case the applicant for a
substituted Security shall furnish to the Company and to the Trustee such
security or indemnity as may be required by them to save each of them or any
agent of either of them harmless, and in every case of destruction, loss or
theft, the applicant shall also furnish to the Company and to the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
In case any such mutilated, destroyed, lost or stolen Security has
become due and payable, the Company in its discretion may, instead of issuing a
new Security, pay such Security.
The Trustee may authenticate any such Security and deliver the same upon
the written request or authorization of any officer of the Company. Upon the
issuance of any substituted Security, the Company may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith. In case any Security which has
matured or is about to mature shall become mutilated or be destroyed, lost or
stolen, the Company may, instead of issuing a substitute Security, pay or
authorize, the payment of the same (without surrender thereof except in the
case of a mutilated Security) if the applicant for such payment shall furnish
the Company and the Trustee with such security or indemnity as they may require
to save them or any agent of either of them harmless and, in case of
destruction, loss or theft, evidence to the satisfaction of the Company and the
Trustee of the destruction, loss or theft of such Security and of the ownership
thereof.
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Every substituted Security issued pursuant to the provisions of this
Section 306 by virtue of the fact that any Security is destroyed, lost or
stolen shall constitute an additional contractual obligation of the Company,
whether or not the destroyed, lost or stolen Security shall be found at any
time, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of the same series duly
issued hereunder. All Securities shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities and
shall preclude any and all other rights or remedies notwithstanding any law or
statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without
their surrender.
SECTION 307. 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 that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest. Payment
of interest on the Securities of any series that bears interest may be paid by
check mailed to the address of the person entitled thereto as such address
shall appear in the Security Register.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest shall be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series (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 of such series and the date of the
proposed payment, and at the same time the Company shall deposit with
the Trustee an amount of money equal to the aggregate amount proposed to
be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities of
such series at
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his address as it appears in the Security Register, not less than 10
days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having
been so mailed, such Defaulted Interest shall be paid to the Persons in
whose names the Securities of such series (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 (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
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.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name such Security is registered as the owner of such Security
for the purpose of receiving payment of principal of (and premium, if any) and
(subject to Section 307) interest on such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
Notwithstanding the foregoing, with respect to any Global Security,
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 a Depository or impair, as between a
Depository and holders of beneficial interests in any Global Security, the
operation of customary practices governing the exercise of the rights of the
Depository as Holder of such Global Security.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment or against
the requirements of Section 1004(b) shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled
by it. All Securities held by the Trustee pending such cancellation shall be
deemed to be delivered for cancellation for all purposes of this Indenture and
the Securities. The Company may at any time deliver to the Trustee for
cancellation any Securities previously
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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 by this Section, except as
expressly permitted by this Indenture. All cancelled Securities held by the
Trustee shall be disposed of as directed by a Company Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and the Trustee shall use CUSIP numbers in notices of
redemption or exchange as a convenience to holders of Securities; provided that
any such notice shall state that no representation is made as to the
correctness or accuracy of the CUSIP numbers either as printed on the
Securities or as contained in any notice of redemption or exchange and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption or exchange shall not be affected by any
defect in or omission of such numbers. The Company shall promptly notify the
Trustee of any change in the CUSIP numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, upon receipt of a
Company Request and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided
in Section 306 and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1005) have
been delivered to the Trustee for cancellation; or
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(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) 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 (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount of money sufficient to
pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal (and 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;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614, and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and Section
1005(e) shall survive.
SECTION 402. Application of Trust Money.
Subject to the provisions of Article Fifteen and Section 1005(e), all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee.
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ARTICLE FIVE
REMEDIES OF THE TRUSTEE AND SECURITY HOLDERS
ON EVENT OF DEFAULT
SECTION 501. Events of Default.
"Event of Default" wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be
effected by Operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of any installment of interest upon
any Security of that series as and when the same shall become due and
payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of the principal of or premium, if
any, on any Security of that series as and when the same shall become
due and payable either at maturity, upon redemption, by delaration or
otherwise; or
(c) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(d) failure on the part of the Company duly to observe or
perform any other of the covenants or agreements on the part of the
Company in any series of Securities or in this Indenture (other than a
covenant or warranty a default in whose performance or whose breach is
elsewhere included in this Section specifically dealt with or which has
expressly been included in this Indenture solely for the benefit of
series of Securities other than that series) continued for a period of
90 days after the date on which written notice of such failure, by
registered or certified mail, requiring the Company to remedy the same
and stating that such notice is a "Notice of Default" hereunder, shall
have been given to the Company by the Trustee, or to the Company and the
Trustee by the Holders of at least 25% in aggregate principal amount of
Outstanding Securities of that series; provided, however, that such a
default or breach shall not be an Event of Default if it cannot with due
diligence be cured within such 90-day period due to causes beyond the
control of the Company, unless the Company fails to proceed promptly to
cure the same and thereafter prosecute the curing of such default or
breach with diligence and continuity. In the event that such default or
breach cannot be cured within such 90-day period, before the expiration
of such 90-day period the Company shall furnish an Officers' Certificate
to the Trustee to the effect that such default or breach cannot with due
diligence be cured within such 90-day period due to causes beyond the
control of the Company and that the Company has not failed to proceed
promptly to cure the same. Thereafter, from time to time at the request
of the Trustee, the Company shall furnish
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an Officers' Certificate to the effect that the Company is prosecuting
the curing of such default or breach with diligence and continuity; or
(e) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company (including a
default with respect to Securities of any series other than that series)
or under any mortgage, under which there may be issued or by which there
may be secured or evidenced any indebtedness for money borrowed by the
Company (including this Indenture) whether such indebtedness now exists
or shall hereafter be created, which default shall have resulted in such
indebtedness becoming, or being declared, due and payable prior to the
date on which the same would otherwise have become due and payable, if
the amount of such indebtedness which shall have matured or shall have
become accelerated as a result of such default is in excess of
$10,000,000 and such acceleration shall not be rescinded or annulled
within 30 days after written notice thereof shall have been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of the Outstanding Securities of that series specifying
such default and requiring the Company to cause such acceleration to be
rescinded or annulled and stating that such notice is a "Notice of
Default", hereunder; provided, however, that if, prior to a declaration
of acceleration of the maturity of the Securities of that series or the
entry of judgment in favor of the Trustee in a suit pursuant to Section
503, such default under such bond, debenture, note, other evidence of
indebtedness or mortgage shall be remedied or cured by the Company or
waived by the holders of such indebtedness, then the Event of Default
hereunder by reason thereof shall be deemed likewise to have been
thereupon remedied, cured or waived without further action upon the part
of either the Trustee of any of the Holders of Securities; and provided
further that, subject to the provisions of Sections 601 and 602, the
Trustee shall not be charged with knowledge of any such default unless
either (a) a Responsible Officer of the Trustee assigned to its
corporate trust department shall, as such officer, have actual knowledge
of such default or (b) the Trustee shall have received written notice
from the Company, any Holder, or the holder of any such indebtedness or
from the trustee under any such bond, debenture, note, other evidence of
indebtedness or mortgage; or
(f) if the Company, the Partnership, SOLP or Oryx U.K. Energy
shall institute proceedings to be adjudicated a bankrupt or insolvent or
for an order for relief under the Federal Bankruptcy Code, or shall
consent to the filing of a bankruptcy or insolvency proceeding against
it, or shall file a petition or answer or consent seeking relief under
the Federal Bankruptcy Act, the Federal Bankruptcy Code, or Title 11 of
the United States Code, as now constituted or as amended, or any other
applicable Federal or state bankruptcy or other similar law, or shall
consent to the institution of proceedings thereunder or to the filing of
any such petition, or shall consent to the appointment or taking
possession of a receiver or liquidator or trustee or custodian or
assignee in bankruptcy or insolvency of it or of all or a major part of
its property, or shall make an assignment for the benefit of its
creditors, or shall admit in writing its inability to pay
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its debts generally as they become due, or the taking of corporate
action by the Company or Oryx U.K. Energy, or partnership action by the
Partnership or SOLP, in furtherance of any such action; or
(g) the entry of a decree or order by a court having
jurisdiction in the premises for relief in respect of the Company, the
Partnership, SOLP or Oryx U.K. Energy, or adjudging the Company, the
Partnership, SOLP or Oryx U.K. Energy a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company,
the Partnership, SOLP or Oryx U.K. Energy under the Federal Bankruptcy
Act, the Federal Bankruptcy Code, or Title 11 of the United States Code,
as now constituted or as amended or any other applicable Federal or
state bankruptcy or other similar law, and such decree or order shall
have continued undischarged or unstayed for a period of 60 days; or the
entry of a decree or order by a court having jurisdiction in the
premises for the appointment of a receiver or liquidator or trustee or
custodian or assignee in bankruptcy or insolvency of the Company, the
Partnership, SOLP or Oryx U.K. Energy or of all or a major part of the
property of the Company, the Partnership, SOLP or Oryx U.K. Energy or
for the winding up or liquidation of the affairs of any of them and such
decree or order shall have remained in force undischarged or unstayed
for a period of 60 days; or
(h) any other Event of Default provided with respect to
Securities of that series.
Upon receipt by the Trustee of any Notice of Default pursuant to this
Section 501 with respect to Securities of a series all or part of which is
represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join
in such Notice of Default, which record date shall be at the close of business
on the day the Trustee receives such Notice of Default. The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such Notice of Default, whether or not such Holders remain
Holders after such record date; provided, that unless Holders of at least 10%
in principal amount of the Outstanding Securities of such series, or their
proxies, shall have joined in such Notice of Default prior to the day which is
90 days after such record date, such Notice of Default shall automatically and
without further action by any Holder be canceled and of no further effect.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if the
Securities of that series are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
the Securities of that series to be due and payable immediately, by a notice in
writing, by certified or registered
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mail, to the Company (and to the Trustee if given by Holders), and upon any
such declaration such principal amount (or specified amount) shall become
immediately due and payable. Upon payment of such amount, all obligations of
the Company in respect of the payment of principal of the Securities of such
series shall terminate.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article Five provided, the Holders of a majority in principal amount of
the Outstanding Securities of that Series, by written notice to the Company and
the Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series;
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than by
such declaration of acceleration and interest thereon at the rate
or rates prescribed therefor in such Securities;
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities; and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Upon receipt by the Trustee of any written notice declaring such an
acceleration, or rescission and annulment thereof, with respect to Securities
of a series all or part of which is represented by a Global Security, a record
date shall be established for determining Holders of Outstanding Securities of
such series entitled to join in such notice, which record date shall be at the
close of business on the day the Trustee receives such notice. The Holders on
such record date, or their duly designated proxies, and only such Persons,
shall be entitled to join in such notice, whether or not such Holders remain
Holders after such record date; provided, that unless
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such declaration of acceleration, or rescission and annulment, as the case may
be, shall have become effective by virtue of the requisite percentage having
joined in such notice prior to the day which is 90 days after such record date,
such declaration of acceleration, or rescission and annulment, as the case may
be, shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or
a proxy of a Holder, from giving, after expiration of such 90-day period, a new
written notice of declaration of acceleration, or rescission or annulment
thereof, as the case may be, which has been canceled pursuant to the proviso to
the preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 502.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security of a particular series when such interest becomes due and
payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of a particular series at the Maturity
thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities of a particular series, the whole amount then due
and payable on such Securities for principal (and premium, if any) and interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including a reasonable compensation to the Trustee,
its agents, attorneys and counsel, and any expenses or liabilities incurred by
the Trustee hereunder other than through its negligence or bad faith.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
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SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities of a particular series or the property of the Company or of such
other obligor or their creditors, the Trustee (irrespective of whether the
principal of the Securities of such series shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in respect
of the Securities of such series and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation of
the Trustee, its agents and its counsel) and of the Holders allowed in
such judicial proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee 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 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 607 other than any such
compensation, expenses, disbursements or advances which are attributable to the
Trustee's negligence or bad faith.
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 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
of a particular series may be prosecuted and enforced by the Trustee without
the possession of any of the Securities of such series or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall be for the ratable benefit of the Holders of
the Securities of such series in respect of which such judgment has been
recovered.
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SECTION 506. Application of Money Collected.
Any money or property collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money or property on account
of principal (or premium, if any) or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor trustee under Section 607;
SECOND: Subject to the provisions of Article Fifteen, to the
payment of the amounts then due and unpaid for principal of (and
premium, if any) and interest on the Securities of a particular series
in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind,
according to the amounts due and payable on Securities of such series
for principal (and premium, if any) and interest, respectively; and
THIRD: Subject to the provisions of Article Fifteen, to the
payment of the remainder, if any, to whomsoever may be lawfully entitled
thereto, or as a court of competent jurisdiction may direct.
The Trustee may, but shall not be obligated to, fix a record date and
payment date for any payment to Holders under this Section 506.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity satisfactory to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
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(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended, and being expressly covenanted by the Holder
and the Trustee, that no one or more of such Holders shall have any right in
any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other such Holders,
or to obtain or to seek to obtain priority or preference over any other of such
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Accept Principal, Premium, and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of (and premium, if any) and (subject to Section 307)
interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
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SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
of a particular series to exercise any right or remedy accruing upon any Event
of Default shall impair any such right or remedy or constitute a waiver of any
such Event of Default of such series or any other series or any acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee shall have the right to decline to follow any
such direction if the Trustee in good faith shall, by a Responsible
Officer, determine that the proceedings so directed would involve it in
personal liability or be unjustly prejudicial to the Holders not taking
part in such direction, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any written notice directing the time,
method or place of conducting any such proceeding or exercising any such trust
or power, with respect to Securities of a series all or part of which is
represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join
in such notice, which record date shall be at the close of business on the day
the Trustee receives such notice. The Holders on such record date, or their
duly designated proxies, and only such Persons, shall be entitled to join in
such notice. whether or not such Holders remain Holders after such record date;
provided, that unless Holders of a majority in principal amount of the
Outstanding Securities of such series shall have joined in such notice prior to
the day which is 90 days after such record date, such notice shall
automatically and without further action by any Holder be canceled and of no
further effect. Nothing in this paragraph shall prevent a Holder, or a proxy
of a Holder, from giving, after expiration of such 90-day period, a new notice
identical to a notice which has been canceled pursuant to the proviso to the
preceding sentence, in which event a new record date shall be established
pursuant to the provisions of this Section 512.
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SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit other than the Trustee of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities of any series, or to
any suit instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security on or after the
Stated Maturity or Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities
(a) With respect to Securities of any series, except during the
continuance of an Event of Default with respect to the Securities of such
series,
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(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(b) With respect to Securities of any series, in case an Event of
Default with respect to the Securities of such series has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it with respect to Securities
of any series in good faith in accordance with the direction of the
Holders of a majority in principal amount of the Outstanding Securities
of such series, determined as provided in and subject to Section 512,
relating to the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
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(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall transmit by mail to
all Holders of Securities of such series, as their names and addresses appear
in the Security Register, notice of such default hereunder known to the
Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest on any Security of such series or in the
payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders of Securities
of such series; and provided, further, that in the case of any default of the
character specified in Section 501(c) with respect to Securities of such
series, no such notice to Holders shall be given until at least 90 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Except as otherwise provided in Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) the Trustee may consult with counsel 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;
(d) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series pursuant to
this Indenture, unless such Holders shall have offered
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to the Trustee reasonable security or indemnity satisfactory to the
Trustee against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(e) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, coupon or other paper or document, unless
requested in writing to do so by the Holders of not less than a majority
in aggregate principal amount of the Securities of any series; provided,
however; that if the payment within a reasonable time to the Trustee of
the costs, expenses or liabilities likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the Security afforded to it by the
terms of this Indenture, the Trustee may require reasonable indemnity
satisfactory to the Trustee against such costs, expenses or liabilities
as a condition to so proceeding;
(f) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible for
any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(g) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter is to be proved or
established prior to taking, suffering or omitting any action hereunder,
the Trustee (unless other evidence is herein specifically prescribed)
may, in the absence of bad faith on its part, rely upon an Officers'
Certificate.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities of any
series. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of any Securities or the proceeds
thereof.
SECTION 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company or the Trustee, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Company with the
same rights it would had if it were not Trustee, Authenticating Agent, Paying
Agent, Security Registrar or such other agent.
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SECTION 606. Money Held in Trust.
Subject to the provisions of Section 1404, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in trust for
the purposes for which they were received. Money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel not regularly in its employ), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee or any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on the part of the Trustee or any
predecessor Trustee, arising out of or in connection with the acceptance
or administration of the trust or trusts hereunder, including the costs
and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or
duties hereunder.
As security for the performance of the obligations of the Company under
this Section 607, the Trustee shall have a lien prior to the Securities of a
particular series upon all property and funds held or collected by the Trustee
as such, except funds held in trust for the payment of principal of (and
premium, if any) or interest, if any, on such Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 501(e) or (f) occurs, the expenses and
compensation for the services are intended to constitute expenses of
administration under any bankruptcy law.
The Company's obligation to compensate the Trustee and to pay and
reimburse the Trustee for such expenses, disbursements and advances pursuant to
the provisions of this Section 607 shall not be subordinate to the payment of
Senior Debt pursuant to Article Fifteen.
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SECTION 608. Disqualification; Conflicting Interests.
The Trustee shall comply with Section 310(b) of the Trust Indenture Act.
SECTION 609. Corporate Trustee Required; Eligibility.
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, authorized under such
laws to exercise corporate trust powers, having a combined capital and
additional paid-in capital and retained earnings of at least $75,000,000
subject to supervision or examination by Federal or State authority. If such
corporation publishes reports of condition at lease annually, pursuant to law
or to the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and additional paid-in capital
and retained earnings of such corporation shall be deemed to be its combined
capital and additional paid-in capital and retained earnings as set forth in
its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section,
it shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) with
respect to Securities of any series after written request therefore by
the Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
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(3) the Trustee shall become incapable of acting with respect
to Securities of any series or shall be adjudged a bankrupt or insolvent
or a receiver of the Trustee or of its property shall be appointed or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
with respect to the Securities of one or more series, the Company, by a Board
Resolution, shall promptly appoint a successor Trustee or Trustees with respect
to the Securities of that or those series (it being understood that any such
Successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any Series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements
of Section 611, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by the
Company. If no successor Trustee with respect to the Securities of any series
shall have been so appointed by the Company or the Holders and accepted
appointment in the manner required by Section 611, any Holder who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to the Securities of such a series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice by first-class mail, postage prepaid, to all Holders
of Securities of such series as their names and addressees appear in the
Security Register. Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver
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to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trust and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1)
shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such Successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee upon payment of its charges shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article Six.
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SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article Six, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. 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 613. Preferential Collection of Claims Against Company.
If any when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims
against the Company (or any such other obligor).
SECTION 614. Appointment of Authenticating Agent.
As long as any Securities of a series remain Outstanding, upon a Company
Request, there shall be an authenticating agent (the "Authenticating Agent")
appointed, for such period as the Company shall elect, by the Trustee for such
series of Securities to act as its agent on its behalf and subject to its
direction in connection with the authentication and delivery of each series of
Securities for which it is serving as Trustee. Securities of each such series
authenticated by such Authenticating Agent shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by such Trustee. Wherever reference is made in this Indenture to
the authentication and delivery of Securities of any series by the Trustee for
such series or to the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee
for such series by an Authenticating Agent for such series and a certificate of
authentication executed on behalf of such Trustee by such Authenticating Agent
except that only the Trustee may authenticate Securities upon original issuance
and pursuant to Section 306 hereof. Such Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the
United States of America or of any State, authorized under such laws to
exercise corporation trust powers, having a combined capital and surplus of at
least $10,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
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Any corporation into which any Authenticating Agent may be merged or
converted, or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which any Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency
business of any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Securities for which it served as
Authenticating Agent without the execution or filing of any paper or any
further act on the part of the Trustee for such series or such Authenticating
Agent. Any Authenticating Agent may at any time, and if it shall cease to be
eligible shall, resign by giving written notice of resignation to the
applicable Trustee and to the Company.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time any Authenticating Agent shall cease to be eligible in
accordance with the Provisions of this Section with respect to one or more of
all series of Securities, the Trustee for such series shall upon Company
Request appoint a successor Authenticating Agent, and the Company shall provide
notice of such appointment to all Holders of the Securities of such series in
the manner and to the extent provided in Section 106. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all rights, powers, duties and responsibilities of its predecessor
hereunder with like effect as if originally named as Authenticating Agent
herein. The Trustee for the Securities of such series agrees to pay to the
Authenticating Agent for such series from time to time reasonable compensation
for its services, and the Trustee shall be entitled to be reimbursed for such
payment, subject to the provisions of Section 607. The Authenticating Agent for
the Securities of any series shall have no responsibility or liability for any
action taken by it as such without negligence or misconduct on its part at the
direction of the Trustee for such series.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternative
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture:
Dated:
By: IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY,
as Trustee
By: ,
--------------------------------
As Authenticating Agent
By: ,
--------------------------------
Authorized Signatory
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ARTICLE SEVEN
HOLDERS' LIST AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee with
respect to Securities of each series
(1) semi-annually, not more than 15 days after the Regular
Record Date for the payment of interest in respect of the Securities of
such series, and on dates to be determined pursuant to Section 301 with
respect to Securities of any series which do not bear interest, a list,
in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of such Series as of a date not more than 15
days prior to the time such information is furnished, and
(2) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished;
provided that so long as the Trustee is the Security Registrar, the Company
will not be required to furnish such list.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) If three or more Holders (herein referred to as ("applicants") apply
in writing to the Trustee, and furnish to the Trustee reasonable proof that
each such applicant has owned a Security for a period of at least six months
preceding the date of such application, and such application states that the
applicants desire to communicate with other Holders with respect to their
rights under this indenture or under the Securities and is accompanied by a
copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within five business days after the
receipt of such application, at its election, either
(i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of
Holders whose names and addresses appear in the information preserved at
the time by the Trustee in
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accordance with Section 702(a), and as to the approximate cost of
mailing to such Holders the form of proxy or other communication, if
any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder whose name and address appear in the information preserved
at the time by the Trustee in accordance with Section 702(a) a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be
mailed and of payment, or provision for the payment, of the reasonable expenses
of mailing, unless within five days after such tender the Trustee shall mail to
such applicants and file with the Commission, together with a copy of the
material to be mailed, a written statement to the effect that, in the opinion
of the Trustee, such mailing would be contrary to the best interest of the
Holders or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after
the entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for bearing, that all the objections
so sustained have been met and shall enter an order so declaring, the Trustee
shall mail copies of such material to all such Holders with reasonable
promptness after the entry of such order and the renewal of such tender;
otherwise the Trustee shall be relieved of any obligation or duty to such
applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
the disclosure of any such information as to the names and addresses of the
holders in accordance with Section 702(b), regardless of the source from which
such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 702(b).
SECTION 703. Reports by Trustee.
(a) Within 60 days after September 15 of each year commencing with the
year 1998, the Trustee shall transmit by mail to all Holders of Securities of
any series such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act at the time
and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities of such series are listed, with the Commission and with the Company.
The Company will notify the Trustee when any Securities are listed on any stock
exchange.
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SECTION 704. Reports by the Company.
The Company shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as ▇▇▇ be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant to Trust Indenture Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALE
SECTION 801. Company May Consolidate, Etc., On Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other
corporation or corporations (whether or not affiliated with the Company), or
successive consolidations or mergers in which the Company or its successor or
successors shall be a party or parties, or shall prevent any sale or conveyance
of all or substantially all the property of the Company to any other
corporation (whether or not affiliated with the Company) authorized to acquire
and operate the same: provided, however, and the Company hereby covenants and
agrees, that upon any such consolidation, merger, sale or conveyance of or by
the Company, other than a consolidation or merger in which the Company is the
continuing corporation, the due and punctual payment of the principal of, and
premium, if any, and interest on, all of the Securities, according to their
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Indenture to be performed by the Company,
shall be expressly assumed, by supplemental indenture satisfactory in form to
the Trustee, executed and delivered to the Trustee by the corporation (if other
than the Company) formed by such consolidation, or into which the Company shall
have been merged, or by the corporation which shall have acquired such
property.
SECTION 802. Successor Corporation to be Substituted.
In case of any consolidation, merger, sale or conveyance of or by the
Company referred to in Section 801 and upon the assumption by the successor
corporation, by supplemental indenture, executed and delivered to the Trustee
and satisfactory in form to the Trustee, of the due and punctual payment of the
principal of and premium, if any, and interest on all of the Securities and the
due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Company, such successor corporation shall
succeed to and be substituted for the Company, with the same effect as if it
had been named herein as the party
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of the first part, and in the event of any such sale or conveyance, the Company
(which term shall for this purpose mean the corporation named as the "Company"
in the first paragraph of this Indenture or any successor corporation which
shall theretofore become such in the manner described in Section 801) shall be
discharged from all obligations and covenants under this Indenture and the
Securities and may be dissolved and liquidated. Such successor corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company any or all of the Securities issuable hereunder which
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor corporation instead of the
Company and subject to all the terms, conditions and limitations in this
Indenture prescribed, the Trustee shall authenticate and shall deliver any
Securities which previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Securities
which such successor corporation thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Securities so issued shall
in all respects have the same legal rank and benefit under this Indenture as
the Securities theretofore or thereafter issued in accordance with the terms of
this Indenture as though all of such Securities had been issued at the date of
the execution hereof.
In case of any such consolidation, merger, sale or conveyance such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. Opinion of Counsel and Officers' Certificate to be Given Trustee.
The Trustee, subject to Sections 601 and 602, shall receive an Opinion
of Counsel and Officers Certificate as conclusive evidence that any such
consolidation, merger, sale or conveyance and any such assumption complies with
the provisions of this Article.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes.
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(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities, or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities, stating
that such covenants are expressly being included solely for the benefit
of such series) or to surrender any right or power herein conferred upon
the Company; or
(3) to add any additional Events of Default; or
(4) to add to, change or eliminate any of the provisions of
this Indenture, in respect of one or more series of Securities, provided
that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the
benefit of such provision; or
(5) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(6) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(7) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action shall not
adversely affect the interests of the Holders of Securities of any
series in any material respect; or
(8) to add to, change or eliminate any of the provisions of
Article Fifteen in respect of one or more series of Securities,
including Outstanding Securities, provided that any such addition,
change, or elimination shall not adversely affect the interests of
Outstanding Securities of any series in any material respect;
(9) subject to Article Fifteen, to convey, transfer, assign,
mortgage or pledge to the Trustee as security for the Securities, any
property or assets; or
(10) to provide for uncertificated Securities in addition to or
in place of Certificated Securities.
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SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section or Section
513 or 1007 except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, provided, however, that this clause shall not be deemed to
require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section or
the deletion of this proviso, in accordance with the requirements of
Sections 611(b) and 901(7); or
(4) modify the provisions of this Indenture with respect to
the subordination of the Securities in a manner adverse to the Holders
of the Securities.
(5) make any change in Section 508 or in the foregoing
amendment and waiver provisions, or modify the percentage mentioned in
Section 513.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series or which modifies the rights of the
Holders of Securities of such series with respect to
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such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 601) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
In connection with any amendment or supplement authorized pursuant to
this Article, the Trustee may receive, at its request, an Officers' Certificate
to the effect that no Event of Default will result from the execution thereof,
which Officers' Certificate, together with the Opinion of Counsel referred to
in the immediately preceding sentence, will serve as conclusive evidence that
any amendment or supplement executed pursuant to this Article complies with the
applicable provisions of this Indenture.
In the case of any supplemental indenture which establishes the form or
terms of Securities of any series as permitted by Sections 201 or 301, the
Opinion of Counsel shall further state that (a) the terms of such Securities
have been established in conformity with the provisions of this Indenture; (b)
the supplemental indenture and this Indenture as modified thereby each
constitute a valid and legally binding obligation of the Company, enforceable
in accordance with its terms, subject to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting the
enforcement of creditors' rights and to general equity principles; (c) the
Securities when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, entitled to the benefits
of this Indenture, subject to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles and (d) such other matters
as the Trustee may reasonably request.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this
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Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
PARTICULAR COVENANTS OF THE COMPANY
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees that it will duly and punctually pay or
cause to be paid, for the benefit of the Holders of each series of Securities,
the principal of and premium, if any, and interest on Securities of that series
in accordance with the terms of the Securities and this Indenture at the time
and place and in the manner provided in the Securities only to or upon the
written order of the registered holders thereof determined, in the case of
interest payments, as provided in Sections 305 and 307. Each installment of
interest on the Securities may be paid by mailing checks for such interest
payable to or upon the written order of the holders of Securities entitled
thereto.
SECTION 1002. Offices for Notices and Payments.
The Company covenants and agrees that, so long as any of the Securities
remain outstanding, it will maintain in the Borough of Manhattan, The City of
New York, an office or agency where the Securities may be presented for
payment, where the Securities may be presented for registration of transfer or
exchange as in this indenture provided and where notices and demands to or upon
the Company in respect of the Securities or of this Indenture may be served.
The Company will give to the Trustee written notice of the location of such
office or agency and of any change of location thereof. In case the Company
shall fail to maintain any such office or agency or shall fail to give such
notice of the location or of any change in the
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location thereof, presentations and demands may be made and notices may be
served at the principal office of the Trustee.
SECTION 1003. Incurrence of Layered Indebtedness.
The Company will not incur any indebtedness which is subordinated or
junior in right of payment to any Senior Debt unless such indebtedness
constitutes indebtedness which is junior to, or pari passu with, the Securities
in right of payment.
SECTION 1004. Appointments to Fill Vacancies in Trustee's Office.
The Company, whenever necessary to avoid or fill a vacancy in the office
of Trustee, will appoint, in the manner provided in Section 610(a) successor
Trustee, so that there shall at all times be a Trustee hereunder.
SECTION 1005. Provision as to Paying Agent.
(a) If the Company shall appoint a Paying Agent other than the Trustee,
it will cause such Paying Agent to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section 1005;
(l) that it will hold all sums held by it as such Paying Agent
for the payment of the principal of and premium, if any, or interest on
the Securities (whether such sums have been paid to it by the Company or
by any other obligor on the Securities) in trust for the benefit of the
Holders of the Securities
(2) that it will give the Trustee notice of any default by the
Company (or by any other obligor on the Securities) in the making of any
payment of the principal of and premium, if any, or interest on the
Securities when the same shall be due and payable; and
(3) that at any time during the continuance of any such
default, upon the written request of the Trustee, it will forthwith pay
to the Trustee all sums so held in trust by such Paying Agent.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of and premium, if any, or interest on
the Securities, deposit with a Paying Agent a sum sufficient to pay such
principal and premium, if any, or interest so becoming due, such sum to be held
in trust for the benefit of the Holders of the Securities, and (unless such
Paying Agent is the Trustee) the Company will notify the Trustee of its action
or failure so to act.
(b) If the Company shall act as its own paying agent, it will on or
before each due date of the principal of and premium, if any, or interest on
the Securities, set aside, segregate and
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hold in trust for the benefit of the Holders of the Securities a sum sufficient
to pay such principal and premium, if any or interest so becoming due and will
notify the Trustee of any failure to take such action and of any failure by the
Company (or by any other obligor under the Securities) to make any payment of
the principal of and premium, if any, or interest on the Securities when the
same shall become due and payable.
(c) Anything in this Section to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust by it, or any Paying Agent hereunder, as
required by this Section, such sums to be held by the Trustee upon the trusts
herein contained.
(d) Anything in this Section to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section is subject to
Sections 401 and 402.
(e) Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and premium,
if any) or interest on any Security of any series and remaining unclaimed for
two years after such principal (and premium, if any) or interest has become due
and payable shall be paid to the Company on Company Request, or (if then held
by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remained unclaimed and that after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1006. Certificate to Trustee.
The Company will deliver to the Trustee on or before April 30 in each
year (beginning with ____) an Officers' Certificate stating whether or not to
the best knowledge of the Signers thereof the Company is in default in the
performance or Observance of any of the terms and provisions of this Article
Ten and, if the Company shall be in default, specifying all such defaults and
the nature and status thereof of which the signers have knowledge.
SECTION 1007. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Section 801, with respect to the Securities
of any series if before the time for such compliance the Holders of at least 66
2/3% in principal amount of the Outstanding
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Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any
series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the Company
of less than all the Securities of any series, the Company shall, at least 60
days prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee of such Redemption
Date and of the principal amount of Securities of such series to be redeemed.
In the case of any redemption of Securities (i) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture or (ii) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
SECTION 1103. Selection by Trustee of Securities to be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
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The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
If the Securities of any series to be redeemed consist of Securities
having different dates on which the principal is payable or different rates of
interest, or different methods by which interest may be determined or have any
other different tenor or terms, then the Company may, by written notice to the
Trustee, direct that the Securities of such series to be redeemed shall be
selected from among the groups of such Securities having specified tenor or
terms and the Trustee shall thereafter select the particular Securities to be
redeemed in the manner set forth in the preceding paragraph from among the
group of such Securities so specified.
For all purpose of this Indenture, unless the content otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amounts) of the particular Securities to be
redeemed.
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after said
date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the
case.
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Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Any notice of redemption that is mailed in the manner provided in this
Section and Section 106 to the Holders of Securities shall be conclusively
presumed to have been duly given whether or not such Holder receives such
notice.
SECTION 1105. Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1005) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such
at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same
series and of like tenor, of any
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authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the terms
of Securities of any series is herein referred to as a "mandatory sinking fund
payment", and any payment in excess of such minimum amount provided by the
terms of Securities of any series is herein referred to as an "optional sinking
fund payment". If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 1202. Each sinking fund payment shall be applied to the redemption
of Securities of any series as provided for by the terms of Securities of such
series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities or at the election of the Holders pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited.
Such Securities shall be received and credited for such purpose by the Trustee
at the Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall
be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and stating that such Securities have not previously
been so credited
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and will also deliver to the Trustee any Securities to be so delivered. Not
less than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 1103 and cause notice of the redemption thereof to
be given in the name of and at the expense of the Company in the manner
provided in Section 1104. Such notice having been duly given, the redemption of
such Securities shall be made upon the terms and in the manner stated in
Sections 1105, 1106 and 1107.
ARTICLE THIRTEEN
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 1301. Liability Solely Corporate.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on any Securities, or any part thereof; or for
any claim based thereon or otherwise in respect thereof, or of the indebtedness
represented thereby, or upon any obligation, covenant or agreement of this
Indenture, against any incorporator, or against any stockholder, officer or
director, as such, past, present or future, of the Company (or any
incorporator, stockholder, officer or director of any predecessor or successor
corporation), either directly or through the Company (or any such predecessor
or successor corporation), whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise;
it being expressly agreed and understood that this Indenture and all the
Securities are solely corporate obligations, and that no personal liability
whatsoever shall attach to, or be incurred by, any such incorporator,
stockholder, officer or director, past, present or future, of the Company (or
any incorporator, stockholder, officer or director of any such predecessor or
successor corporation), either directly or indirectly through the Company or
any such predecessor or successor corporation, because of the indebtedness
hereby authorized or under or by reason of any of the obligations, covenants,
promises or agreement contained in this Indenture or in any of the Securities
or to be implied here from or therefrom; and that any such personal liability
is hereby expressly waived and released as a condition of, and as part of the
consideration for, the execution of this Indenture and the issue of Securities;
provided, however, that nothing herein or in the Securities contained shall be
taken to prevent recourse to and the enforcement of the liability, if any, of
any stockholder or subscriber to capital stock upon or in respect of the shares
of capital stock not fully paid.
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ARTICLE FOURTEEN
DEFEASANCE
SECTION 1401. Applicability of Article.
If, pursuant to Section 301, provision is made for the defeasance of
Securities of any series, then the provisions of this Article shall be
applicable except as otherwise specified pursuant to Section 301 for Securities
of such series.
SECTION 1402. Defeasance Upon Deposit of Moneys or U.S. Government Obligations.
At the Company's option indicated by notice to the Trustee, either (a)
the Company shall be deemed to have been Discharged (as defined below) from its
obligations with respect to Securities of any series on the 91st day after the
applicable conditions set forth below have been satisfied or (b) the Company
shall cease to be subject to the provisions of Section 301(d) with respect to
Securities of any series at any time after the applicable conditions set forth
below have been satisfied:
(1) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series (i) money in an amount, or (ii)
U.S. Government Obligations (as defined below) which through the payment
of interest and principal in respect thereof in accordance with their
terms will provide, not later than one day before the due date of any
payment, money in an amount, or (iii) a combination of (i) and (ii),
sufficient, in the opinion with respect to (ii) and (iii) of a
nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge each installment of principal (including any mandatory sinking
fund payments) of, and premium, if any, and interest on, the Outstanding
Securities of such series on the dates such installments of interest,
premium or principal are due;
(2) if the Securities of such series are then listed on the
New York Stock Exchange, and if the Company has elected to be deemed
Discharged from its obligations with respect to any series of Securities
pursuant to option (a) above in this paragraph, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the
Company's exercise of its option under this Section would not cause such
Securities to be delisted; and
(3) the Company shall have delivered to the Trustee an Opinion
of Counsel to the effect that the Holders of the Securities of such
series will not recognize income, gain or loss for Federal income tax
purposes as a result of the Company's exercise of its
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option under this Section 1402 and will be subject to Federal income tax
on the same amounts and in the same manner and at the same times as
would have been the case if such option had not been exercised, or
deliver a ruling to that effect received from or published by the
Internal Revenue Service.
(4) The Company shall have delivered to the Trustee an Opinion
of Counsel, subject to certain customary qualifications to the effect
that (a) the funds so deposited will not be subject to any rights of any
other holders of debt of the Company; (b) the funds so deposited will
not be subject to avoidance under applicable bankruptcy laws and (c) the
trust resulting from the deposit does not constitute or is qualified as,
a regulated investment company under the Investment Company Act of 1940.
"Discharged" means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by, and obligations under, the
Securities of such series and to have satisfied all the obligations under this
Indenture relating to the Securities of such series (and the Trustee, upon
Company Request and at the expense of the Company, shall execute proper
instruments acknowledging the same).
"U.S. Government Obligations" means securities that are direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged.
SECTION 1403. Survival of Company's Obligations.
Notwithstanding the satisfaction and discharge of the Indenture under
Sections 1401 or 1402, the Company's obligations in Sections 304, 305, 306,
607, 906 and 1002, however, shall survive until the Securities are no longer
outstanding.
SECTION 1404. Application of Trust Money.
The Trustee shall hold in trust money or U.S. Government Obligations
deposited with it pursuant to Sections 1401 and 1402. 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
and interest on the Securities of the series as to which the Company seeks
termination of its obligations.
SECTION 1405. Repayment to Company.
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 on any Security that remains unclaimed for two years after such
payment is due, unless otherwise provided by law; provided, however, that the
Trustee or such Paying Agent before being required to make any such repayment,
may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day
and of general circulation in the Borough of Manhattan, The City of New York,
notice that such
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money remained unclaimed and that after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
Thereafter, the Holder of such Security shall as an unsecured creditor look
only to the Company for payment thereof.
SECTION 1406. Reinstatement.
If the Trustee is unable to apply any money or U.S. Government
Obligations in accordance with Section 1404 by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture and the Securities shall be revived and
reinstated as though no deposit had occurred pursuant to Section 1404 until
such time as the Trustee is permitted to apply all such money or U.S.
Government Obligations in accordance with Section 1404.
ARTICLE FIFTEEN
SUBORDINATION OF SECURITIES
SECTION 1501. Agreement of Subordination.
The Company covenants and agrees, and each holder of Securities issued
hereunder by his acceptance thereof likewise covenants and agrees, that all
Securities shall be issued subject to the provisions of this Article Fifteen;
and each Person holding any Security, whether upon original issue or upon
transfer or assignment thereof, accepts and agrees to be bound by such
provisions.
The payment of the principal of, premium, if any, and interest on all
Securities issued hereunder shall, to the extent and in the manner hereinafter
set forth, be subordinated and subject in right of payment to the prior payment
in full of all Senior Debt, whether outstanding at the date of this Indenture
or thereafter incurred.
No provision of this Article Fifteen shall prevent the occurrence of any
default or Event of Default hereunder.
SECTION 1502. Payments to Securityholders.
In the event and during the continuation of any default in the payment
of principal, premium, interest or any other payment due on any Senior Debt
continuing beyond the period of grace, if any, specified in the instrument or
lease evidencing such Senior Debt, unless and until such default shall have
been cured or waived or shall have ceased to exist, and in the event that the
maturity of any Senior Debt has been accelerated because of a default, then no
payment shall be made by the Company with respect to the principal (including
redemption and sinking fund payments) of, or premium, if any, or interest on
the Securities, except sinking fund
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payments made by the acquisition of Securities under Section 1202 prior to the
happening of such default and payments made pursuant to this Article Fifteen
hereof from monies deposited with the Trustee pursuant thereto prior to the
happening of such default.
During the continuance of any other event of default with respect to
Senior Debt for which maturity may be accelerated immediately, upon receipt by
the Trustee of written notice from the trustee or other representative for the
holders of such Senior Debt, no payment which would be prohibited if any Senior
Debt has not been paid (as set out in the immediately preceding paragraph) may
be made by or on behalf of the Company upon or in respect of the Securities for
a period commencing on the date of receipt of such notice and ending 90 days
thereafter (unless such period shall be terminated by written notice to the
Trustee from such trustee or other representative or such holders); however, if
the maturity of any such Senior Debt is not accelerated within 90 days
following the due date of payments prevented by such event of default and
notice, the Company may resume payments on the Securities.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee or any holder when such payment is prohibited by the
preceding paragraphs of this Section 1502, such payment shall be held in trust
for the benefit of, and shall be paid over or delivered to, the holders of
Senior Debt or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Debt may have been
issued, as their respective interests may appear, but only to the extent that,
upon notice from the Trustee to the holders of Senior Debt that such prohibited
payment has been made, the holders of the Senior Debt (or their representative
or representatives or a trustee) notify the Trustee of the amounts then due and
owing on the Senior Debt, if any, and only the amounts specified in such notice
to the Trustee shall be paid to the holders of Senior Debt.
Upon any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution-or winding-up or liquidation or reorganization
of the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become due upon all
Senior Debt shall first be paid in full, or payment thereof provided for in
money or money's worth in accordance with its terms, before any payment is made
on account of the principal (and premium, if any) or interest on the Securities
(except payments made pursuant to Article Four hereof from monies deposited
with the Trustee pursuant thereto prior to the happening of such dissolution,
winding-up, liquidation or reorganization); and upon any such dissolution or
winding-up or liquidation or reorganization any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the holders of the Securities or the
Trustee would be entitled, except for the provisions of this Article Fifteen,
shall (except as aforesaid) be paid by the Company or by any receiver, trustee
in bankruptcy, liquidating trustee, agent or other Person making such payment
or distribution, or by the holders of the Securities or by the Trustee under
this Indenture if received by them or it, directly to the holders of Senior
Debt (pro rata to such holders on the basis of the respective amounts of Senior
Debt held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
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indenture pursuant to which any instruments evidencing any Senior Debt may have
been issued, as their respective interests may appear, to the extent necessary
to pay all Senior Debt in full, in money or money's worth, after giving effect
to any concurrent payment or distribution to or for the holders of Senior Debt,
before any payment or distribution is made to the holders of the Securities or
to the Trustee.
In the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received by
the Trustee or the holders of the Securities before all Senior Debt is paid in
full, or provision is made for such payment in money in accordance with its
terms, such payment or distribution shall be held in trust for the benefit of
and shall be paid over or delivered to the holders of Senior Debt or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Debt may have
been issued, as their respective interests may appear, as calculated by the
Company, for application to the payment of all Senior Debt remaining unpaid to
the extent necessary to pay all Senior Debt in full in money in accordance with
its terms, after giving effect to any concurrent payment or distribution to or
for the holders of such Senior Debt.
For purposes of this Article Fifteen, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment, the
payment of which is subordinated at least to the extent provided in this
Article Fifteen with respect to the Securities to the payment of all Senior
Debt which may at the time be outstanding; provided that (i) the Senior Debt is
assumed by the new corporation, if any, resulting from any such reorganization
or readjustment, and (ii) the rights of the holders of the Senior Debt (other
than leases) and of leases which are assumed are not, without the consent of
such holders, altered by such reorganization or readjustment. The consolidation
of the Company with, or the merger of the Company into, another corporation or
the liquidation or dissolution of the Company following the conveyance or
transfer of its property as an entirety, or substantially as an entirety, to
another corporation upon the terms and conditions provided for in Article Eight
hereof shall not be deemed a dissolution, winding-up, liquidation or
reorganization for the purposes of this Section 1502 if such other corporation
shall, as a part of such consolidation, merger, conveyance or transfer, comply
with the conditions stated in Article Eight hereof. Nothing in this Section
1502 shall apply to claims of, or payments to, the Trustee under or pursuant to
Section 607.
SECTION 1503. Subrogation of Securities.
Subject to the payment in full of all Senior Debt, the rights of the
holders of the Securities shall be subrogated to the rights of the holders of
Senior Debt to receive payments or distributions of cash, property or
securities of the Company applicable to the Senior Debt until the principal of
(and premium, if any) and interest on the Securities shall be paid in full;
and, for the purposes of such subrogation, no payments or distributions to the
holders of the Senior Debt of any cash, property or securities to which the
holders of the Securities or the Trustee
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would be entitled except for the provisions of this Article Fifteen, and no
payment over pursuant to the provisions of this Article Fifteen, to or for the
benefit of the holders of Senior Debt by holders of the Securities or the
Trustee, shall, as between the Company, its creditors other than holders of
Senior Debt, and the holders of the Securities, be deemed to be a payment by
the Company to or on account of the Senior Debt. It is understood that the
provisions of this Article Fifteen are and are intended solely for the purpose
of defining the relative rights of the holders of the Securities, on the one
hand, and the holders of the Senior Debt, on the other hand.
Nothing contained in this Article Fifteen or elsewhere in this Indenture
or in the Securities is intended to or shall impair, as between the Company,
its creditors other than the holders of Senior Debt, and the holders of the
Securities, the obligation of the Company, which is absolute and unconditional,
to pay to the holders of the Securities the principal of (and premium, if any)
and interest on the Securities as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the holders of the Securities and creditors of the Company
other than the holders of the Senior Debt, nor shall anything herein or therein
prevent the Trustee or the holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article Fifteen of the holders of
Senior Debt in respect of cash, property or securities of the Company received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company referred to in
this Article Fifteen, the Trustee, subject to the provisions of Section 601,
and the holders of the Securities shall be entitled to rely upon any order or
decree made by any court of competent jurisdiction in which such dissolution,
winding-up, liquidation or reorganization proceedings are pending, or a
certificate of the receiver, trustee in bankruptcy, liquidating trustee, agent
or other Person making such payment or distribution, delivered to the Trustee
or to the holders of the Securities, for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of the Senior
Debt and other indebtedness of the Company, the amount thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article Fifteen.
SECTION 1504. Authorization by Securityholders.
Each holder of a Security by his acceptance thereof authorizes and
directs the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article Fifteen
and appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1505. Notice to Trustee.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company which would prohibit the making
of any payment of monies to or by the Trustee in respect of the Securities
pursuant to the provisions of this Article Fifteen. Notwithstanding the
provisions of this Article Fifteen or any other provision of this Indenture,
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the Trustee shall not be charged with knowledge of the existence of any facts
which would prohibit the making of any payment of monies to or by the Trustee
in respect of the Securities pursuant to the provisions of this Article
Fifteen, unless and until a Responsible Officer of the Trustee shall have
received written notice thereof at the Corporate Trust Office of the Trustee
from the Company or a holder or holders of Senior Debt or from any trustee
therefor; and before the receipt of any such written notice, the Trustee,
subject to the provisions of Section 601, shall be entitled in all respects to
assume that no such facts exist; provided that if on a date not fewer than
three business days prior to the date upon which by the terms hereof any such
monies may become due and payable for any purpose (including, without
limitation, the payment of the principal of (or premium, if any) or interest on
any Security) the Trustee shall not have received, with respect to such monies,
the notice provided for in this Section 1505, then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such monies and to apply the same to the purpose for which
they were received, and shall not be affected by any notice to the contrary
which may be received by it on or after such prior date.
Notwithstanding anything to the contrary hereinbefore set forth, nothing
shall prevent any payment by the Company or the Trustee to the Securityholders
of monies in connection with a redemption of Securities if (i) notice of such
redemption has been given pursuant to Article Eleven or Section 401 hereof
prior to the receipt by the Trustee of written notice as aforesaid, and (ii)
such notice of redemption is given not earlier than 60 days before the
redemption date.
The Trustee, subject to the provisions of Section 601, shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Debt (or a trustee on behalf of such holder)
to establish that such notice has been given by a holder of Senior Debt or a
trustee on behalf of any such holder or holders. In the event that the Trustee
determines in good faith that further evidence is required with respect to the
right of any Person as a holder of Senior Debt to participate in any payment or
distribution pursuant to this Article Fifteen, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as to
the amount of Senior Debt held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article Fifteen, and if such
evidence is not furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 1506. Trustee's Relation to Senior Debt.
The Trustee, in its individual capacity shall be entitled to all the
rights set forth in this Article Fifteen in respect of any Senior Debt at any
time held by it, to the same extent as any other holder of Senior Debt, and
nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article
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Fifteen, and no implied covenants or obligations with respect to the holders of
Senior Debt shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of Senior Debt
and, subject to the provisions of Section 601, the Trustee shall not be liable
to any holder of Senior Debt if it shall pay over or deliver to holders of
Securities, the Company or any other Person money or assets to which any holder
of Senior Debt shall be entitled by virtue of this Article Fifteen or
otherwise.
SECTION 1507. No Impairment of Subordination.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise
be charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the holders of the Securities, without
incurring responsibility to the holders of the Securities and without impairing
or releasing the subordination provided in this Article Fifteen or the
obligations hereunder of the holders of the Securities to the holders of Senior
Debt, do any one or more of the following: (i) change the manner, place or
terms of payment or extend the time of payment of, or renew or alter, Senior
Debt, or otherwise amend or supplement in any manner Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt; (iii) release any Person
liable in any manner for the collection of Senior Debt; and (iv) exercise or
refrain from exercising any rights against the Company and any other Person.
SECTION 1508. Acceleration of Payment of Securities.
If payment of the Securities is accelerated because of an Event of
Default, the Company shall promptly notify holders of Senior Debt of the
acceleration. The Company may not pay the Securities until 30 days after the
acceleration occurs (if any Senior Debt remains outstanding) and thereafter may
pay the Securities only if this Indenture otherwise permits the payment at that
time.
ARTICLE SIXTEEN
MISCELLANEOUS PROVISIONS
SECTION 1601. Provisions Binding on Company's Successors.
All the covenants, stipulations, promises and agreements in this
Indenture contained by the Company shall bind its successors and assigns
whether so expressed or not.
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SECTION 1602. Official Acts by Successor.
Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation that shall at the time be
the lawful sole successor of the Company.
SECTION 1603. Addresses for Notices, etc.
Any notice or demand which by any provision of this Indenture is
required or permitted to be given or served by the Trustee or by the Holders of
Securities on the company may be given or served by being deposited postage
prepaid by registered or certified mail in a post office letter box addressed
(until another address is filed by the Company with the Trustee) to Oryx Energy
Company, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. Attention: Treasurer.
Any notice, direction, request or demand hereunder to or upon the Trustee shall
be deemed to have been sufficiently given or made, for all purposes, if given
or made in writing at the Principal Office of the Trustee, which office is, at
the date as of which this Indenture is dated, located at IBJ ▇▇▇▇▇▇▇▇ Bank &
Trust Company, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
Corporate Trust Administration.
SECTION 1604. Evidence of Compliance with Conditions Precedent; Certificates
to Trustee.
Upon any application or demand by the Company to the Trustee to take any
action under any of the provisions of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered
to the Trustee with respect to compliance with a condition or covenant provided
for in this Indenture shall include (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 statement or opinion contained in such certificate or opinion are
based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
SECTION 1605. Third Party Beneficiaries
Holders of Senior Debt of the Company are third party beneficiaries of,
and any of them (or their Representative) shall have the right to enforce the
provisions of this Indenture that benefit such holders.
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SECTION 1606. Execution in Counterparts.
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
(SEAL) ORYX ENERGY COMPANY
By:
---------------------------------
Name:
Title:
Attest:
By:
-----------------------------
Name:
Title:
IBJ ▇▇▇▇▇▇▇▇ BANK & TRUST COMPANY
(SEAL) As Trustee
By:
---------------------------------
Name:
Title:
Attest:
By:
--------------------------------
Name:
Title: Assistant Secretary
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STATE OF TEXAS )
COUNTY OF DALLAS )ss.:
On the day of , 1996, before me personally came
_______________________, to me known, who, being by me duly sworn, did depose
and say that he is ________________________ ORYX ENERGY COMPANY, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
--------------------------------------
Notary Public, State of Texas
(NOTARIAL SEAL) My Commission Expires
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss.:
On the day of , 1996, before me personally came
____________________ to me known, who, being by me duly sworn, did depose and
say that he is a Vice President of , one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board of
Directors of said corporation, and that he signed his name thereto by like
authority.
------------------------------
Notary Public, State of New York
No.
Qualified in Queens County
Certificate filed in New York County
Commission Expires
(NOTARIAL SEAL)
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