EXHIBIT 4.5
[CONFORMED]
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CONOCOPHILLIPS
as Issuer
CONOCO INC.
and
▇▇▇▇▇▇▇▇ PETROLEUM COMPANY
as Guarantors
and
THE BANK OF NEW YORK
as Trustee
---------------------------------
Indenture
Dated as of October 9, 2002
---------------------------------
Debt Securities
================================================================================
CONOCOPHILLIPS
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE, DATED AS OF OCTOBER 9, 2002
--------------------
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
----------- ---------
Section 310 (a)(1)....................................................................... 7.10
(a)(2)....................................................................... 7.10
(a)(3)....................................................................... Not Applicable
(a)(4)....................................................................... Not Applicable
(a)(5)....................................................................... 7.10
(b).......................................................................... 7.08, 7.10
Section 311 (a).......................................................................... 7.11
(b).......................................................................... 7.11
(c).......................................................................... Not Applicable
Section 312 (a).......................................................................... 2.07
(b).......................................................................... 11.03
(c).......................................................................... 11.03
Section 313 (a).......................................................................... 7.06
(b).......................................................................... 7.06
(c).......................................................................... 7.06
(d).......................................................................... 7.06
Section 314 (a).......................................................................... 4.03, 4.04
(b).......................................................................... Not Applicable
(c)(1)....................................................................... 11.04
(c)(2)....................................................................... 11.04
(c)(3)....................................................................... Not Applicable
(d).......................................................................... Not Applicable
(e).......................................................................... 11.05
Section 315 (a).......................................................................... 7.01(b)
(b).......................................................................... 7.05
(c).......................................................................... 7.01(a)
(d).......................................................................... 7.01(c)
(d)(1)....................................................................... 7.01(c)(1)
(d)(2)....................................................................... 7.01(c)(2)
(d)(3)....................................................................... 7.01(c)(3)
(e).......................................................................... 6.11
Section 316 (a)(1)(A).................................................................... 6.05
(a)(1)(B).................................................................... 6.04
(a)(2)....................................................................... Not Applicable
(a)(last sentence)........................................................... 2.11
(b).......................................................................... 6.07
Section 317 (a)(1)....................................................................... 6.08
(a)(2)....................................................................... 6.09
(b).......................................................................... 2.06
Section 318 (a).......................................................................... 11.01
------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
i
TABLE OF CONTENTS
PAGE
----
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE..............................................................1
SECTION 1.01 Definitions............................................................................1
SECTION 1.02 Other Definitions......................................................................7
SECTION 1.03 Incorporation by Reference of Trust Indenture Act......................................8
SECTION 1.04 Rules of Construction..................................................................8
ARTICLE II THE SECURITIES.........................................................................................9
SECTION 2.01 Amount Unlimited; Issuable in Series...................................................9
SECTION 2.02 Denominations.........................................................................11
SECTION 2.03 Forms Generally.......................................................................11
SECTION 2.04 Execution, Authentication, Delivery and Dating........................................12
SECTION 2.05 Registrar and Paying Agent............................................................14
SECTION 2.06 Paying Agent to Hold Money in Trust...................................................14
SECTION 2.07 Holder Lists..........................................................................15
SECTION 2.08 Transfer and Exchange.................................................................15
SECTION 2.09 Replacement Securities................................................................16
SECTION 2.10 Outstanding Securities................................................................16
SECTION 2.11 Original Issue Discount, Foreign-Currency Denominated and Treasury Securities.........16
SECTION 2.12 Temporary Securities..................................................................17
SECTION 2.13 Cancellation..........................................................................17
SECTION 2.14 Payments; Defaulted Interest..........................................................17
SECTION 2.15 Persons Deemed Owners.................................................................18
SECTION 2.16 Computation of Interest...............................................................18
SECTION 2.17 Global Securities; Book-Entry Provisions..............................................18
ARTICLE III REDEMPTION...........................................................................................20
SECTION 3.01 Applicability of Article..............................................................20
SECTION 3.02 Notice to the Trustee.................................................................20
SECTION 3.03 Selection of Securities To Be Redeemed................................................21
SECTION 3.04 Notice of Redemption..................................................................21
SECTION 3.05 Effect of Notice of Redemption........................................................22
SECTION 3.06 Deposit of Redemption Price...........................................................22
SECTION 3.07 Securities Redeemed or Purchased in Part..............................................22
SECTION 3.08 Purchase of Securities................................................................23
SECTION 3.09 Mandatory and Optional Sinking Funds..................................................23
SECTION 3.10 Satisfaction of Sinking Fund Payments with Securities.................................23
SECTION 3.11 Redemption of Securities for Sinking Fund.............................................23
ARTICLE IV COVENANTS.............................................................................................24
SECTION 4.01 Payment of Securities.................................................................24
SECTION 4.02 Maintenance of Office or Agency.......................................................25
ii
SECTION 4.03 SEC Reports; Financial Statements.....................................................25
SECTION 4.04 Compliance Certificate................................................................26
SECTION 4.05 Corporate Existence...................................................................26
SECTION 4.06 Waiver of Stay, Extension or Usury Laws...............................................26
SECTION 4.07 Additional Amounts....................................................................26
SECTION 4.08 Limitation on Liens...................................................................27
SECTION 4.09 Limitation on Sale/Leaseback Transactions.............................................27
ARTICLE V SUCCESSORS.............................................................................................28
SECTION 5.01 Limitations on Mergers and Consolidations.............................................28
SECTION 5.02 Successor Person Substituted..........................................................29
ARTICLE VI DEFAULTS AND REMEDIES.................................................................................29
SECTION 6.01 Events of Default.....................................................................29
SECTION 6.02 Acceleration..........................................................................31
SECTION 6.03 Other Remedies........................................................................32
SECTION 6.04 Waiver of Defaults....................................................................32
SECTION 6.05 Control by Majority...................................................................32
SECTION 6.06 Limitations on Suits..................................................................33
SECTION 6.07 Rights of Holders to Receive Payment..................................................33
SECTION 6.08 Collection Suit by Trustee............................................................33
SECTION 6.09 Trustee May File Proofs of Claim......................................................34
SECTION 6.10 Priorities............................................................................34
SECTION 6.11 Undertaking for Costs.................................................................35
ARTICLE VII TRUSTEE..............................................................................................35
SECTION 7.01 Duties of Trustee.....................................................................35
SECTION 7.02 Rights of Trustee.....................................................................36
SECTION 7.03 May Hold Securities...................................................................37
SECTION 7.04 Trustee's Disclaimer..................................................................37
SECTION 7.05 Notice of Defaults....................................................................37
SECTION 7.06 Reports by Trustee to Holders.........................................................38
SECTION 7.07 Compensation and Indemnity............................................................38
SECTION 7.08 Replacement of Trustee................................................................39
SECTION 7.09 Successor Trustee by Merger, etc......................................................40
SECTION 7.10 Eligibility; Disqualification.........................................................41
SECTION 7.11 Preferential Collection of Claims Against the Company or a Guarantor..................41
ARTICLE VIII DISCHARGE OF INDENTURE..............................................................................41
SECTION 8.01 Termination of the Company's and the Guarantors' Obligations..........................41
SECTION 8.02 Application of Trust Money............................................................45
SECTION 8.03 Repayment to Company or Guarantor.....................................................45
SECTION 8.04 Reinstatement.........................................................................45
ARTICLE IX SUPPLEMENTAL INDENTURES AND AMENDMENTS................................................................46
SECTION 9.01 Without Consent of Holders............................................................46
SECTION 9.02 With Consent of Holders...............................................................47
iii
SECTION 9.03 Compliance with Trust Indenture Act...................................................49
SECTION 9.04 Revocation and Effect of Consents.....................................................49
SECTION 9.05 Notation on or Exchange of Securities.................................................50
SECTION 9.06 Trustee to Sign Amendments, etc.......................................................50
ARTICLE X GUARANTEE..............................................................................................50
SECTION 10.01 Guarantee.............................................................................50
SECTION 10.02 Proceedings Against Guarantor.........................................................51
SECTION 10.03 Subrogation...........................................................................52
SECTION 10.04 Guarantee for Benefit of Holders......................................................52
ARTICLE XI MISCELLANEOUS.........................................................................................52
SECTION 11.01 Trust Indenture Act Controls..........................................................52
SECTION 11.02 Notices...............................................................................52
SECTION 11.03 Communication by Holders with Other Holders...........................................54
SECTION 11.04 Certificate and Opinion as to Conditions Precedent....................................54
SECTION 11.05 Statements Required in Certificate or Opinion.........................................54
SECTION 11.06 Rules by Trustee and Agents...........................................................55
SECTION 11.07 Legal Holidays........................................................................55
SECTION 11.08 No Recourse Against Others............................................................55
SECTION 11.09 Governing Law.........................................................................55
SECTION 11.10 No Adverse Interpretation of Other Agreements.........................................55
SECTION 11.11 Successors............................................................................55
SECTION 11.12 Severability..........................................................................56
SECTION 11.13 Counterpart Originals.................................................................56
SECTION 11.14 Table of Contents, Headings, etc......................................................56
iv
INDENTURE dated as of October 9, 2002 among ConocoPhillips, a
Delaware corporation (the "Company"), Conoco Inc., a Delaware corporation
formerly incorporated under the name Conoco Energy Company ("Conoco"), ▇▇▇▇▇▇▇▇
Petroleum Company, a Delaware corporation ("▇▇▇▇▇▇▇▇" and, together with Conoco,
the "Guarantors"), and The Bank of New York, a New York banking corporation, as
trustee (the "Trustee").
Each party agrees as follows for the benefit of the other
parties and for the equal and ratable benefit of the Holders of the Company's
unsecured debentures, notes or other evidences of indebtedness (the
"Securities") to be issued from time to time in one or more series as provided
in this Indenture:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"Additional Amounts" means any additional amounts required by
the express terms of a Security or by or pursuant to a Board Resolution, under
circumstances specified therein or pursuant thereto, to be paid by the Company
or any Guarantor, as the case may be, with respect to certain taxes, assessments
or other governmental charges imposed on certain Holders and that are owing to
such Holders.
"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 purposes of this definition,
"control" of a Person shall mean the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling" and
"controlled" shall have meanings correlative to the foregoing.
"Agent" means any Registrar or Paying Agent.
"Attributable Debt," when used with respect to any
Sale/Leaseback Transaction, means, as at the time of determination, the present
value (discounted at the rate set forth or implicit in the terms of the lease
included in such transaction) of the total obligations of the lessee for rental
payments (other than amounts required to be paid on account of taxes,
maintenance, repairs, insurance, assessments, utilities, operating and labor
costs and other items which do not constitute payments for property rights)
during the remaining term of the lease included in such Sale/Leaseback
Transaction (including any period for which such lease has been extended). In
the case of any lease which is terminable by the lessee upon the payment of a
penalty, such net amount shall be the lesser of the net amount determined
assuming termination upon the first date such lease may be terminated (in which
case the net amount shall also include the amount of the penalty, but no rent
shall be considered as required to be paid under such lease subsequent to the
first date upon which it may be so terminated) or the net amount determined
assuming no such termination.
"Bankruptcy Law" means Title 11 of the United States Code or
any similar federal, state or foreign law for the relief of debtors.
1
"Board of Directors," when used with reference to the Company
or a Guarantor, means the Board of Directors of the Company or such Guarantor,
as the case may be, or any committee thereof duly authorized, with respect to
any particular matter, to act by or on behalf of the Board of Directors of the
Company or such Guarantor, as the case may be.
"Board Resolution" means a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company or a Guarantor to have
been duly adopted by the Board of Directors of the Company or such Guarantor, as
the case may be, and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day that is not a Legal Holiday.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person; provided, however, that for purposes
of any provision contained herein which is required by the TIA, "Company" shall
also mean each other obligor (if any), other than a Guarantor, on the Securities
of a series.
"Company Order" and "Company Request" mean, respectively, a
written order or request signed in the name of the Company by two Officers of
the Company and, in the case of a Company Order pursuant to Section 2.01 or
2.04, in the name of each Guarantor by an Officer of such Guarantor, and
delivered to the Trustee.
"Consolidated Adjusted Net Assets" means the total amount of
assets less (1) all current liabilities (excluding the amount of those
liabilities which are by their terms extendable or renewable at the option of
the obligor to a date more than 12 months after the date as of which the amount
is being determined and current maturities of long-term debt) and (2) total
prepaid expenses and deferred charges, all as set forth on the most recent
quarterly balance sheet of the Company and its consolidated subsidiaries and
determined in accordance with GAAP.
"Corporate Trust Office of the Trustee" means the office of
the Trustee located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Administration, and as may be located at such other
address as the Trustee may give notice to the Company and the Guarantors.
"Debt" means all notes, bonds, debentures or other similar
evidences of debt for money borrowed.
"Default" means any event, act or condition that is, or after
notice or the passage of time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities of any
series issuable or issued in whole or in part in global form, the Person
specified pursuant to Section 2.01 hereof as the initial Depositary with respect
to the Securities of such series, until a successor shall have been appointed
and become such pursuant to the applicable provision of this Indenture, and
thereafter "Depositary" shall mean or include such successor.
2
"Dollar" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debt.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and any successor statute.
"Funded Debt" means all Debt (including Debt incurred under
any revolving credit, letter of credit or working capital facility) that matures
by its terms, or that is renewable at the option of any obligor thereon, to a
date more than one year after the date on which such Debt is originally
incurred.
"GAAP" means generally accepted accounting principles in the
United States set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a significant
segment of the accounting profession of the United States, as in effect from
time to time.
"Global Security" means a Security that is issued in global
form in the name of the Depositary with respect thereto or its nominee.
"Government Obligations" means, with respect to a series of
Securities, direct obligations of the government that issues the currency in
which the Securities of the series are payable for the payment of which the full
faith and credit of such government is pledged, or obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of such
government, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by such government.
"Guarantee" shall mean the guarantee of the Company's
obligations under the Securities by a Guarantor as provided in Article X.
"Guarantor" means each Person named as a "Guarantor" in the
first paragraph of this instrument, in each case until a successor to such
Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter "Guarantor" shall mean such successor Person.
"Holder" means a Person in whose name a Security is
registered.
"Indenture" means this Indenture as amended or supplemented
from time to time pursuant to the provisions hereof, and includes the terms of a
particular series of Securities established as contemplated by Section 2.01.
"interest" means, with respect to an Original Issue Discount
Security that by its terms bears interest only after Maturity, interest payable
after Maturity.
"Interest Payment Date," when used with respect to any
Security, shall have the meaning assigned to such term in the Security as
contemplated by Section 2.01.
3
"Issue Date" means, with respect to Securities of a series,
the date on which the Securities of such series are originally issued under this
Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in any of The City of New York, New York; Houston, Texas or
a Place of Payment are authorized or obligated by law, regulation or executive
order to remain closed.
"Lien" means any mortgage, pledge, lien or security interest.
"Maturity" means, with respect to any Security, 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
thereof, or by declaration of acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the President, any
Vice Chairman of the Board, any Vice President, the Chief Financial Officer, the
Treasurer, any Assistant Treasurer, the Controller, the Secretary or any
Assistant Secretary of a Person.
"Officers' Certificate" means a certificate signed by two
Officers of a Person and, in the case of an Officers' Certificate of the Company
pursuant to Section 2.01 or 2.04, by an Officer of each Guarantor.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. Such counsel may be an employee of or
counsel to the Company, the Guarantor or the Trustee.
"Original Issue Discount Security" means any Security that
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 6.02.
"Permitted Liens" means:
(i) Liens existing on the date of first issuance of a series
of Securities;
(ii) Liens on property or assets of, or any shares of stock
of, or other equity interests in, or Debt of, any Person existing at
the time such Person becomes a Subsidiary or a Principal Domestic
Subsidiary or at the time such Person is merged into or consolidated
with the Company or any Subsidiary or at the time of a sale, lease or
other disposition of the properties of a Person (or a division thereof)
as an entirety or substantially as an entirety to the Company or a
Subsidiary;
(iii) Liens on assets (including improvements and accessions
thereto and proceeds thereof) (a) existing at the time of acquisition
thereof, (b) securing all or any portion of the cost of acquiring,
constructing, improving, developing or expanding such assets or (c)
securing Debt incurred prior to, at the time of, or within 24 months
after, the later of the acquisition, the completion of construction,
improvement, development or expansion or the commencement of commercial
operation of such assets, for the purpose (in the case of this clause
(c)) of (x) financing all or any part of the purchase price of such
4
assets or (y) financing all or any part of the cost of construction,
improvement, development or expansion of any such assets;
(iv) Liens on specific assets to secure Debt incurred to
provide funds for all or any part of the cost of exploration, drilling
or development of such assets;
(v) Liens in favor of the Company or any Subsidiary;
(vi) Liens securing industrial development, pollution control
or other revenue bonds issued or guaranteed by the United States of
America, or any State, or any department, agency, instrumentality or
political subdivision of either;
(vii) Liens on personal property, other than shares of stock
or Debt of any Principal Domestic Subsidiary, securing loans maturing
not more than one year from the date of the creation thereof;
(viii) Liens on any Principal Property arising in connection
with the sale of accounts receivable resulting from the sale of oil or
gas at the wellhead;
(ix) statutory liens or landlords', carriers', warehouseman's,
mechanics', suppliers', materialmen's, repairmen's or other like Liens
arising in the ordinary course of business and with respect to amounts
not yet delinquent or being contested in good faith by appropriate
proceedings; and
(x) any extensions, substitutions, replacements or renewals in
whole or in part of a Lien enumerated in clauses (i) through (ix) above
or any Debt secured by such a Lien; provided that (a) such new Lien
shall be limited to all or part of the same property that secured the
original Lien, plus improvements on such property, and (b) the
principal amount of Debt secured by such Lien and not otherwise
authorized by clauses (i) through (ix) above or otherwise permitted
does not materially exceed the principal amount of Debt so secured plus
any premium or fee payable in connection with any such extension,
substitution, replacement or renewal.
"Person" means any individual, corporation, partnership,
limited liability company, joint venture, incorporated or unincorporated
association, joint stock company, trust, unincorporated organization or
government or other agency, instrumentality or political subdivision thereof or
other entity of any kind.
"Place of Payment" means, with respect to the Securities of
any series, the place or places where the principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities of that
series are payable as specified in accordance with Section 2.01 subject to the
provisions of Section 4.02.
"principal" of a Security means the principal of the Security
plus, when appropriate, the premium, if any, on the Security.
"Principal Domestic Subsidiary" means each Guarantor and any
Subsidiary (i) that has substantially all of its assets located in the United
States, (ii) that owns a Principal
5
Property and (iii) in which the Company's direct or indirect capital investment,
together with the outstanding balance of (a) any loans and advances made to such
Subsidiary by the Company or any other Subsidiary and (b) any debt of such
Subsidiary guaranteed by the Company or any other Subsidiary, exceeds
$100,000,000.
"Principal Property" means any oil or gas producing property
located in the United States, onshore or offshore, or any refinery or
manufacturing plant (excluding any transportation or marketing facilities or
assets) located in the United States, in each case owned by the Company or a
Subsidiary, except any oil or gas producing property, refinery or plant that, in
the opinion of the Board of Directors of the Company, is not of material
importance to the total business conducted by the Company and its consolidated
subsidiaries.
"Redemption Date" means, with respect to any Security to be
redeemed, the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price" means, with respect to any Security to be
redeemed, the price at which it is to be redeemed pursuant to this Indenture.
"Responsible Officer" means any officer within the corporate
trust department of the Trustee, including any vice president, assistant vice
president, assistant secretary, assistant treasurer, trust officer or any other
officer of the Trustee who customarily performs 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 because of such person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
"Rule 144A Securities" means Securities of a series designated
pursuant to Section 2.01 as entitled to the benefits of Section 4.03(b).
"Sale/Leaseback Transaction" means any arrangement with any
Person pursuant to which the Company or any Subsidiary leases any Principal
Property that has been or is to be sold or transferred by the Company or such
Subsidiary to such Person, other than (1) temporary leases for a term, including
renewals at the option of the lessee, of not more than three years, (2) leases
between the Company and a Subsidiary or between Subsidiaries, (3) leases of
Principal Property executed by the time of, or within 12 months after the latest
of, the acquisition, the completion of construction or improvement, or the
commencement of commercial operation of the Principal Property, and (4)
arrangements pursuant to any provision of law with an effect similar to the
former Section 168(f)(8) of the Internal Revenue Code of 1954.
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning stated in the preamble of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Custodian" means, with respect to Securities of a
series issued in global form, the Trustee for Securities of such series, as
custodian with respect to the Securities of such series, or any successor entity
thereto.
6
"Stated Maturity" means, when used with respect to any
Security or any installment of principal thereof or interest thereon, 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.
"Subsidiary" means a Person at least a majority of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. For the purposes of this definition, "voting stock" means
stock having voting power for the election of directors, whether at all times or
only so long as no senior class of stock has such voting power by reason of any
contingency.
"TIA" means the Trust Indenture Act of 1939, as amended, as in
effect on the date hereof.
"Trustee" means the Person named as such above until a
successor replaces it in accordance with the applicable provisions of this
Indenture, and thereafter "Trustee" means each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of any series means the Trustee with respect
to Securities of that series.
"United States" means the United States of America (including
the States and the District of Columbia) and its territories and possessions,
which include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands.
"U.S. Government Obligations" means Government Obligations
with respect to Securities payable in Dollars.
SECTION 1.02 Other Definitions.
DEFINED
TERM IN SECTION
---- ----------
"Bankruptcy Custodian"...................................................... 6.01
"Conversion Event".......................................................... 6.01
"covenant defeasance"....................................................... 8.01
"Event of Default".......................................................... 6.01
"Exchange Rate"............................................................. 2.11
"Judgment Currency"......................................................... 6.10
"legal defeasance".......................................................... 8.01
"mandatory sinking fund payment"............................................ 3.09
"optional sinking fund payment"............................................. 3.09
"Paying Agent".............................................................. 2.05
"Registrar"................................................................. 2.05
"Required Currency"......................................................... 6.10
"Successor"................................................................. 5.01
7
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture (and
if the Indenture is not qualified under the TIA at that time, as if it were so
qualified unless otherwise provided). The following TIA terms used in this
Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company, any
Guarantor or any other obligor on the Securities.
All terms used in this Indenture that are defined by the TIA,
defined by a TIA reference to another statute or defined by an SEC rule under
the TIA have the meanings so assigned to them.
SECTION 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
(5) provisions apply to successive events and
transactions; and
(6) all references in this instrument to Articles and
Sections are references to the corresponding Articles
and Sections in and of this instrument.
8
ARTICLE II
THE SECURITIES
SECTION 2.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that 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 of the Company, and
set forth, or determined in the manner provided, in an Officers' Certificate of
the Company or in a Company Order, or established in one or more indentures
supplemental hereto, prior to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from the Securities of all
other series);
(2) if there is to be a limit, the limit upon the aggregate
principal amount of the Securities of the series that may be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities of the series pursuant to
Section 2.08, 2.09, 2.12, 2.17, 3.07 or 9.05 and except for any
Securities which, pursuant to Section 2.04 or 2.17, are deemed never to
have been authenticated and delivered hereunder); provided, however,
that unless otherwise provided in the terms of the series, the
authorized aggregate principal amount of such series may be increased
before or after the issuance of any Securities of the series by a Board
Resolution (or action pursuant to a Board Resolution) to such effect;
(3) whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the
series are to be issuable in permanent global form, as Global
Securities or otherwise, and, if so, whether beneficial owners of
interests in any such Global Security may exchange such interests for
Securities of such series and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in Section 2.17, and the
initial Depositary and Security Custodian, if any, for any Global
Security or Securities of such series;
(4) the manner in which any interest payable on a temporary
Global Security on any Interest Payment Date will be paid if other than
in the manner provided in Section 2.14;
(5) the date or dates on which the principal of and premium
(if any) on the Securities of the series is payable or the method of
determination thereof;
(6) the rate or rates, or the method of determination thereof,
at which the Securities of the series shall bear interest, if any,
whether and under what circumstances Additional Amounts with respect to
such Securities shall be payable, the date or dates from which such
interest shall accrue, the Interest Payment Dates on which such
interest shall be payable and the record date for the interest payable
on any Securities on any
9
Interest Payment Date, or if other than provided herein, the Person to
whom any interest on Securities of the series shall be payable;
(7) the place or places where, subject to the provisions of
Section 4.02, the principal of, premium (if any) and interest on and
any Additional Amounts with respect to the Securities of the series
shall be payable;
(8) the period or periods within which, the price or prices
(whether denominated in cash, securities or otherwise) 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, if the
Company is to have that option, and the manner in which the Company
must exercise any such option, if different from those set forth
herein;
(9) the obligation, if any, of the Company to redeem, purchase
or repay 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 (whether
denominated in cash, securities or otherwise) at which and the terms
and conditions upon which Securities of the series shall be redeemed,
purchased or repaid in whole or in part pursuant to such obligation;
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denomination in which any Securities of that
series shall be issuable;
(11) if other than Dollars, the currency or currencies
(including composite currencies) or the form, including equity
securities, other debt securities (including Securities), warrants or
any other securities or property of the Company, any Guarantor or any
other Person, in which payment of the principal of, premium (if any)
and interest on and any Additional Amounts with respect to the
Securities of the series shall be payable;
(12) if the principal of, premium (if any) or interest on or
any Additional Amounts with respect to the Securities of the series are
to be payable, at the election of the Company or a Holder thereof, in a
currency or currencies (including composite currencies) other than that
in which the Securities are stated to be payable, the currency or
currencies (including composite currencies) in which payment of the
principal of, premium (if any) and interest on and any Additional
Amounts with respect to Securities of such series as to which such
election is made shall be payable, and the periods within which and the
terms and conditions upon which such election is to be made;
(13) if the amount of payments of principal of, premium (if
any) and interest on and any Additional Amounts with respect to the
Securities of the series may be determined with reference to any
commodities, currencies or indices, values, rates or prices or any
other index or formula, the manner in which such amounts shall be
determined;
(14) if other than the entire principal amount thereof, the
portion of the principal amount of Securities of the series that shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 6.02;
10
(15) any additional means of satisfaction and discharge of
this Indenture and any additional conditions or limitations to
discharge with respect to Securities of the series and the related
Guarantees pursuant to Article VIII or any modifications of or
deletions from such conditions or limitations;
(16) any deletions or modifications of or additions to the
Events of Default set forth in Section 6.01 or covenants of the Company
or any Guarantor set forth in Article IV pertaining to the Securities
of the series;
(17) any restrictions or other provisions with respect to the
transfer or exchange of Securities of the series, which may amend,
supplement, modify or supersede those contained in this Article II;
(18) if the Securities of the series are to be convertible
into or exchangeable for capital stock, other debt securities
(including Securities), warrants, other equity securities or any other
securities or property of the Company, any Guarantor or any other
Person, at the option of the Company or the Holder or upon the
occurrence of any condition or event, the terms and conditions for such
conversion or exchange;
(19) whether the Securities of the series are to be entitled
to the benefit of Section 4.03(b) (and accordingly constitute Rule 144A
Securities); and
(20) any other terms of the series (which terms shall not be
prohibited by the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to Section
2.03) set forth, or determined in the manner provided, in the Officers'
Certificate or Company Order referred to above or in any such indenture
supplemental hereto.
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, together with such Board Resolution, shall be set forth in an Officers'
Certificate or 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 or Company Order setting forth the terms of the series.
SECTION 2.02 Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 2.01. In the
absence of any such provisions with respect to the Securities of any series, the
Securities of such series denominated in Dollars shall be issuable in
denominations of $1,000 and any integral multiples thereof.
SECTION 2.03 Forms Generally.
The Securities of each series shall be in fully registered
form and in substantially such form or forms (including temporary or permanent
global form) established by or pursuant to
11
a Board Resolution of the Company or in one or more indentures supplemental
hereto. The Securities may have notations, legends or endorsements required by
law, securities exchange rule, the Company's certificate of incorporation,
bylaws or other similar governing documents, agreements to which the Company is
subject, if any, or usage (provided that any such notation, legend or
endorsement is in a form acceptable to the Company). A copy of the Board
Resolution establishing the form or forms of Securities of any series shall be
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 2.04 for the authentication and delivery of such
Securities.
The definitive Securities of each series 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 thereof.
The Trustee's certificate of authentication shall be in
substantially the following form:
"This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By: _____________________________________
Authorized Signatory".
SECTION 2.04 Execution, Authentication, Delivery and Dating.
Two Officers of the Company shall sign the Securities on
behalf of the Company and, with respect to the Guarantees of the Securities, an
Officer of each Guarantor shall sign the Securities on behalf of such Guarantor,
in each case by manual or facsimile signature.
If an Officer of the Company or a Guarantor whose signature is
on a Security no longer holds that office at the time the Security is
authenticated, the Security shall be valid nevertheless.
A Security shall not be entitled to any benefit under this
Indenture or the related Guarantees or be valid or obligatory for any purpose
until authenticated by the manual signature of an authorized signatory of the
Trustee, which signature shall be conclusive evidence that the Security has been
authenticated under this Indenture. Notwithstanding the foregoing, if any
Security has been authenticated and delivered hereunder but never issued and
sold by the Company, and the Company delivers such Security to the Trustee for
cancellation as provided in Section 2.13, together with a written statement
(which need not comply with Section 11.05 and need not be accompanied by an
Opinion of Counsel) stating that such Security has never been issued and sold by
the Company, for all purposes of this Indenture such Security shall be deemed
never to have been authenticated and delivered hereunder and shall never be
entitled to the benefits of this Indenture or the related Guarantees.
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 and each
12
Guarantor to the Trustee for authentication, and the Trustee shall authenticate
and deliver such Securities for original issue upon a Company Order for the
authentication and delivery of such Securities or pursuant to such procedures
acceptable to the Trustee as may be specified from time to time by Company
Order. Such order shall specify the amount of the Securities to be
authenticated, the date on which the original issue of Securities is to be
authenticated, the name or names of the initial Holder or Holders and any other
terms of the Securities of such series not otherwise determined. If provided for
in such procedures, such Company Order may authorize (1) authentication and
delivery of Securities of such series for original issue from time to time, with
certain terms (including, without limitation, the Maturity dates or dates,
original issue date or dates and interest rate or rates) that differ from
Security to Security and (2) may authorize authentication and delivery pursuant
to oral or electronic instructions from the Company or its duly authorized
agent, which instructions shall be promptly confirmed in writing.
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
Section 2.01, in authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall be entitled to receive (in addition to the Company Order referred
to above and the other documents required by Section 11.04), and (subject to
Section 7.01) shall be fully protected in relying upon:
(a) an Officers' Certificate setting forth the Board
Resolution and, if applicable, an appropriate record of any action
taken pursuant thereto, as contemplated by the last paragraph of
Section 2.01; and
(b) an Opinion of Counsel to the effect that:
(i) the form of such Securities has been established
in conformity with the provisions of this Indenture;
(ii) the terms of such Securities have been
established in conformity with the provisions of this
Indenture; and
(iii) that, 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, such
Securities and the related Guarantees will constitute valid
and binding obligations of the Company and the Guarantors,
respectively, enforceable against the Company and the
Guarantors, respectively, in accordance with their respective
terms, except as the enforceability thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws in effect from
time to time affecting the rights of creditors generally, and
the application of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law).
If all the Securities of any series are not to be issued at
one time, it shall not be necessary to deliver an Officers' Certificate and
Opinion of Counsel at the time of issuance of each such Security, but such
Officers' Certificate and Opinion of Counsel shall be delivered at or before the
time of issuance of the first Security of the series to be issued.
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The Trustee shall not be required to authenticate such
Securities if the issuance of such Securities pursuant to this Indenture would
affect the Trustee's own rights, duties or immunities under the Securities and
this Indenture or otherwise in a manner not reasonably acceptable to the
Trustee.
The Trustee may appoint an authenticating agent acceptable to
the Company to authenticate Securities. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the
Trustee includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with the Company, any Guarantor or an Affiliate
of the Company or any Guarantor.
Each Security shall be dated the date of its authentication.
SECTION 2.05 Registrar and Paying Agent.
The Company shall maintain an office or agency for each series
of Securities where Securities of such series may be presented for registration
of transfer or exchange ("Registrar") and an office or agency where Securities
of such series may be presented for payment ("Paying Agent"). The Registrar
shall keep a register of the Securities of such series and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Registrar or Paying Agent not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any Agent not a
party to this Indenture. The Company may change any Paying Agent or Registrar
without notice to any Holder. If the Company fails to appoint or maintain
another entity as Registrar or Paying Agent, the Trustee shall act as such. The
Company, any Guarantor or any Subsidiary may act as Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and
Paying Agent.
SECTION 2.06 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the
Trustee to agree in writing that the Paying Agent will hold in trust for the
benefit of Holders or the Trustee all money held by the Paying Agent for the
payment of principal of, premium, if any, or interest on or any Additional
Amounts with respect to Securities and will notify the Trustee of any default by
the Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee
and to account for any funds disbursed. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed. Upon payment over to the Trustee and upon accounting for any
funds disbursed, the Paying Agent (if other than the Company, a Guarantor or a
Subsidiary) shall have no further liability for the money. If the Company, a
Guarantor or a Subsidiary acts as Paying Agent, it shall segregate and hold in a
separate trust
14
fund for the benefit of the Holders all money held by it as Paying Agent. Each
Paying Agent shall otherwise comply with TIA Section 317(b).
SECTION 2.07 Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Holders and shall otherwise comply with TIA Section 312(a). If the
Trustee is not the Registrar with respect to a series of Securities, the Company
shall furnish to the Trustee at least five Business Days before each Interest
Payment Date with respect to such series of Securities, and at such other times
as the Trustee may request in writing, a list in such form and as of such date
as the Trustee may reasonably require of the names and addresses of Holders of
such series, and the Company shall otherwise comply with TIA Section 312(a).
SECTION 2.08 Transfer and Exchange.
Except as set forth in Section 2.17 or as may be provided
pursuant to Section 2.01:
When Securities of any series are presented to the Registrar
with the request to register the transfer of such Securities or to exchange such
Securities for an equal principal amount of Securities of the same series of
like tenor and of other authorized denominations, the Registrar shall register
the transfer or make the exchange as requested if its requirements and the
requirements of this Indenture for such transactions are met; provided, however,
that the Securities presented or surrendered for registration of transfer or
exchange shall be duly endorsed or accompanied by a written instruction of
transfer in form reasonably satisfactory to the Registrar duly executed by the
Holder thereof or by his attorney, duly authorized in writing, on which
instruction the Registrar can rely.
To permit registrations of transfers and exchanges, the
Company and the Guarantors shall execute and the Trustee shall authenticate
Securities at the Registrar's written request and submission of the Securities
or Global Securities. No service charge shall be made to a Holder for any
registration of transfer or exchange (except as otherwise expressly permitted
herein), but the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than such transfer tax or similar governmental charge payable upon
exchanges pursuant to Section 2.12, 3.07 or 9.05). The Trustee shall
authenticate Securities in accordance with the provisions of Section 2.04.
Notwithstanding any other provisions of this Indenture to the contrary, the
Company shall not be required to register the transfer or exchange of (a) any
Security selected for redemption in whole or in part pursuant to Article III,
except the unredeemed portion of any Security being redeemed in part, or (b) any
Security during the period beginning 15 Business Days prior to the mailing of
notice of any offer to repurchase Securities of the series required pursuant to
the terms thereof or of redemption of Securities of a series to be redeemed and
ending at the close of business on the day of mailing.
15
SECTION 2.09 Replacement Securities.
If any mutilated Security is surrendered to the Trustee, or if
the Holder of a Security claims that the Security has been destroyed, lost or
stolen and the Company and the Trustee receive evidence to their satisfaction of
the destruction, loss or theft of such Security, the Company shall issue, the
Guarantors shall execute and the Trustee shall authenticate a replacement
Security of the same series if the Trustee's requirements are met. If any such
mutilated, destroyed, lost or stolen Security has become or is about to become
due and payable, the Company in its discretion may, instead of issuing a new
Security, pay such Security. If required by the Trustee, any Guarantor or the
Company, such Holder must furnish an indemnity bond that is sufficient in the
judgment of the Trustee and the Company to protect the Company, each Guarantor,
the Trustee, any Agent or any authenticating agent from any loss that any of
them may suffer if a Security is replaced. The Company and the Trustee may
charge a Holder for their expenses in replacing a Security.
Every replacement Security is an additional obligation of the
Company.
SECTION 2.10 Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest in a Global Security
effected by the Trustee hereunder and those described in this Section 2.10 as
not outstanding.
If a Security is replaced pursuant to Section 2.09, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid
under Section 4.01, it ceases to be outstanding and interest on it ceases to
accrue.
A Security does not cease to be outstanding because the
Company, a Guarantor or an Affiliate of the Company or a Guarantor holds the
Security.
SECTION 2.11 Original Issue Discount, Foreign-Currency Denominated and Treasury
Securities.
In determining whether the Holders of the required principal
amount of Securities have concurred in any direction, amendment, supplement,
waiver or consent, (a) the principal amount of an Original Issue Discount
Security shall be the principal amount thereof that would be due and payable as
of the date of such determination upon acceleration of the Maturity thereof
pursuant to Section 6.02, (b) the principal amount of a Security denominated in
a foreign currency shall be the Dollar equivalent, as determined by the Company
by reference to the noon buying rate in The City of New York for cable transfers
for such currency, as such rate is certified for customs purposes by the Federal
Reserve Bank of New York (the "Exchange Rate") on the date of original issuance
of such Security, of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent, as determined by the Company by
reference to the Exchange Rate on the date of original issuance of such
Security, of the amount
16
determined as provided in (a) above), of such Security and (c) Securities owned
by the Company, a Guarantor or any other obligor upon the Securities or any
Affiliate of the Company, of a Guarantor or of such other obligor shall be
disregarded, except that, for the purpose of determining whether the Trustee
shall be protected in relying upon any such direction, amendment, supplement,
waiver or consent, only Securities that a Responsible Officer of the Trustee
actually knows are so owned shall be so disregarded.
SECTION 2.12 Temporary Securities.
Until definitive Securities of any series are ready for
delivery, the Company may prepare, the Guarantors shall execute and the Trustee
shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities, but may have variations that
the Company considers appropriate for temporary Securities. Without unreasonable
delay, the Company shall prepare, the Guarantors shall execute and the Trustee
shall authenticate definitive Securities in exchange for temporary Securities.
Until so exchanged, the temporary Securities shall in all respects be entitled
to the same benefits under this Indenture as definitive Securities.
SECTION 2.13 Cancellation.
The Company or any Guarantor at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them for registration
of transfer, exchange, payment or redemption or for credit against any sinking
fund payment. The Trustee shall cancel all Securities surrendered for
registration of transfer, exchange, payment, redemption, replacement or
cancellation or for credit against any sinking fund. Unless the Company shall
direct in writing that canceled Securities be returned to it, after written
notice to the Company all canceled Securities held by the Trustee shall be
disposed of in accordance with the usual disposal procedures of the Trustee, and
the Trustee shall maintain a record of their disposal. The Company may not issue
new Securities to replace Securities that have been paid or that have been
delivered to the Trustee for cancellation.
SECTION 2.14 Payments; Defaulted Interest.
Unless otherwise provided as contemplated by Section 2.01,
interest (except defaulted interest) on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Persons who are registered Holders of that Security at the close of
business on the record date next preceding such Interest Payment Date, even if
such Securities are canceled after such record date and on or before such
Interest Payment Date. The Holder must surrender a Security to a Paying Agent to
collect principal payments. Unless otherwise provided with respect to the
Securities of any series, the Company will pay the principal of, premium (if
any) and interest on and any Additional Amounts with respect to the Securities
in Dollars. Such amounts shall be payable at the offices of the Trustee or any
Paying Agent, provided that at the option of the Company, the Company may pay
such amounts (1) by wire transfer with respect to Global Securities or (2) by
check payable in such money mailed to a Holder's registered address with respect
to any Securities.
17
If the Company defaults in a payment of interest on the
Securities of any series, the Company shall pay the defaulted interest in any
lawful manner plus, to the extent lawful, interest on the defaulted interest, in
each case at the rate provided in the Securities of such series and in Section
4.01. The Company may pay the defaulted interest to the Persons who are Holders
on a subsequent special record date. At least 15 days before any special record
date selected by the Company, the Company (or the Trustee, in the name of and at
the expense of the Company upon 20 days' prior written notice from the Company
setting forth such special record date and the interest amount to be paid) shall
mail to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
SECTION 2.15 Persons Deemed Owners.
The Company, the Guarantors, the Trustee, any Agent and any
authenticating agent may treat the Person in whose name any Security is
registered as the owner of such Security for the purpose of receiving payments
of principal of, premium (if any) or interest on or any Additional Amounts with
respect to such Security and for all other purposes. None of the Company, any
Guarantor, the Trustee, any Agent or any authenticating agent shall be affected
by any notice to the contrary.
SECTION 2.16 Computation of Interest.
Except as otherwise specified as contemplated by Section 2.01
for Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year comprising twelve 30-day months.
SECTION 2.17 Global Securities; Book-Entry Provisions.
If Securities of a series are issuable in global form as a
Global Security, as contemplated by Section 2.01, then, notwithstanding clause
(10) of Section 2.01 and the provisions of Section 2.02, any such Global
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 from time to time endorsed thereon and that the
aggregate amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges, transfers or
redemptions. Any endorsement of a Global Security to reflect the amount, or any
increase or decrease in the amount, of outstanding Securities represented
thereby shall be made by the Trustee (i) in such manner and upon instructions
given by such Person or Persons as shall be specified in such Security or in a
Company Order to be delivered to the Trustee pursuant to Section 2.04 or (ii)
otherwise in accordance with written instructions or such other written form of
instructions as is customary for the Depositary for such Security, from such
Depositary or its nominee on behalf of any Person having a beneficial interest
in such Global Security. Subject to the provisions of Section 2.04 and, if
applicable, Section 2.12, 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 in such Security or in the applicable Company Order. With
respect to the Securities of any series that are represented by a Global
Security, the Company and the Guarantors authorize the execution and delivery by
the Trustee of a letter of representations or other similar agreement or
instrument in the form customarily provided for by the Depositary appointed with
respect to
18
such Global Security. Any Global Security may be deposited with the Depositary
or its nominee, or may remain in the custody of the Trustee or the Security
Custodian therefor pursuant to a FAST Balance Certificate Agreement or similar
agreement between the Trustee and the Depositary. If a Company Order 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 11.05 and need not be accompanied by an
Opinion of Counsel.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Security held on their behalf by the Depositary, or the Trustee or the Security
Custodian as its custodian, or under such Global Security, and the Depositary
may be treated by the Company, any Guarantor, the Trustee or the Security
Custodian and any agent of the Company, any Guarantor, the Trustee or the
Security Custodian as the absolute owner of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, (i) the registered holder of
a Global Security of a series may grant proxies and otherwise authorize any
Person, including Agent Members and Persons that may hold interests through
Agent Members, to take any action that a Holder of Securities of such series is
entitled to take under this Indenture or the Securities of such series and (ii)
nothing herein shall prevent the Company, any Guarantor, the Trustee or the
Security Custodian, or any agent of the Company, any Guarantor, the Trustee or
the Security Custodian, from giving effect to any written certification, proxy
or other authorization furnished by the Depositary or shall impair, as between
the Depositary and its Agent Members, the operation of customary practices
governing the exercise of the rights of a beneficial owner of any Security.
Notwithstanding Section 2.08, and except as otherwise provided
pursuant to Section 2.01: Transfers of a Global Security shall be limited to
transfers of such Global Security in whole, but not in part, to the Depositary,
its successors or their respective nominees. Interests of beneficial owners in a
Global Security may be transferred in accordance with the rules and procedures
of the Depositary. Securities shall be transferred to all beneficial owners in
exchange for their beneficial interests in a Global Security if, and only if,
either (1) the Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for the Global Security and a successor Depositary is not
appointed by the Company within 90 days of such notice, (2) an Event of Default
has occurred with respect to such series and is continuing and the Registrar has
received a request from the Depositary to issue Securities in lieu of all or a
portion of the Global Security (in which case the Company shall deliver
Securities within 30 days of such request) or (3) the Company determines not to
have the Securities represented by a Global Security.
In connection with any transfer of a portion of the beneficial
interests in a Global Security to beneficial owners pursuant to this Section
2.17, the Registrar shall reflect on its books and records the date and a
decrease in the principal amount of the Global Security in an amount equal to
the principal amount of the beneficial interests in the Global Security to be
transferred, and the Company and the Guarantors shall execute, and the Trustee
upon receipt of a Company Order for the authentication and delivery of
Securities shall authenticate and deliver, one or more Securities of the same
series of like tenor and amount.
In connection with the transfer of all the beneficial
interests in a Global Security to beneficial owners pursuant to this Section
2.17, the Global Security shall be deemed to be
19
surrendered to the Trustee for cancellation, and the Company and the Guarantors
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depositary in exchange for its beneficial
interests in the Global Security, an equal aggregate principal amount of
Securities of authorized denominations.
Neither the Company, any Guarantor nor the Trustee will have
any responsibility or liability for any aspect of the records relating to, or
payments made on account of, Securities by the Depositary, or for maintaining,
supervising or reviewing any records of the Depositary relating to such
Securities. Neither the Company, any Guarantor nor the Trustee shall be liable
for any delay by the related Global Security Holder or the Depositary in
identifying the beneficial owners, and each such Person may conclusively rely
on, and shall be protected in relying on, instructions from such Global Security
Holder or the Depositary for all purposes (including with respect to the
registration and delivery, and the respective principal amounts, of the
Securities to be issued).
The provisions of the last sentence of the third paragraph of
Section 2.04 shall apply to any Global Security if such Global Security was
never issued and sold by the Company and the Company or a Guarantor delivers to
the Trustee the Global Security together with written instructions (which need
not comply with Section 11.05 and need not be accompanied by an Opinion of
Counsel) with regard to the cancellation or reduction in the principal amount of
Securities represented thereby, together with the written statement contemplated
by the last sentence of the third paragraph of Section 2.04.
Notwithstanding the provisions of Sections 2.03 and 2.14,
unless otherwise specified as contemplated by Section 2.01, payment of principal
of, premium (if any) and interest on and any Additional Amounts with respect to
any Global Security shall be made to the Person or Persons specified therein.
ARTICLE III
REDEMPTION
SECTION 3.01 Applicability of Article.
Securities of any series that are redeemable before their
Stated Maturity shall be redeemable in accordance with their terms and (except
as otherwise specified as contemplated by Section 2.01 for Securities of any
series) in accordance with this Article III.
SECTION 3.02 Notice to the Trustee.
If the Company elects to redeem Securities of any series
pursuant to this Indenture, it shall notify the Trustee of the Redemption Date
and the principal amount of Securities of such series to be redeemed. The
Company shall so notify the Trustee at least 45 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee) by delivering to
the Trustee an Officers' Certificate stating that such redemption will comply
with the provisions of this Indenture and of the Securities of such series. Any
such notice may be canceled at any time prior to the mailing of such notice of
such redemption to any Holder and shall thereupon be void and of no effect.
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SECTION 3.03 Selection of Securities To Be Redeemed.
If less than all the Securities of any series are to be
redeemed (unless all of the Securities of such series of a specified tenor 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 (and tenor) not previously called for
redemption, either pro rata, by lot or by such other method as the Trustee shall
deem fair and appropriate and that 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 or of the principal amount of Global Securities of
such series.
The Trustee shall promptly notify the Company and the
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
For purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any of the Securities redeemed or to be redeemed only in part, to
the portion of the principal amount thereof which has been or is to be redeemed.
SECTION 3.04 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 the address of
such Holder appearing in the register of Securities maintained by the Registrar.
All notices of redemption shall identify the Securities to be
redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) that, unless the Company and the Guarantors default in
making the redemption payment, interest on Securities called for
redemption ceases to accrue on and after the Redemption Date, and the
only remaining right of the Holders of such Securities is to receive
payment of the Redemption Price upon surrender to the Paying Agent of
the Securities redeemed;
(4) if any Security is to be redeemed in part, the portion of
the principal amount thereof to be redeemed and that on and after the
Redemption Date, upon surrender for cancellation of such Security to
the Paying Agent, a new Security or Securities in the aggregate
principal amount equal to the unredeemed portion thereof will be issued
without charge to the Holder;
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(5) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price and the name and
address of the Paying Agent;
(6) that the redemption is for a sinking or analogous fund, if
such is the case; and
(7) the CUSIP number, if any, relating to such Securities.
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
written request, by the Trustee in the name and at the expense of the Company.
SECTION 3.05 Effect of Notice of Redemption.
Once notice of redemption is mailed, Securities called for
redemption become due and payable on the Redemption Date and at the Redemption
Price. Upon surrender to the Paying Agent, such Securities called for redemption
shall be paid at the Redemption Price, but interest installments whose maturity
is on or prior to such Redemption Date will be payable on the relevant Interest
Payment Dates to the Holders of record at the close of business on the relevant
record dates specified pursuant to Section 2.01.
SECTION 3.06 Deposit of Redemption Price.
On or prior to 11:00 a.m., New York City time, on any
Redemption Date, the Company or a Guarantor shall deposit with the Trustee or
the Paying Agent (or, if the Company or such Guarantor is acting as the Paying
Agent, segregate and hold in trust as provided in Section 2.06) an amount of
money in same day funds sufficient to pay the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on
and any Additional Amounts with respect to, the Securities or portions thereof
which are to be redeemed on that date, other than Securities or portions thereof
called for redemption on that date which have been delivered by the Company or a
Guarantor to the Trustee for cancellation.
If the Company or a Guarantor complies with the preceding
paragraph, then, unless the Company and the Guarantors default in the payment of
such Redemption Price, interest on the Securities to be redeemed will cease to
accrue on and after the applicable Redemption Date, whether or not such
Securities are presented for payment, and the Holders of such Securities shall
have no further rights with respect to such Securities except for the right to
receive the Redemption Price upon surrender of such Securities. If any Security
called for redemption shall not be so paid upon surrender thereof for
redemption, the principal, premium, if any, any Additional Amounts, and, to the
extent lawful, accrued interest thereon shall, until paid, bear interest from
the Redemption Date at the rate specified pursuant to Section 2.01 or provided
in the Securities or, in the case of Original Issue Discount Securities, such
Securities' yield to maturity.
SECTION 3.07 Securities Redeemed or Purchased in Part.
Upon surrender to the Paying Agent of a Security to be
redeemed in part, the Company and the Guarantors shall execute and the Trustee
shall authenticate and deliver to the
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Holder of such Security without service charge a new Security or Securities, of
the same series and of any authorized denomination as requested by such Holder
in aggregate principal amount equal to, and in exchange for, the unredeemed
portion of the principal of the Security so surrendered that is not redeemed.
SECTION 3.08 Purchase of Securities.
Unless otherwise specified as contemplated by Section 2.01,
the Company, any Guarantor and any Affiliate of the Company or any Guarantor
may, subject to applicable law, at any time purchase or otherwise acquire
Securities in the open market or by private agreement. Any such acquisition
shall not operate as or be deemed for any purpose to be a redemption of the
indebtedness represented by such Securities. Any Securities purchased or
acquired by the Company or a Guarantor may be delivered to the Trustee and, upon
such delivery, the indebtedness represented thereby shall be deemed to be
satisfied. Section 2.13 shall apply to all Securities so delivered.
SECTION 3.09 Mandatory and Optional Sinking Funds.
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
for by the terms of Securities of any series is herein referred to as an
"optional sinking fund payment." Unless otherwise provided 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 3.10. 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 and by this Article III.
SECTION 3.10 Satisfaction of Sinking Fund Payments with Securities.
The Company or a Guarantor may deliver outstanding Securities
of a series (other than any previously called for redemption) and may apply as a
credit Securities of a series that 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, 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 series of Securities; 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 3.11 Redemption of Securities for Sinking Fund.
Not less than 45 days prior (unless a shorter period shall be
satisfactory to the Trustee) to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate of
the Company 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 delivery of or by crediting Securities of that
series pursuant to Section 3.10 and will
23
also deliver or cause to be delivered to the Trustee any Securities to be so
delivered. Failure of the Company to timely deliver or cause to be delivered
such Officers' Certificate and Securities specified in this paragraph, if any,
shall not constitute a default but shall constitute the election of the Company
(i) that the mandatory sinking fund payment for such series due on the next
succeeding sinking fund payment date shall be paid entirely in cash without the
option to deliver or credit Securities of such series in respect thereof and
(ii) that the Company will make no optional sinking fund payment with respect to
such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional
or both) to be made in cash on the next succeeding sinking fund payment date
plus any unused balance of any preceding sinking fund payments made in cash
shall exceed $100,000 (or the Dollar equivalent thereof based on the applicable
Exchange Rate on the date of original issue of the applicable Securities) or a
lesser sum if the Company shall so request with respect to the Securities of any
particular series, such cash shall be applied on the next succeeding sinking
fund payment date to the redemption of Securities of such series at the sinking
fund redemption price together with accrued interest to the date fixed for
redemption. If such amount shall be $100,000 (or the Dollar equivalent thereof
as aforesaid) or less and the Company makes no such request then it shall be
carried over until a sum in excess of $100,000 (or the Dollar equivalent thereof
as aforesaid) is available. 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 3.03 and cause
notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 3.04. Such notice having been
duly given, the redemption of such Securities shall be made upon the terms and
in the manner stated in Sections 3.05, 3.06 and 3.07.
ARTICLE IV
COVENANTS
SECTION 4.01 Payment of Securities.
The Company shall pay the principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities of each
series on the dates and in the manner provided in the Securities of such series
and in this Indenture. Principal, premium, interest and any Additional Amounts
shall be considered paid on the date due if the Paying Agent (other than the
Company, a Guarantor or a Subsidiary) holds on that date money deposited by the
Company or a Guarantor designated for and sufficient to pay all principal,
premium, interest and any Additional Amounts then due.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue principal and
premium (if any), at a rate equal to the then applicable interest rate on the
Securities to the extent lawful; and it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and any Additional Amount (without regard to any
applicable grace period) at the same rate to the extent lawful.
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SECTION 4.02 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any
series of Securities an office or agency (which may be an office of the Trustee,
the Registrar or the Paying Agent) where Securities of that series may be
presented for registration of transfer or exchange, where Securities of that
series may be presented for payment and where notices and demands to or upon the
Company or a Guarantor in respect of the Securities of that series and this
Indenture may be served. Unless otherwise designated by the Company by written
notice to the Trustee and the Guarantors, such office or agency shall be the
office of the Trustee in The City of New York, which on the date hereof is
located at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. The Company
will give prompt written notice to the Trustee and the Guarantors of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee and the Guarantors with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time
rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of any series for
such purposes. The Company will give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 4.03 SEC Reports; Financial Statements.
(a) If the Company or a Guarantor is subject to the
requirements of Section 13 or 15(d) of the Exchange Act, the Company or such
Guarantor, as the case may be, shall file with the Trustee, within 15 days after
it files the same with the SEC, copies of the annual reports and the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) that the
Company or such Guarantor is required to file with the SEC pursuant to Section
13 or 15(d) of the Exchange Act. If this Indenture is qualified under the TIA,
but not otherwise, the Company and the Guarantors shall also comply with the
provisions of TIA Section 314(a). Delivery of such reports, information and
documents to the Trustee shall be for informational purposes only, and the
Trustee's receipt thereof shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates or certificates delivered pursuant to Section 4.04).
(b) If neither the Company nor any Guarantor is subject to the
requirements of Section 13 or 15(d) of the Exchange Act, the Company and the
Guarantors shall furnish to all Holders of Rule 144A Securities and prospective
purchasers of Rule 144A Securities designated by the Holders of Rule 144A
Securities, promptly upon their request, the information required to be
delivered pursuant to Rule 144A(d)(4) promulgated under the Securities Act of
1933, as amended.
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SECTION 4.04 Compliance Certificate.
(a) Each of the Company and the Guarantors shall deliver to
the Trustee, within 120 days after the end of each fiscal year, a statement
signed by an Officer of the Company or such Guarantor, as the case may be, which
need not constitute an Officers' Certificate, complying with TIA Section
314(a)(4) and stating that in the course of performance by the signing Officer
of his duties as such Officer of the Company or such Guarantor, as the case may
be, he would normally obtain knowledge of the keeping, observing, performing and
fulfilling by the Company or such Guarantor, as the case may be, of its
obligations under this Indenture, and further stating that to the best of his
knowledge the Company or such Guarantor, as the case may be, has kept, observed,
performed and fulfilled each and every covenant contained in this Indenture and
is not in default in the performance or observance of any of the terms,
provisions and conditions hereof (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default of which such
Officer may have knowledge and what action the Company or such Guarantor, as the
case may be, is taking or proposes to take with respect thereto).
(b) The Company or any Guarantor shall, so long as Securities
of any series are outstanding, deliver to the Trustee, forthwith upon any
Officer of the Company or such Guarantor, as the case may be, becoming aware of
any Default or Event of Default under this Indenture, an Officers' Certificate
specifying such Default or Event of Default and what action the Company or such
Guarantor, as the case may be, is taking or proposes to take with respect
thereto.
SECTION 4.05 Corporate Existence.
Subject to Article V, each of the Company and the Guarantors
shall do or cause to be done all things necessary to preserve and keep in full
force and effect its existence.
SECTION 4.06 Waiver of Stay, Extension or Usury Laws.
Each of the Company and the Guarantors covenants (to the
extent that it may lawfully do so) that it will not at any time insist upon, or
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury law or other law that would prohibit or
forgive it from paying all or any portion of the principal of or interest on the
Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of this
Indenture; and (to the extent that it may lawfully do so) each of the Company
and the Guarantors hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 4.07 Additional Amounts.
If the Securities of a series expressly provide for the
payment of Additional Amounts, the Company will pay to the Holder of any
Security of such series Additional Amounts as expressly provided therein.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of or any premium or interest on, or in respect of, any
26
Security of any series or the net proceeds received from the sale or exchange of
any Security of any series, such mention shall be deemed to include mention of
the payment of Additional Amounts provided for in this Section 4.07 to the
extent that, in such context, Additional Amounts are, were or would be payable
in respect thereof pursuant to the provisions of this Section 4.07 and express
mention of the payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
SECTION 4.08 Limitation on Liens.
The Company shall not, and shall not permit any Principal
Domestic Subsidiary to, issue, assume or guarantee any Debt for borrowed money
secured by any Lien upon any Principal Property or any shares of stock or Debt
of any Principal Domestic Subsidiary (whether such Principal Property, shares of
stock or Debt is now owned or hereafter acquired) without making effective
provision whereby the Securities (together with, if the Company shall so
determine, any other Debt or other obligation of the Company or any Subsidiary)
shall be secured equally and ratably with (or, at the option of the Company,
prior to) the Debt so secured for so long as such Debt is so secured. The
foregoing restrictions will not, however, apply to Debt secured by Permitted
Liens.
In addition, the Company and its Principal Domestic
Subsidiaries may, without securing the Securities, issue, assume or guarantee
Debt that would otherwise be subject to the foregoing restrictions in an
aggregate principal amount that, together with all other such Debt of the
Company and its Principal Domestic Subsidiaries that would otherwise be subject
to the foregoing restrictions (not including Debt permitted to be secured under
the definition of Permitted Liens) and the aggregate amount of Attributable Debt
deemed outstanding with respect to Sale/Leaseback Transactions (reduced by the
amount applied pursuant to Section 4.09(b)) does not at any one time exceed 10%
of Consolidated Adjusted Net Assets.
The following types of transactions shall not be deemed to
create "Debt" secured by "Liens" within the meaning of those terms as used in
this Indenture:
(a) the sale or other transfer of (i) oil, gas or other
minerals in place for a period of time until, or in an amount such
that, the purchaser will realize therefrom a specified amount of money
(however determined) or a specified amount of such minerals, or (ii)
any other interest in property of the character commonly referred to as
a "production payment"; and
(b) the mortgage or pledge of any property of the Company or
any Subsidiary in favor of the United States or any State, or any
department, agency, instrumentality or political subdivision of either,
to secure partial, progress, advance or other payments pursuant to the
provisions of any contract or statute.
SECTION 4.09 Limitation on Sale/Leaseback Transactions.
The Company shall not, and shall not permit any Principal
Domestic Subsidiary to, enter into any Sale/Leaseback Transaction with any
Person (other than the Company or a Subsidiary) unless:
27
(a) the Company or such Principal Domestic Subsidiary would be
entitled to incur Debt in a principal amount equal to the Attributable
Debt with respect to such Sale/Leaseback Transaction secured by a Lien
on the property subject to such Sale/Leaseback Transaction pursuant to
Section 4.08 without equally and ratably securing the Securities
pursuant to such covenant; or
(b) within a period commencing 12 months prior to the
consummation of such Sale/Leaseback Transaction and ending 12 months
after the consummation thereof, the Company or any Subsidiary shall
have applied an amount equal to all or a portion of the net proceeds of
such Sale/Leaseback Transaction (with any such amount not being so
applied to be subject to Section 4.09(a)):
(1) to the voluntary defeasance or retirement of any
Securities or any Funded Debt; or
(2) to the acquisition, exploration, drilling,
development, construction, improvement or expansion of one or
more Principal Properties.
For these purposes, the net proceeds of a Sale/Leaseback
Transaction means an amount equal to the greater of (i) the net proceeds of the
sale or transfer of the property leased in such Sale/Leaseback Transaction and
(ii) the fair value, as determined by the Board of Directors of the Company and
evidenced by a Board Resolution, of such property at the time of entering into
such Sale/Leaseback Transaction.
ARTICLE V
SUCCESSORS
SECTION 5.01 Limitations on Mergers and Consolidations.
Neither the Company nor any Guarantor shall, in any
transaction or series of transactions, consolidate with or merge into any
Person, or sell, lease, convey, transfer or otherwise dispose of all or
substantially all of its assets to any Person (other than a consolidation or
merger of the Company and a Guarantor or of the Guarantors or a sale, lease,
conveyance, transfer or other disposition of all or substantially all of the
assets of the Company to a Guarantor or of a Guarantor to the Company or the
other Guarantor), unless:
(1) either (a) the Company or such Guarantor, as the case may
be, shall be the continuing Person or (b) the Person (if other than the
Company or such Guarantor) formed by such consolidation or into which
the Company or such Guarantor is merged, or to which such sale, lease,
conveyance, transfer or other disposition shall be made (collectively,
the "Successor"), is organized and validly existing under the laws of
the United States, any political subdivision thereof or any State
thereof or the District of Columbia, and expressly assumes by
supplemental indenture, in the case of the Company, the due and
punctual payment of the principal of, premium (if any) and interest on
and any Additional Amounts with respect to all the Securities and the
performance of the Company's covenants and obligations under this
Indenture and the Securities, or, in the case of such Guarantor, the
performance of the Guarantee and such Guarantor's covenants and
obligations under this Indenture and the Securities;
28
(2) immediately after giving effect to such transaction or
series of transactions, no Default or Event of Default shall have
occurred and be continuing or would result therefrom; and
(3) the Company or such Guarantor, as the case may be,
delivers to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that the transaction and such supplemental
indenture comply with this Indenture.
SECTION 5.02 Successor Person Substituted.
Upon any consolidation or merger of the Company or a
Guarantor, as the case may be, or any sale, lease, conveyance, transfer or other
disposition of all or substantially all of the assets of the Company or such
Guarantor in accordance with Section 5.01, the Successor formed by such
consolidation or into or with which the Company or such Guarantor is merged or
to which such sale, lease, conveyance, transfer or other disposition is made
shall succeed to, and be substituted for, and may exercise every right and power
of the Company or such Guarantor, as the case may be, under this Indenture and
the Securities with the same effect as if such Successor had been named as the
Company or such Guarantor, as the case may be, herein and the predecessor
Company or Guarantor, in the case of a sale, conveyance, transfer or other
disposition, shall be released from all obligations under this Indenture, the
Securities and, in the case of a Guarantor, the Guarantee.
ARTICLE VI
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default.
Unless either inapplicable to a particular series or
specifically deleted or modified in or pursuant to the supplemental indenture or
Board Resolution establishing such series of Securities or in the form of
Security for such series, an "Event of Default," wherever used herein with
respect to Securities of any series, occurs if:
(1) there is a default in the payment of interest on
or any Additional Amounts with respect to any Security of that series
when the same becomes due and payable and such default continues for a
period of 30 days;
(2) there is a default in the payment of (A) the
principal of any Security of that series at its Maturity or (B) premium
(if any) on any Security of that series when the same becomes due and
payable;
(3) there is a default in the deposit of any sinking
fund payment, when and as due by the terms of a Security of that
series, and such default continues for a period of 30 days;
(4) the Company or any Guarantor fails to comply with
any of its other covenants or agreements in, or provisions of, the
Securities of such series or this Indenture (other than an agreement,
covenant or provision that has expressly been included in this
Indenture solely for the benefit of one or more series of Securities
other
29
than that series) which shall not have been remedied within the
specified period after written notice, as specified in the last
paragraph of this Section 6.01;
(5) the Company or any Guarantor pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Bankruptcy
Custodian of it or for all or substantially all of its
property, or
(D) makes a general assignment for the benefit of its
creditors;
(6) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that remains unstayed and in effect
for 90 days and that:
(A) is for relief against the Company or any
Guarantor as debtor in an involuntary case,
(B) appoints a Bankruptcy Custodian of the Company or
any Guarantor or a Bankruptcy Custodian for all or
substantially all of the property of the Company or any
Guarantor, or
(C) orders the liquidation of the Company or any
Guarantor; or
(7) any other Event of Default provided with respect
to Securities of that series occurs.
The term "Bankruptcy Custodian" means any receiver, trustee,
assignee, liquidator or similar official under any Bankruptcy Law.
The Trustee shall not be deemed to know or have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a Default or Event of Default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Securities and this
Indenture.
When a Default is cured, it ceases.
Notwithstanding the foregoing provisions of this Section 6.01,
if the principal of, premium (if any) or interest on or Additional Amounts with
respect to any Security is payable in a currency or currencies (including a
composite currency) other than Dollars and such currency or currencies are not
available to the Company or a Guarantor for making payment thereof due to the
imposition of exchange controls or other circumstances beyond the control of the
Company or such Guarantor (a "Conversion Event"), each of the Company and the
Guarantors will be
30
entitled to satisfy its obligations to Holders of the Securities by making such
payment in Dollars in an amount equal to the Dollar equivalent of the amount
payable in such other currency, as determined by the Company or the Guarantor
making such payment, as the case may be, by reference to the Exchange Rate on
the date of such payment, or, if such rate is not then available, on the basis
of the most recently available Exchange Rate. Notwithstanding the foregoing
provisions of this Section 6.01, any payment made under such circumstances in
Dollars where the required payment is in a currency other than Dollars will not
constitute an Event of Default under this Indenture.
Promptly after the occurrence of a Conversion Event, the
Company or a Guarantor shall give written notice thereof to the Trustee; and the
Trustee, promptly after receipt of such notice, shall give notice thereof in the
manner provided in Section 11.02 to the Holders. Promptly after the making of
any payment in Dollars as a result of a Conversion Event, the Company or the
Guarantor making such payment, as the case may be, shall give notice in the
manner provided in Section 11.02 to the Holders, setting forth the applicable
Exchange Rate and describing the calculation of such payments.
A Default under clause (4) or (7) of this Section 6.01 is not
an Event of Default until the Trustee notifies the Company and the Guarantors,
or the Holders of at least 25% in principal amount of the then outstanding
Securities of the series affected by such Default (or, in the case of a Default
under clause (4) of this Section 6.01, if outstanding Securities of other series
are affected by such Default, then at least 25% in principal amount of the then
outstanding Securities so affected) notify the Company, the Guarantors and the
Trustee, of the Default, and the Company or the applicable Guarantor, as the
case may be, fails to cure the Default within 90 days after receipt of the
notice. The notice must specify the Default, demand that it be remedied and
state that the notice is a "Notice of Default."
SECTION 6.02 Acceleration.
If an Event of Default with respect to any Securities of any
series at the time outstanding (other than an Event of Default specified in
clause (5) or (6) of Section 6.01) occurs and is continuing, the Trustee by
notice to the Company and the Guarantors, or the Holders of at least 25% in
principal amount of the then outstanding Securities of the series affected by
such Event of Default (or, in the case of an Event of Default described in
clause (4) of Section 6.01, if outstanding Securities of other series are
affected by such Event of Default, then at least 25% in principal amount of the
then outstanding Securities so affected) by notice to the Company, the
Guarantors and the Trustee, may declare the principal of (or, if any such
Securities are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) and all accrued and
unpaid interest on all then outstanding Securities of such series or of all
series, as the case may be, to be due and payable. Upon any such declaration,
the amounts due and payable on the Securities shall be due and payable
immediately. If an Event of Default specified in clause (5) or (6) of Section
6.01 hereof occurs, such amounts shall ipso facto become and be immediately due
and payable without any declaration, notice or other act on the part of the
Trustee or any Holder. The Holders of a majority in principal amount of the then
outstanding Securities of the series affected by such Event of Default or all
series, as the case may be, by written notice to the Trustee may rescind an
acceleration and its consequences (other than nonpayment of principal of or
premium or interest on or any Additional Amounts with
31
respect to the Securities) if the rescission would not conflict with any
judgment or decree and if all existing Events of Default with respect to
Securities of that series (or of all series, as the case may be) have been cured
or waived, except nonpayment of principal, premium, interest or any Additional
Amounts that has become due solely because of the acceleration.
SECTION 6.03 Other Remedies.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal of, or
premium, if any, or interest on the Securities or to enforce the performance of
any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities or does not produce any of them in the proceeding.
A delay or omission by the Trustee or any Holder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04 Waiver of Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a majority
in principal amount of the then outstanding Securities of any series or of all
series (acting as one class) by notice to the Trustee may waive an existing or
past Default or Event of Default with respect to such series or all series, as
the case may be, and its consequences (including waivers obtained in connection
with a tender offer or exchange offer for Securities of such series or all
series or a solicitation of consents in respect of Securities of such series or
all series, provided that in each case such offer or solicitation is made to all
Holders of then outstanding Securities of such series or all series (but the
terms of such offer or solicitation may vary from series to series)), except (1)
a continuing Default or Event of Default in the payment of the principal of, or
premium, if any, or interest on or any Additional Amounts with respect to any
Security or (2) a continued Default in respect of a provision that under Section
9.02 cannot be amended or supplemented without the consent of each Holder
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 6.05 Control by Majority.
With respect to Securities of any series, the Holders of a
majority in principal amount of the then outstanding Securities of such series
may direct in writing the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on it relating to or arising under an Event of Default described in
clause (1), (2), (3) or (7) of Section 6.01, and with respect to all Securities,
the Holders of a majority in principal amount of all the then outstanding
Securities affected may direct in writing the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on it not relating to or arising under such an
Event of Default. However, the Trustee may refuse to follow any direction that
conflicts with applicable law or this Indenture, that the Trustee determines may
be unduly prejudicial to the rights of other
32
Holders, or that may involve the Trustee in personal liability; provided,
however, that the Trustee may take any other action deemed proper by the Trustee
that is not inconsistent with such direction. Prior to taking any action
hereunder, the Trustee shall be entitled to indemnification satisfactory to it
in its sole discretion from Holders directing the Trustee against all losses and
expenses caused by taking or not taking such action.
SECTION 6.06 Limitations on Suits.
Subject to Section 6.07 hereof, a Holder of a Security of any
series may pursue a remedy with respect to this Indenture or the Securities of
such series only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to such series;
(2) the Holders of at least 25% in principal amount of the
then outstanding Securities of such series make a written request to
the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the Securities of that series do not give the
Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over another Holder.
SECTION 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Security to receive payment of principal of and
premium, if any, and interest on and any Additional Amounts with respect to the
Security, on or after the respective due dates expressed in the Security, or to
bring suit for the enforcement of any such payment on or after such respective
dates, is absolute and unconditional and shall not be impaired or affected
without the consent of the Holder.
SECTION 6.08 Collection Suit by Trustee.
If an Event of Default specified in clause (1) or (2) of
Section 6.01 hereof occurs and is continuing, the Trustee is authorized to
recover judgment in its own name and as trustee of an express trust against the
Company or a Guarantor for the amount of principal, premium (if any), interest
and any Additional Amounts remaining unpaid on the Securities of the series
affected by the Event of Default, and interest on overdue principal and premium,
if any, and, to the extent lawful, interest on overdue interest, and such
further amount as shall be sufficient to
33
cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and
other papers or documents and to take such actions, including participating as a
member, voting or otherwise, of any committee of creditors, as may be necessary
or advisable to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel) and the Holders allowed in any judicial proceedings
relative to the Company or a Guarantor or their respective creditors or
properties and shall be entitled and empowered to collect, receive and
distribute any money or other property payable or deliverable on any such claims
and any Bankruptcy Custodian in any such judicial proceeding is hereby
authorized by each Holder to make such payments to the Trustee, and in the event
that the Trustee shall consent to the making of such payments directly to the
Holders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07. To the
extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 7.07 out of the estate in any such proceeding, shall be
denied for any reason, payment of the same shall be secured by a lien on, and
shall be paid out of, any and all distributions, dividends, money, securities
and other properties which the Holders of the Securities may be entitled to
receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
SECTION 6.10 Priorities.
If the Trustee collects any money pursuant to this Article VI,
it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the
Securities in respect of which or for the benefit of which such money
has been collected, for principal, premium (if any), interest and any
Additional Amounts ratably, without preference or priority of any kind,
according to the amounts due and payable on such Securities for
principal, premium (if any), interest and any Additional Amounts,
respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix
record dates and payment dates for any payment to Holders pursuant to this
Article VI.
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To the fullest extent allowed under applicable law, if for the
purpose of obtaining a judgment against the Company or a Guarantor in any court
it is necessary to convert the sum due in respect of the principal of, premium
(if any) or interest on or Additional Amounts with respect to the Securities of
any series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
Business Day in The City of New York next preceding that on which final judgment
is given. Neither the Company, any Guarantor nor the Trustee shall be liable for
any shortfall nor shall it benefit from any windfall in payments to Holders of
Securities under this Section 6.10 caused by a change in exchange rates between
the time the amount of a judgment against it is calculated as above and the time
the Trustee converts the Judgment Currency into the Required Currency to make
payments under this Section 6.10 to Holders of Securities, but payment of such
judgment shall discharge all amounts owed by the Company and the Guarantors on
the claim or claims underlying such judgment.
SECTION 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 6.11 does not apply to a suit by the Trustee, a suit by a
Holder pursuant to Section 6.07, or a suit by a Holder or Holders of more than
10% in principal amount of the then outstanding Securities of any series.
ARTICLE VII
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in such exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default with
respect to the Securities of any series:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture. However, the Trustee shall examine such certificates
and opinions to
35
determine whether, on their face, they appear to conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of Section
7.01(b);
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
the provisions of this Section 7.01.
(e) No provision of this Indenture shall require the Trustee
to expend or risk its own funds or incur any liability. The Trustee may refuse
to perform any duty or exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company and
the Guarantors. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law. All money received by the
Trustee shall, until applied as herein provided, be held in trust for the
payment of the principal of, premium (if any) and interest on and Additional
Amounts with respect to the Securities.
SECTION 7.02 Rights of Trustee.
(a) The Trustee may conclusively rely on any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may
require instruction, an Officers' Certificate or an Opinion of Counsel or both
to be provided. The Trustee shall not be liable for any action it takes or omits
to take in good faith in reliance on such instruction, Officers' Certificate or
Opinion of Counsel. The Trustee may consult at the Company's expense with
counsel of its selection and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
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(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or within its
rights or powers conferred upon it by this Indenture.
(e) Unless otherwise specifically provided in this Indenture,
any demand, request, direction or notice from the Company or any Guarantor shall
be sufficient if signed by an Officer of the Company or such Guarantor, as the
case may be.
(f) The Trustee shall not be obligated to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document.
(g) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each agent, custodian and other Person employed
to act hereunder.
(h) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized to
sign an Officers' Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
SECTION 7.03 May Hold Securities.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company, any
Guarantor or any of their respective Affiliates with the same rights it would
have if it were not Trustee. Any Agent may do the same with like rights and
duties. However, the Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities, it shall not be accountable for
the Company's use of the proceeds from the Securities or any money paid to the
Company or any Guarantor or upon the Company's or such Guarantor's direction
under any provision hereof, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee and
it shall not be responsible for any statement or recital herein or any statement
in the Securities other than its certificate of authentication.
SECTION 7.05 Notice of Defaults.
If a Default or Event of Default with respect to the
Securities of any series occurs and is continuing and it is known to the
Trustee, the Trustee shall mail to Holders of Securities of such series a notice
of the Default or Event of Default within 90 days after it occurs. Except in the
case of a Default or Event of Default in payment of principal of, premium (if
any) and interest on and Additional Amounts or any sinking fund installment with
respect to the Securities
37
of such series, the Trustee may withhold the notice if and so long as a
committee of its Responsible Officers in good faith determines that withholding
the notice is in the interests of Holders of Securities of such series.
SECTION 7.06 Reports by Trustee to Holders.
Within 60 days after each September 15 of each year after the
execution of this Indenture, the Trustee shall mail to Holders of a series, the
Guarantors and the Company a brief report dated as of such reporting date that
complies with TIA Section 313(a); provided, however, that if no event described
in TIA Section 313(a) has occurred within the twelve months preceding the
reporting date with respect to a series, no report need be transmitted to
Holders of such series. The Trustee also shall comply with TIA Section 313(b).
The Trustee shall also transmit by mail all reports if and as required by TIA
Sections 313(c) and 313(d).
A copy of each report at the time of its mailing to Holders of
a series of Securities shall be filed by the Company or a Guarantor with the SEC
and each securities exchange, if any, on which the Securities of such series are
listed. The Company shall notify the Trustee if and when any series of
Securities is listed on any securities exchange.
SECTION 7.07 Compensation and Indemnity.
The Company agrees to pay to the Trustee for its acceptance of
this Indenture and services hereunder such compensation as the Company and the
Trustee shall from time to time agree in writing. The Trustee's compensation
shall not be limited by any law on compensation of a trustee of an express
trust. The Company agrees to reimburse the Trustee upon request for all
reasonable disbursements, advances and expenses incurred by it. Such expenses
shall include the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel.
The Company hereby indemnifies the Trustee and any predecessor
Trustee against any and all loss, liability, damage, claim or expense, including
taxes (other than taxes based upon, measured by or determined by the income of
the Trustee), incurred by it arising out of or in connection with the acceptance
or administration of its duties under this Indenture, except as set forth in the
next following paragraph. The Trustee shall notify the Company and the
Guarantors promptly of any claim for which it may seek indemnity. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The
Trustee may have separate counsel and the Company shall pay the reasonable fees
and expenses of such counsel. The Company need not pay for any settlement made
without its consent.
The Company shall not be obligated to reimburse any expense or
indemnify against any loss or liability incurred by the Trustee through the
Trustee's negligence or bad faith.
To secure the payment obligations of the Company in this
Section 7.07, the Trustee shall have a lien prior to the Securities on all money
or property held or collected by the Trustee, except that held in trust to pay
principal of, premium (if any) and interest on and any Additional Amounts with
respect to Securities of any series. Such lien and the Company's obligations
under this Section 7.07 shall survive the satisfaction and discharge of this
Indenture.
38
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(5) or (6) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a
successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this Section 7.08.
The Trustee may resign and be discharged at any time with
respect to the Securities of one or more series by so notifying the Company and
the Guarantors. The Holders of a majority in principal amount of the then
outstanding Securities of any series may remove the Trustee with respect to the
Securities of such series by so notifying the Trustee, the Company and the
Guarantors. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(3) a Bankruptcy Custodian or public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, with respect to the Securities of one or
more series, the Company 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). Within one
year after the successor Trustee with respect to the Securities of any series
takes office, the Holders of a majority in principal amount of the Securities of
such series then outstanding may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any
series does not take office within 30 days after the retiring or removed Trustee
resigns or is removed, the retiring or removed Trustee (at the expense of the
Company), the Company, any Guarantor or the Holders of at least 10% in principal
amount of the then outstanding Securities of such series may petition any court
of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.
If the Trustee with respect to the Securities of a series
fails to comply with Section 7.10, any Holder of Securities of such series may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee with respect to the Securities of such
series.
39
In case of the appointment of a successor Trustee with respect
to all Securities, each such successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee, to the Company and to the
Guarantors. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the retiring Trustee under this Indenture. The successor Trustee
shall mail a notice of its succession to Holders. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.07.
In case of the appointment of a successor Trustee with respect
to the Securities of one or more (but not all) series, the Company, the
Guarantors, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more (but not all) series shall execute and deliver an
indenture supplemental hereto in which each successor Trustee shall accept such
appointment and that (1) shall confer to each successor Trustee all the rights,
powers 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
confirm that all the rights, powers 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. Nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust, and 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. 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 shall have all the rights, powers 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. On request of
the Company or any successor Trustee, such retiring Trustee shall transfer to
such successor Trustee all property held by such retiring Trustee as Trustee
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates. Such retiring Trustee shall, however, have
the right to deduct its unpaid fees and expenses, including attorneys' fees.
Notwithstanding replacement of the Trustee or Trustees
pursuant to this Section 7.08, the obligations of the Company under Section 7.07
shall continue for the benefit of the retiring Trustee or Trustees.
SECTION 7.09 Successor Trustee by Merger, etc.
Subject to Section 7.10, if the Trustee consolidates, merges
or converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee; provided, however, that in the case of a
transfer of all or substantially all of its corporate trust business to another
corporation, the transferee corporation expressly assumes all of the Trustee's
liabilities hereunder.
In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or
consolidation to such
40
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated; and in case at that time any of the Securities shall not have
been authenticated, any successor to the Trustee may authenticate such
Securities either in the name of any predecessor hereunder or in the name of the
successor to the Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this Indenture provided
that the certificate of the Trustee shall have.
SECTION 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which shall be
a corporation or banking association organized and doing business under the laws
of the United States, any State thereof or the District of Columbia and
authorized under such laws to exercise corporate trust power, shall be subject
to supervision or examination by Federal or State (or the District of Columbia)
authority and shall have, or be a subsidiary of a bank or bank holding company
having, a combined capital and surplus of at least $50 million as set forth in
its most recent published annual report of condition.
The Indenture shall always have a Trustee who satisfies the
requirements of TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5). The Trustee is
subject to and shall comply with the provisions of TIA Section 310(b) during the
period of time required by this Indenture. Nothing in this Indenture shall
prevent the Trustee from filing with the SEC the application referred to in the
penultimate paragraph of TIA Section 310(b).
SECTION 7.11 Preferential Collection of Claims Against the Company or a
Guarantor.
The Trustee is subject to and shall comply with the provisions
of TIA Section 311(a), excluding any creditor relationship listed in TIA Section
311(b). A Trustee who has resigned or been removed shall be subject to TIA
Section 311(a) to the extent indicated therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01 Termination of the Company's and the Guarantors' Obligations.
(a) This Indenture shall cease to be of further effect with
respect to the Securities of a series (except that the Company's obligations
under Section 7.07, the Trustee's and Paying Agent's obligations under Section
8.03 and the rights, powers, protections and privileges accorded the Trustee
under Article VII shall survive), and the Trustee and the Guarantors, on demand
of the Company, shall execute proper instruments acknowledging the satisfaction
and discharge of this Indenture with respect to the Securities of such series,
when:
(1) either:
(A) all outstanding Securities of such series
theretofore authenticated and issued (other than destroyed,
lost or stolen Securities that have been replaced or paid)
have been delivered to the Trustee for cancellation; or
41
(B) all outstanding Securities of such series 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, in the case of clause (i), (ii) or (iii) above, the
Company or a Guarantor has irrevocably deposited or caused to
be deposited with the Trustee as funds (immediately available
to the Holders in the case of clause (i)) in trust for such
purpose (x) cash in an amount, or (y) Government Obligations,
maturing as to principal and interest at such times and in
such amounts as will ensure the availability of cash in an
amount or (z) a combination thereof, which will be sufficient,
in the opinion (in the case of clauses (y) and (z)) of a
nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the
Trustee, to pay and discharge the entire indebtedness on the
Securities of such series for principal and interest to the
date of such deposit (in the case of Securities which have
become due and payable) or for principal, premium, if any, and
interest to the Stated Maturity or Redemption Date, as the
case may be; or
(C) the Company and the Guarantors have properly
fulfilled such other means of satisfaction and discharge as is
specified, as contemplated by Section 2.01, to be applicable
to the Securities of such series;
(2) the Company or a Guarantor has paid or caused to be paid
all other sums payable by them hereunder with respect to the Securities
of such series; and
(3) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture with respect to the Securities of such
series have been complied with, together with an Opinion of Counsel to
the same effect.
(b) Unless this Section 8.01(b) is specified as not being
applicable to Securities of a series as contemplated by Section 2.01, the
Company may, at its option, terminate certain of its and the Guarantors'
respective obligations under this Indenture ("covenant defeasance") with respect
to the Securities of a series if:
(1) the Company or a Guarantor has irrevocably deposited or
caused to be irrevocably deposited with the Trustee as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for and dedicated solely to the benefit of the
Holders of Securities of such series, (i) money in the currency in
which
42
payment of the Securities of such series is to be made in an amount, or
(ii) Government Obligations with respect to such series, maturing as to
principal and interest at such times and in such amounts as will ensure
the availability of money in the currency in which payment of the
Securities of such series is to be made in an amount or (iii) a
combination thereof, that is sufficient, in the opinion (in the case of
clauses (ii) and (iii)) of a nationally recognized firm of independent
public accountants expressed in a written certification thereof
delivered to the Trustee, to pay the principal of and premium (if any)
and interest on all Securities of such series on each date that such
principal, premium (if any) or interest is due and payable and (at the
Stated Maturity thereof or upon redemption as provided in Section
8.01(e)) to pay all other sums payable by it hereunder; provided that
the Trustee shall have been irrevocably instructed to apply such money
and/or the proceeds of such Government Obligations to the payment of
said principal, premium (if any) and interest with respect to the
Securities of such series as the same shall become due;
(2) the Company has delivered to the Trustee an Officers'
Certificate stating that all conditions precedent to satisfaction and
discharge of this Indenture with respect to the Securities of such
series have been complied with, and an Opinion of Counsel to the same
effect;
(3) no Default or Event of Default with respect to the
Securities of such series shall have occurred and be continuing on the
date of such deposit;
(4) the Company shall have delivered to the Trustee an Opinion
of Counsel from a nationally recognized counsel acceptable to the
Trustee or a tax ruling to the effect that the Holders will not
recognize income, gain or loss for U.S. Federal income tax purposes as
a result of the Company's exercise of its option under this Section
8.01(b) and will be subject to U.S. Federal income tax on the same
amount and in the same manner and at the same times as would have been
the case if such option had not been exercised;
(5) the Company and the Guarantors have complied with any
additional conditions specified pursuant to Section 2.01 to be
applicable to the discharge of Securities of such series pursuant to
this Section 8.01; and
(6) such deposit and discharge shall not cause the Trustee to
have a conflicting interest as defined in TIA Section 310(b).
In such event, this Indenture shall cease to be of further
effect (except as set forth in this paragraph), and the Trustee and the
Guarantors, on demand of the Company, shall execute proper instruments
acknowledging satisfaction and discharge under this Indenture. However, the
Company's and the Guarantors' respective obligations in Sections 2.05, 2.06,
2.07, 2.08, 2.09, 4.01, 4.02, 7.07, 7.08, 8.04 and 10.01, the Trustee's and
Paying Agent's obligations in Section 8.03 and the rights, powers, protections
and privileges accorded the Trustee under Article VII shall survive until all
Securities of such series are no longer outstanding. Thereafter, only the
Company's obligations in Section 7.07 and the Trustee's and Paying Agent's
obligations in Section 8.03 shall survive with respect to Securities of such
series.
43
After such irrevocable deposit made pursuant to this Section
8.01(b) and satisfaction of the other conditions set forth herein, the Trustee
upon request shall acknowledge in writing the discharge of the Company's and the
Guarantors' obligations under this Indenture with respect to the Securities of
such series except for those surviving obligations specified above.
In order to have money available on a payment date to pay
principal of or premium (if any) or interest on the Securities, the Government
Obligations shall be payable as to principal or interest on or before such
payment date in such amounts as will provide the necessary money. Government
Obligations shall not be callable at the issuer's option.
(c) If the Company and the Guarantors have previously complied
or are concurrently complying with Section 8.01(b) (other than any additional
conditions specified pursuant to Section 2.01 that are expressly applicable only
to covenant defeasance) with respect to Securities of a series, then, unless
this Section 8.01(c) is specified as not being applicable to Securities of such
series as contemplated by Section 2.01, the Company may elect that its and the
Guarantors' respective obligations to make payments with respect to Securities
of such series be discharged ("legal defeasance"), if:
(1) no Default or Event of Default under clauses (5) and (6)
of Section 6.01 hereof shall have occurred at any time during the
period ending on the 91st day after the date of deposit contemplated by
Section 8.01(b) (it being understood that this condition shall not be
deemed satisfied until the expiration of such period);
(2) unless otherwise specified with respect to Securities of
such series as contemplated by Section 2.01, the Company has delivered
to the Trustee an Opinion of Counsel from a nationally recognized
counsel acceptable to the Trustee to the effect referred to in Section
8.01(b)(4) with respect to such legal defeasance, which opinion is
based on (i) a private ruling of the Internal Revenue Service addressed
to the Company, (ii) a published ruling of the Internal Revenue Service
pertaining to a comparable form of transaction or (iii) a change in the
applicable federal income tax law (including regulations) after the
date of this Indenture;
(3) the Company and the Guarantors have complied with any
other conditions specified pursuant to Section 2.01 to be applicable to
the legal defeasance of Securities of such series pursuant to this
Section 8.01(c); and
(4) the Company has delivered to the Trustee a Company Request
requesting such legal defeasance of the Securities of such series and
an Officers' Certificate stating that all conditions precedent with
respect to such legal defeasance of the Securities of such series have
been complied with, together with an Opinion of Counsel to the same
effect.
In such event, the Company and the Guarantors will be
discharged from their respective obligations under this Indenture and the
Securities of such series to pay principal of, premium (if any) and interest on,
and any Additional Amounts with respect to, Securities of such series, the
Company's and the Guarantors' respective obligations under Sections 4.01, 4.02
and
44
10.01 shall terminate with respect to such Securities, and the entire
indebtedness of the Company evidenced by such Securities and of the Guarantors
evidenced by the related Guarantees shall be deemed paid and discharged.
(d) If and to the extent additional or alternative means of
satisfaction, discharge or defeasance of Securities of a series are specified to
be applicable to such series as contemplated by Section 2.01, each of the
Company and the Guarantors may terminate any or all of its obligations under
this Indenture with respect to Securities of a series and any or all of its
obligations under the Securities of such series if it fulfills such other means
of satisfaction and discharge as may be so specified, as contemplated by Section
2.01, to be applicable to the Securities of such series.
(e) If Securities of any series subject to subsections (a),
(b), (c) or (d) of this Section 8.01 are to be redeemed prior to their Stated
Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory or optional sinking fund provisions, the terms of
the applicable trust arrangement shall provide for such redemption, and the
Company shall make such arrangements as are reasonably satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Company.
SECTION 8.02 Application of Trust Money.
The Trustee or a trustee satisfactory to the Trustee and the
Company shall hold in trust money or Government Obligations deposited with it
pursuant to Section 8.01 hereof. It shall apply the deposited money and the
money from Government Obligations through the Paying Agent and in accordance
with this Indenture to the payment of principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities of the
series with respect to which the deposit was made.
SECTION 8.03 Repayment to Company or Guarantor.
The Trustee and the Paying Agent shall promptly pay to the
Company or any Guarantor any excess money or Government Obligations (or proceeds
therefrom) held by them at any time upon the written request of the Company.
Subject to the requirements of any applicable abandoned
property laws, 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), interest or any Additional Amounts that remain unclaimed for two years
after the date upon which such payment shall have become due. After payment to
the Company, Holders entitled to the money must look to the Company for payment
as general creditors unless an applicable abandoned property law designates
another Person, and all liability of the Trustee and the Paying Agent with
respect to such money shall cease.
SECTION 8.04 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any
money or Government Obligations deposited with respect to Securities of any
series in accordance with Section 8.01 by reason of any legal proceeding or by
reason of any order or judgment of any court or
45
governmental authority enjoining, restraining or otherwise prohibiting such
application, the obligations of the Company and the Guarantors under this
Indenture with respect to the Securities of such series and under the Securities
of such series shall be revived and reinstated as though no deposit had occurred
pursuant to Section 8.01 until such time as the Trustee or the Paying Agent is
permitted to apply all such money or Government Obligations in accordance with
Section 8.01; provided, however, that if the Company or any Guarantor has made
any payment of principal of, premium (if any) or interest on or any Additional
Amounts with respect to any Securities because of the reinstatement of its
obligations, the Company or such Guarantor, as the case may be, shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money or Government Obligations held by the Trustee or the
Paying Agent.
ARTICLE IX
SUPPLEMENTAL INDENTURES AND AMENDMENTS
SECTION 9.01 Without Consent of Holders.
The Company, the Guarantors and the Trustee may amend or
supplement this Indenture or the Securities or waive any provision hereof or
thereof without the consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 5.01;
(3) to provide for uncertificated Securities in addition to or
in place of certificated Securities, or to provide for the issuance of
bearer Securities (with or without coupons);
(4) to provide any security for, or to add any guarantees of
or additional obligors on, any series of Securities or the related
Guarantees;
(5) to comply with any requirement in order to effect or
maintain the qualification of this Indenture under the TIA;
(6) to add to the covenants of the Company or any Guarantor
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 any Guarantor;
(7) to add any additional Events of Default with respect to
all or any series of the Securities (and, if any Event of Default is
applicable to less than all series of Securities, specifying the series
to which such Event of Default is applicable);
(8) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no outstanding Security of any series
created prior to the execution of such amendment or
46
supplemental indenture that is adversely affected in any material
respect by such change in or elimination of such provision;
(9) to establish the form or terms of Securities of any series
as permitted by Section 2.01;
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the
defeasance and discharge of any series of Securities pursuant to
Section 8.01; provided, however, that any such action shall not
adversely affect the interest of the Holders of Securities of such
series or any other series of Securities in any material respect; or
(11) 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 7.08.
Upon the request of the Company, accompanied by a Board
Resolution, and upon receipt by the Trustee of the documents described in
Section 9.06, the Trustee shall, subject to Section 9.06, join with the Company
and the Guarantors in the execution of any supplemental indenture authorized or
permitted by the terms of this Indenture and make any further appropriate
agreements and stipulations that may be therein contained.
SECTION 9.02 With Consent of Holders.
Except as provided below in this Section 9.02, the Company,
the Guarantors and the Trustee may amend or supplement this Indenture with the
written consent (including consents obtained in connection with a tender offer
or exchange offer for Securities of any one or more series or all series or a
solicitation of consents in respect of Securities of any one or more series or
all series, provided that in each case such offer or solicitation is made to all
Holders of then outstanding Securities of each such series (but the terms of
such offer or solicitation may vary from series to series)) of the Holders of at
least a majority in principal amount of the then outstanding Securities of all
series affected by such amendment or supplement (acting as one class).
Upon the request of the Company, accompanied by a Board
Resolution, and upon the filing with the Trustee of evidence of the consent of
the Holders as aforesaid, and upon receipt by the Trustee of the documents
described in Section 9.06, the Trustee shall, subject to Section 9.06, join with
the Company and the Guarantors in the execution of such amendment or
supplemental indenture.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
The Holders of a majority in principal amount of the then
outstanding Securities of one or more series or of all series may waive
compliance in a particular instance by the
47
Company or any Guarantor with any provision of this Indenture with respect to
Securities of such series (including waivers obtained in connection with a
tender offer or exchange offer for Securities of such series or a solicitation
of consents in respect of Securities of such series, provided that in each case
such offer or solicitation is made to all Holders of then outstanding Securities
of such series (but the terms of such offer or solicitation may vary from series
to series)).
However, without the consent of each Holder affected, an
amendment, supplement or waiver under this Section 9.02 may not:
(1) reduce the amount of Securities whose Holders must consent
to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment of
interest, including default interest, on any Security;
(3) reduce the principal of, any premium on or any mandatory
sinking fund payment with respect to, or change the Stated Maturity of,
any Security 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 6.02;
(4) reduce the premium, if any, payable upon the redemption of
any Security or change the time at which any Security may or shall be
redeemed;
(5) change any obligation of the Company or any Guarantor to
pay Additional Amounts with respect to any Security;
(6) change the coin or currency or currencies (including
composite currencies) in which any Security or any premium, interest or
Additional Amounts with respect thereto are payable;
(7) impair the right to institute suit for the enforcement of
any payment of principal of, premium (if any) or interest on or any
Additional Amounts with respect to any Security pursuant to Sections
6.07 and 6.08, except as limited by Section 6.06;
(8) make any change in the percentage of principal amount of
Securities necessary to waive compliance with certain provisions of
this Indenture pursuant to Section 6.04 or 6.07 or make any change in
this sentence of Section 9.02; or
(9) waive a continuing Default or Event of Default in the
payment of principal of, premium (if any) or interest on or Additional
Amounts with respect to the Securities.
A supplemental indenture that changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
48
The right of any Holder to participate in any consent required
or sought pursuant to any provision of this Indenture (and the obligation of the
Company or any Guarantor to obtain any such consent otherwise required from such
Holder) may be subject to the requirement that such Holder shall have been the
Holder of record of any Securities with respect to which such consent is
required or sought as of a date identified by the Company or such Guarantor in a
notice furnished to Holders in accordance with the terms of this Indenture.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to the Holders of each Security
affected thereby a notice briefly describing the amendment, supplement or
waiver. Any failure of the Company to mail such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such
amendment, supplement or waiver.
SECTION 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the
Securities shall comply in form and substance with the TIA as then in effect.
SECTION 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke
the consent as to his or her Security or portion of a Security if the Trustee
receives written notice of revocation before a date and time therefor identified
by the Company or any Guarantor in a notice furnished to such Holder in
accordance with the terms of this Indenture or, if no such date and time shall
be identified, the date the amendment, supplement or waiver becomes effective.
An amendment, supplement or waiver becomes effective in accordance with its
terms and thereafter binds every Holder.
The Company or any Guarantor may, but shall not be obligated
to, fix a record date (which need not comply with TIA Section 316(c)) for the
purpose of determining the Holders entitled to consent to any amendment,
supplement or waiver or to take any other action under this Indenture. If a
record date is fixed, then notwithstanding the provisions of the immediately
preceding paragraph, those Persons who were Holders at such record date (or
their duly designated proxies), and only those Persons, shall be entitled to
consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such Persons continue to be Holders after such
record date. No consent shall be valid or effective for more than 90 days after
such record date unless consents from Holders of the principal amount of
Securities required hereunder for such amendment or waiver to be effective shall
have also been given and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder, unless it is of the type described in any of clauses
(1) through (9) of Section 9.02 hereof. In such case, the amendment, supplement
or waiver shall bind each Holder who has consented to it and every subsequent
Holder that evidences the same debt as the consenting Holder's Security.
49
SECTION 9.05 Notation on or Exchange of Securities.
If an amendment or supplement changes the terms of an
outstanding Security, the Company may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate notation on the
Security at the request of the Company regarding the changed terms and return it
to the Holder. Alternatively, if the Company so determines, the Company in
exchange for the Security shall issue, the Guarantors shall execute and the
Trustee shall authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or to issue a new Security shall not
affect the validity of such amendment or supplement.
Securities of any series authenticated and delivered after the
execution of any amendment or supplement 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 amendment or supplement.
SECTION 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplement authorized
pursuant to this Article if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee. If it does,
the Trustee may, but need not, sign it. In signing or refusing to sign such
amendment or supplement, the Trustee shall be entitled to receive, and, subject
to Section 7.01 hereof, shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel provided at the expense of the Company or
a Guarantor as conclusive evidence that such amendment or supplement is
authorized or permitted by this Indenture, that it is not inconsistent herewith,
and that it will be valid and binding upon the Company and the Guarantors in
accordance with its terms.
ARTICLE X
GUARANTEE
SECTION 10.01 Guarantee.
Each Guarantor, jointly and severally, hereby unconditionally
guarantees to the Holders from time to time of the Securities (a) the full and
prompt payment of the principal of and any premium on any Security when and as
the same shall become due, whether at the Stated Maturity thereof, by
acceleration, redemption or otherwise, and (b) the full and prompt payment of
any interest on and any Additional Amounts with respect to any Security when and
as the same shall become due, subject in each case to any applicable grace
period. Each payment by a Guarantor with respect to any Security shall be paid
in the currency or currencies specified for payments on such Security as
contemplated by Section 2.01 and pursuant to this Indenture. The Guarantee
hereunder constitutes a guarantee of payment and not of collection.
The obligations of each Guarantor hereunder with respect to a
series of Securities shall be absolute and unconditional and, subject to Article
VIII, shall remain in full force and effect until the entire principal of,
premium (if any) and interest on and any Additional Amounts with respect to the
Securities of such series shall have been paid or provided for in accordance
with the provisions of such series and of this Indenture, irrespective of the
validity, regularity or enforceability of any Security of such series or this
Indenture, any change or amendment thereto,
50
the absence of any action to enforce the same, any waiver or consent by the
Trustee or the Holder of any Security of such series with respect to any
provision of such Security or this Indenture, the recovery of any judgment
against the Company or any other Guarantor or any action to enforce the same, or
any other circumstances that may otherwise constitute a legal or equitable
discharge or defense of a guarantor. Each Guarantor hereby waives presentment or
demand of payment or notice to such Guarantor with respect to such Security and
the obligations evidenced thereby or hereby. Each Guarantor further waives any
right of set-off or counterclaim it may have against any Holder of a Security
arising from any other obligations any such Holder may have to the Company or
any Guarantor.
It is the intention of the Guarantors that the Guarantee not
constitute a fraudulent transfer or conveyance for purposes of any Bankruptcy
Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act
or any similar federal or state law to the extent applicable to the Guarantee.
To effectuate the foregoing intention, the obligations of each Guarantor
hereunder shall be limited to the maximum amount as will, after giving effect to
such maximum amount and all other contingent and fixed liabilities of such
Guarantor (other than guarantees of such Guarantor in respect of subordinated
debt) that are relevant under such laws, result in the obligations of such
Guarantor hereunder not constituting a fraudulent transfer or conveyance.
SECTION 10.02 Proceedings Against Guarantor.
In the event of a default in the payment of principal of or
any premium on any Security when and as the same shall become due, whether at
the Stated Maturity thereof, by acceleration, call for redemption or otherwise,
or in the event of a default in any sinking fund payment, or in the event of a
default in the payment of any interest on or any Additional Amounts with respect
to any Security when and as the same shall become due, each of the Trustee and
the Holder of such Security shall have the right to proceed first and directly
against a Guarantor under this Indenture without first proceeding against the
Company or exhausting any other remedies which the Trustee or such Holder may
have and without resorting to any other security held by it.
The Trustee shall have the right, power and authority to do
all things it deems necessary or advisable to enforce the provisions of this
Indenture relating to the Guarantee and to protect the interests of the Holders
of the Securities and, in the event of a default in payment of the principal of
or any premium on any Security when and as the same shall become due, whether at
the Stated Maturity thereof, by acceleration, call for redemption or otherwise,
or in the event of a default in the payment of any interest on or any Additional
Amounts with respect to any Security when and as the same shall become due, the
Trustee may institute or appear in such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any of its rights and
the rights of the Holders, whether for the specific enforcement of any covenant
or agreement in this Indenture relating to the Guarantee or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Without limiting the generality of the foregoing, in the event of a default in
payment of the principal of, premium (if any) and interest on or any Additional
Amounts with respect to any Security when due, the Trustee may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against a
51
Guarantor and collect the moneys adjudged or decreed to be payable in the manner
provided by law out of the property of such Guarantor, wherever situated.
SECTION 10.03 Subrogation.
Each Guarantor shall be subrogated to all rights against the
Company or any other Guarantor of any Holder of Securities of a series in
respect of any amounts paid by such Guarantor pursuant to the provisions of the
Guarantee; provided, however, that such Guarantor shall be entitled to enforce,
or to receive any payments arising out of or based upon, such right of
subrogation only after the principal of, premium (if any) and interest on and
any Additional Amounts with respect to all Securities of such series have been
paid in full.
SECTION 10.04 Guarantee for Benefit of Holders.
The Guarantee contained in this Indenture is entered into by
each Guarantor for the benefit of the Holders from time to time of the
Securities. Such provisions shall not be deemed to create any right in, or to be
in whole or in part for the benefit of, any Person other than the Trustee, the
Guarantors, the Holders from time to time of the Securities and their permitted
successors and assigns.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by operation of TIA Section 318(c), the
imposed duties shall control.
SECTION 11.02 Notices.
Any notice or communication by the Company, any Guarantor or
the Trustee to the others is duly given if in writing and delivered in person or
mailed by first-class mail (registered or certified, return receipt requested),
telex, facsimile or overnight air courier guaranteeing next day delivery, to the
other's address:
If to the Company:
ConocoPhillips
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
52
If to Conoco:
Conoco Inc.
c/o ConocoPhillips
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇▇▇:
▇▇▇▇▇▇▇▇ Petroleum Company
c/o ConocoPhillips
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: General Counsel
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trustee:
The Bank of New York
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10286
Attn: Corporate Trust Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
The Company, any Guarantor or the Trustee by notice to the
others may designate additional or different addresses for subsequent notices or
communications.
All notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if by facsimile; and
the next Business Day after timely delivery to the courier, if sent by overnight
air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by
first-class mail, postage prepaid, to the Holder's address shown on the register
kept by the Registrar. Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided
above within the time prescribed, it is duly given, whether or not the addressee
receives it, except in the case of notice to the Trustee, it is duly given only
when received.
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If the Company or a Guarantor mails a notice or communication
to Holders, it shall mail a copy to the others and to the Trustee and each Agent
at the same time.
All notices or communications, including without limitation
notices to the Trustee, the Company or a Guarantor by Holders, shall be in
writing, except as otherwise set forth herein.
In case by reason of the suspension of regular mail service,
or by reason of any other cause, it shall be impossible to mail any notice
required by this Indenture, then such method of notification as shall be made
with the approval of the Trustee shall constitute a sufficient mailing of such
notice.
SECTION 11.03 Communication by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with
other Holders with respect to their rights under this Indenture or the
Securities. The Company, the Guarantors, the Trustee, the Registrar and anyone
else shall have the protection of TIA Section 312(c).
SECTION 11.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company or a Guarantor
to the Trustee to take any action under this Indenture, the Company or such
Guarantor, as the case may be, shall, if requested by the Trustee, furnish to
the Trustee at the expense of the Company or such Guarantor, as the case may be:
(1) an Officers' Certificate (which shall include the
statements set forth in Section 11.05) stating that, in the opinion of
the signers, all conditions precedent and covenants, if any, provided
for in this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 11.05 hereof) stating that, in the opinion of such
counsel, all such conditions precedent and covenants have been complied
with.
SECTION 11.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA Section 314(a)(4)) shall comply with the provisions of
TIA Section 314(e) and shall include:
(1) a statement that the Person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
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(3) a statement that, in the opinion of such Person, he or she
has made such examination or investigation as is necessary to enable
him or her 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 11.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or at a
meeting of Holders. The Registrar or the Paying Agent may make reasonable rules
and set reasonable requirements for its functions.
SECTION 11.07 Legal Holidays.
If a payment date is a Legal Holiday at a Place of Payment,
payment may be made at that place on the next succeeding day that is not a Legal
Holiday, and no interest shall accrue for the intervening period.
SECTION 11.08 No Recourse Against Others.
A director, officer, employee, stockholder, partner or other
owner of the Company, a Guarantor or the Trustee, as such, shall not have any
liability for any obligations of the Company under the Securities, for any
obligations of any Guarantor under the Guarantee, or for any obligations of the
Company, any Guarantor or the Trustee under this Indenture or for any claim
based on, in respect of or by reason of such obligations or their creation. Each
Holder by accepting a Security waives and releases all such liability. The
waiver and release shall be part of the consideration for the issue of
Securities.
SECTION 11.09 Governing Law.
THIS INDENTURE, THE SECURITIES AND THE GUARANTEE SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS TO THE
EXTENT THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 11.10 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company, any Guarantor or any Subsidiary. Any such
indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.11 Successors.
All agreements of the Company and the Guarantors in this
Indenture and the Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
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SECTION 11.12 Severability.
In case any provision in this Indenture or in the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall, to the fullest extent
permitted by applicable law, not in any way be affected or impaired thereby.
SECTION 11.13 Counterpart Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
SECTION 11.14 Table of Contents, Headings, etc.
The table of contents, cross-reference table and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof and shall in no way
modify or restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
CONOCOPHILLIPS
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and Treasurer
CONOCO INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President and Treasurer
▇▇▇▇▇▇▇▇ PETROLEUM COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President and Treasurer
THE BANK OF NEW YORK, as Trustee
By: /s/ Van ▇. ▇▇▇▇▇
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Name: Van ▇. ▇▇▇▇▇
Title: Vice President