================================================================================
PETROLEUM GEO-SERVICES ASA
AS ISSUER,
EACH OF THE GUARANTORS NAMED HEREIN,
and
LAW DEBENTURE TRUST
COMPANY OF NEW YORK,
AS TRUSTEE
--------------------
INDENTURE
Dated as of ____ __, 2003
--------------------
DEBT SECURITIES
================================================================================
Petroleum Geo-Services ASA
Reconciliation and tie
between Trust Indenture
Act of 1939
and Indenture, dated as of
____ __, 2003
-------------------------
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
(c) Not Applicable
(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)(l)
(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.
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..........................................12
SECTION 2.03 Forms Generally........................................12
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....................15
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................................17
SECTION 2.12 Temporary Securities...................................17
SECTION 2.13 Cancellation...........................................17
SECTION 2.14 Payments; Defaulted Interest...........................18
SECTION 2.15 Persons Deemed Owners..................................18
SECTION 2.16 Computation of Interest................................19
SECTION 2.17 Global Securities; Book-Entry Provisions...............19
ARTICLE III REDEMPTION .......................................................21
SECTION 3.01 Applicability of Article...............................21
SECTION 3.02 Notice to the Trustee..................................21
SECTION 3.03 Selection of Securities To Be Redeemed.................21
SECTION 3.04 Notice of Redemption...................................22
SECTION 3.05 Effect of Notice of Redemption.........................23
SECTION 3.06 Deposit of Redemption Price............................23
SECTION 3.07 Securities Redeemed or Purchased in Part...............23
SECTION 3.08 Purchase of Securities.................................24
SECTION 3.09 Mandatory and Optional Sinking Funds...................24
SECTION 3.10 Satisfaction of Sinking Fund Payments with Securities..24
SECTION 3.11 Redemption of Securities for Sinking Fund..............24
ARTICLE IV COVENANTS .........................................................25
SECTION 4.01 Payment of Securities..................................25
SECTION 4.02 Maintenance of Office or Agency........................26
SECTION 4.03 SEC Reports; Financial Statements......................26
(i)
Table of Contents
-----------------
(continued)
Page
----
SECTION 4.04 Compliance Certificate.................................26
SECTION 4.05 Corporate Existence....................................27
SECTION 4.06 Maintenance of Properties..............................27
SECTION 4.07 Payment of Taxes and Other Claims......................28
SECTION 4.08 Waiver of Stay, Extension or Usury Laws................28
SECTION 4.09 Additional Amounts.....................................28
ARTICLE V SUCCESSORS .........................................................30
SECTION 5.01 Limitations on Mergers and Consolidations..............30
SECTION 5.02 Successor Person Substituted...........................30
ARTICLE VI DEFAULTS AND REMEDIES..............................................31
SECTION 6.01 Events of Default......................................31
SECTION 6.02 Acceleration...........................................33
SECTION 6.03 Other Remedies.........................................33
SECTION 6.04 Waiver of Existing or Past Defaults....................33
SECTION 6.05 Control by Majority....................................34
SECTION 6.06 Limitations on Suits...................................34
SECTION 6.07 Rights of Holders to Receive Payment...................35
SECTION 6.08 Collection Suit by Trustee.............................35
SECTION 6.09 Trustee May File Proofs of Claim.......................35
SECTION 6.10 Priorities.............................................35
SECTION 6.11 Undertaking for Costs..................................36
ARTICLE VII TRUSTEE ..........................................................37
SECTION 7.01 Duties of Trustee......................................37
SECTION 7.02 Rights of Trustee......................................38
SECTION 7.03 May Hold Securities....................................38
SECTION 7.04 Trustee's Disclaimer...................................38
SECTION 7.05 Notice of Defaults.....................................39
SECTION 7.06 Reports by Trustee to Holders..........................39
SECTION 7.07 Compensation and Indemnity.............................39
SECTION 7.08 Replacement of Trustee.................................40
SECTION 7.09 Successor Trustee by Merger, etc.......................42
SECTION 7.10 Eligibility; Disqualification..........................42
SECTION 7.11 Preferential Collection of Claims Against the Company
or a Guarantor.........................................42
ARTICLE VIII DISCHARGE OF INDENTURE...........................................43
(ii)
Table of Contents
-----------------
(continued)
Page
----
SECTION 8.01 Termination of the Company's and the Guarantors'
Obligations............................................43
SECTION 8.02 Application of Trust Money.............................46
SECTION 8.03 Repayment to Company or Guarantor......................47
SECTION 8.04 Reinstatement..........................................47
ARTICLE IX SUPPLEMENTAL INDENTURES AND AMENDMENTS.............................47
SECTION 9.01 Without Consent of Holders.............................47
SECTION 9.02 With Consent of Holders................................49
SECTION 9.03 Compliance with Trust Indenture Act....................50
SECTION 9.04 Revocation and Effect of Consents......................51
SECTION 9.05 Notation on or Exchange of Securities..................51
SECTION 9.06 Trustee to Sign Amendments, etc........................51
ARTICLE X GUARANTEE ..........................................................52
SECTION 10.01 Obligations Guaranteed.................................52
SECTION 10.02 Obligations Unconditional; Reinstatement...............52
SECTION 10.03 No Waiver or Set-off...................................53
SECTION 10.04 Waiver of Notice; Expenses.............................53
SECTION 10.05 Benefit and Enforcement................................54
SECTION 10.06 Limitations on Guarantee; Release......................54
ARTICLE XI MISCELLANEOUS .....................................................54
SECTION 11.01 Trust Indenture Act Controls...........................54
SECTION 11.02 Notices................................................54
SECTION 11.03 Communication by Holders with Other Holders............56
SECTION 11.04 Certificate and Opinion as to Conditions Precedent.....56
SECTION 11.05 Statements Required in Certificate or Opinion..........56
SECTION 11.06 Rules by Trustee and Agents............................57
SECTION 11.07 Legal Holidays.........................................57
SECTION 11.08 No Recourse Against Others.............................57
SECTION 11.09 Governing Law..........................................57
SECTION 11.10 No Adverse Interpretation of Other Agreements..........57
SECTION 11.11 Successors.............................................57
SECTION 11.12 Severability...........................................58
SECTION 11.13 Counterpart Originals..................................58
SECTION 11.14 Table of Contents, Headings, etc.......................58
SECTION 11.15 Agent for Service of Process...........................58
(iii)
Table of Contents
-----------------
(continued)
Page
----
Exhibit A FORM OF ADDITIONAL GUARANTOR SUPPLEMENTAL INDENTURE
(iv)
INDENTURE dated as of _____ ___, 2003 between Petroleum Geo-Services
ASA, a Norwegian public limited liability company (the "Company"), the
guarantors named on the signature page hereof (the "Guarantors") and Law
Debenture Trust Company of New York, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company's unsecured
debentures, notes or other evidences of indebtedness (the "Securities" and each
individually a "Security") 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
with respect to certain taxes, assessments or other governmental charges imposed
on certain Holders and that are owing to such Holders.
"Additional Guarantor" means a Person which becomes an Additional
Guarantor in accordance with Section 4.10.
"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.
"Bankruptcy Law" means Title 11 of the United States Code or any
similar federal, state or foreign law for the relief of debtors.
"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.
"Capital Stock" of any Person means and includes any and all shares,
interests, rights to purchase, warrants or options (whether or not currently
exercisable), participations or other equivalents of or interests (however
designated) in the equity (which includes, but is not limited to, common stock,
preferred stock and partnership and joint venture interests) of such Person
(excluding any debt securities that are convertible into, or exchangeable for,
such equity).
"Common Equity" of any Person means and includes all Capital Stock of
such Person that is generally entitled to (i) vote in the election of directors
of such Person or (ii) if such Person is not a corporation, vote or otherwise
participate in the selection of the governing body, partners, managers or others
that will control the management and policies of such Person.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor 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 that is required by the TIA, the term
"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.
"Corporate Trust Office of the Trustee" shall be the address specified
in Section 11.02 and may be located at such other address as the Trustee may
give notice to the Company.
"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.
"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.
"Financial Indebtedness" means any indebtedness for or in respect of:
(a) moneys borrowed and debit balances at banks and other financial
institutions;
(b) any debenture, bond, note, loan stock or other security;
-2-
(c) any acceptance credit, bankers' acceptances, letters of credit or
other similar instruments (or reimbursement obligations with respect thereto),
other than standby letters of credit, to the extent not drawn;
(d) receivables sold or discounted (otherwise than to the extent sold
or discounted on a non-recourse basis);
(e) the acquisition cost of any asset to the extent payable after the
time of acquisition or possession by the party liable where the advance or
deferred payment is arranged primarily as a method of raising finance or
financing the acquisition of such asset;
(f) leases (whether in respect of land, machinery, equipment or
otherwise) required to be capitalized under GAAP;
(g) for the purposes of Section 5.1 of the First Supplemental Indenture
dated the date hereof only, currency swaps or interest swaps, cap or collar
arrangements or any other derivative instruments calculated by reference to the
▇▇▇▇-to-market valuation of any such transaction at the relevant time;
(h) any amount raised under any other transaction having the commercial
effect of constituting a borrowing;
(i) all indebtedness of others secured by a Lien on any assets of any
member of the Group, whether or not such indebtedness is assumed by a member of
the Group but only to the extent of the recourse against such member of the
Group in respect of such indebtedness; and
(j) any guarantee, indemnity or similar assurance against financial
loss of any person (other than in favor of any member of the Group) but not (for
the avoidance of doubt) for or in respect of performance guarantees and bid
bonds given by (or issued on behalf of) any member of the Group in connection
with the trading activities or ordinary business of the Group.
"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;
provided that if, after the date of this Indenture, the Company adopts the
international accounting standards promulgated by the International Accounting
Standards Board from time to time for the preparation of its audited financial
statements, then the term "GAAP" shall, from the date of such adoption and upon
prior written notice to the Trustee, mean those international accounting
standards.
"Global Security" of any series means a Security of that series 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 noncallable 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
-3-
pledged, or noncallable obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of such government, the payment of which
is fully and unconditionally guaranteed as a full faith and credit obligation by
such government.
"Group" means the Company and its Subsidiaries (other than Project
Companies).
"Guarantors" means the Persons named as the "Guarantors" in the
preamble 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 "Guarantors" shall include any such successor Person, and any
Additional Guarantor, unless such Person has ceased to be a Guarantor pursuant
to the terms of this Indenture.
"Holder" means a Person in whose name a Security is registered.
"Indenture" means this instrument as amended or supplemented from time
to time pursuant to the provisions hereof, and includes the terms of any
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, has
the meaning assigned to such term in the Security as contemplated by Section
2.01.
"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 The City of New York, New York or a Place of Payment are
authorized or obligated by law, regulation or executive order to remain closed.
"Material Subsidiary" means a PGS Subsidiary (i) whose total gross
assets as at the date at which the latest audited consolidated financial
statements of the Group were prepared; and/or (ii) whose total revenues for the
financial period to which the latest audited consolidated financial statements
of the Group relate, account for 10% or more of the consolidated total assets
and/or consolidated total revenues of the Group respectively (calculated by
reference to the then latest audited consolidated financial statements of the
Group). If a PGS Subsidiary becomes a member of the Group after the date on
which the latest audited consolidated financial statements of the Group have
been prepared, the gross assets and revenues of that PGS Subsidiary will be
determined from its latest financial statements (consolidated if it has
Subsidiaries).
Notwithstanding the foregoing each of the following PGS Subsidiaries
shall be deemed to be a "Material Subsidiary" (i) each original Guarantor under
this Indenture, but only until it is demonstrated (by reference to the then
latest audited consolidated financial statements of the Group and the then
latest audited consolidated financial statements of such Guarantor) not to be a
Material Subsidiary according to the tests set forth above and below, (ii) any
member of the Group to which the Company or a Material Subsidiary transfers all
or any substantial part of its assets, but only until it is demonstrated (by
reference to the then latest audited consolidated
-4-
financial statements of the Group and the then latest audited consolidated
financial statements of the relevant original Guarantor under this Indenture)
not to be a Material Subsidiary according to the tests set out above and below,
(iii) the five PGS Subsidiaries with the largest percentage of the total
revenues of the Group (disregarding (A) any PGS Subsidiaries which are
prohibited by law or the terms of a contract with a person who is not a member
of the Group from becoming Guarantors and (B) any PGS Subsidiaries which account
for less than 5% of the consolidated total revenues of the Group) as calculated
by reference to the then latest audited consolidated financial statements of the
Group and the then latest audited financial statements of the relevant PGS
Subsidiary; (iv) the five PGS Subsidiaries with the largest percentage of the
total gross assets of the Group (disregarding any PGS Subsidiaries which are
prohibited by law or the terms of a contract with a person who is not a member
of the Group from becoming Guarantors) as calculated by reference to the then
latest audited consolidated financial statements of the Group and the then
latest audited financial statements of the relevant PGS Subsidiary; and (v)
subject to the other terms of this Agreement, a Designated Material Subsidiary.
"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.
"Obligor" means the Company or a Guarantor.
"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, a 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.
"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.
"PGS Subsidiary" means any Subsidiary of the Company other than a
Project Company.
"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
-5-
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.
"Project Company" means any entity acquired or incorporated after the
Issue Date in which the Company or one or more of its Subsidiaries, or the
Company and one or more of its Subsidiaries, has an equity ownership interest
and that in each case is designated as a Project Company by a resolution of the
Board of Directors of the Company in accordance with the requirements of the
following sentence. The Company may designate any entity that satisfies the
requirements of the previous sentence to be a Project Company by a Board
Resolution, if after giving effect to such designation: (i) such entity does not
own or hold any shares of, or any Security on any property or assets of, or is
owed Financial Indebtedness by, the Company or any of its Subsidiaries; (ii)
such entity is not liable, directly or indirectly, with respect to any Financial
Indebtedness other than Project Finance Debt; (iii) no Default or Event of
Default would occur hereunder by virtue of such designation; and (iv) a copy of
such designation is promptly sent to the Trustee.
"Project Finance Debt" means any indebtedness (including for the
avoidance of doubt any indebtedness under any interest rate, currency swap, cap
or collar arrangement or other like derivative instrument, the value of which
shall be calculated by reference to the ▇▇▇▇-to-market valuation of any such
instrument at any relevant time) incurred in relation to any asset or assets
solely for the purposes of financing the whole or any part of the acquisition,
creation, construction, improvement or development of such asset where the
financial institutions to whom such indebtedness is owed have recourse solely to
the applicable Project Company (where such Project Company is formed solely or
principally for the purpose of the relevant project) and/or to such asset (or
any derivative asset thereof).
"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.
"Rule 144A Securities" means Securities of a series designated pursuant
to Section 2.01 as entitled to the benefits of Section 4.03(b).
"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 the Securities of such series, acting in
its capacity as custodian with respect to the Securities of such series, or any
successor entity thereto.
"Stated Maturity" means, when used with respect to any Security or any
installment of principal thereof or premium 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 premium or interest is due and
payable.
-6-
"Subsidiary" means an entity from time to time of which a Person
directly or indirectly owns or controls shares representing more than 50% of the
voting stock or, by agreement or otherwise, has direct or indirect control. For
the purposes of this definition, "control" means the power to direct the
management and the policies of the entity whether through the ownership of
voting capital, by contract or otherwise.
"Term Loan Facility" means that certain $_______ Facility Agreement,
dated _______, 2003, between the Company, the Original Guarantors (as defined
therein), the Original Lenders (as defined therein) and ___________, as Agent,
as amended and in effect from time to time in accordance with the terms thereof.
"TIA" means the Trust Indenture Act of 1939, as amended (15 U.S.C.
(Sections) 77aaa-77bbbb), as in effect on the date hereof; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"TIA" means to the extent required by any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer this Indenture.
"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, its possessions
(including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake
Island and the Northern Mariana Islands) and other areas subject to its
jurisdiction.
"United States Alien" means any Person who, for United States federal
income tax purposes, is a foreign corporation, a nonresident alien individual, a
nonresident alien or foreign fiduciary of an estate or trust, or a foreign
partnership.
"U.S. Government Obligations" means Government Obligations with respect
to Securities payable in Dollars.
SECTION 1.02 Other Definitions.
Defined
Term in Section
---- ----------
"Agent Members" 2.17
"Bankruptcy Custodian" 6.01
"Conversion Event" 6.01
"covenant defeasance" 8.01
"Designated Material Subsidiary" 4.11
-7-
"Event of Default" 6.01
"Exchange Rate" 2.11
"Guarantee" 10.01
"Judgment Currency" 6.10
"legal defeasance" 8.01
"mandatory sinking fund payment" 3.09
"Minimum Guarantor Threshold" 4.10
"optional sinking fund payment" 3.09
"Paying Agent" 2.05
"Registrar" 2.05
"Required Currency" 6.10
"Successor" 5.01
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Indenture (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, each 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:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP;
(c) "or" is not exclusive;
-8-
(d) words in the singular include the plural, and in the plural include
the singular;
(e) provisions apply to successive events and transactions; and
(f) all references in this Indenture to Articles and Sections are
references to the corresponding Articles and Sections in and of this Indenture.
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) any 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 that, 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 of the
Company (or action pursuant to a Board Resolution of the Company) 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;
-9-
(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 Interest
Payment Date or, if other than as 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 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 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;
-10-
(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;
(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 the transfer restrictions applicable to such Securities
constituting Rule 144A Securities;
(20) whether the Securities of the series are to be entitled to the
benefit of the Guarantee pursuant to Article X or any other covenants or
undertakings of the Guarantors under this Indenture; and
(21) 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
-11-
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 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 rules, the Company's
articles of association 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.
Law Debenture Trust Company 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.
-12-
If an Officer of the Company or of 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 and that such Security is entitled to the
benefit of 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, where applicable, each 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 reasonably 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:
-13-
(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.
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.
-14-
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 of the Company 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 of the
Company) shall have no further liability for the money. If the Company, a
Guarantor or a Subsidiary of the Company acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of the Holders all
money held by it as Paying Agent. 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 Registrar 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
-15-
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 or the Trustee may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection therewith
(other than 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 days before 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.
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 protected purchaser.
-16-
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 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 with respect to which the Trustee has
received written notice that they 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 Company and 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 Company and the Guarantors shall execute
and the Trustee shall authenticate definitive Securities in exchange for
temporary Securities. After the preparation of definitive Securities of such
series, the temporary Securities of such series shall be exchangeable for
definitive Securities of such series upon surrender of the temporary Securities
of such series in accordance with Section 2.08 hereof without charge to the
Holder, and any temporary Securities so surrendered and exchanges shall be
cancelled in accordance with Section 2.13 hereof. 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
-17-
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, 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, and the Trustee shall not authenticate, 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.
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 in the registry maintained by the Registrar 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.
-18-
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 any 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 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
any 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
-19-
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 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.
None of the Company, any Guarantor or the Trustee will have any
responsibility or liability for any aspect of the records relating to, or
payments made on account of, Securities of any series by the Depositary, or for
maintaining, supervising or reviewing any records of the Depositary relating to
such Securities. None of the Company, any Guarantor or 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
-20-
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.
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. Such redemption 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.
-21-
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 plus accrued interest on and any Additional Amounts with respect to
such Securities 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;
(5) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price plus accrued interest on and
any Additional Amounts with respect to such Securities 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.
If at the time notice of redemption shall be given the Company shall
not have deposited with a Paying Agent and/or irrevocably directed the Trustee
or a Paying Agent to apply, from money held by it available to be used for the
redemption of Securities that are to be
-22-
redeemed, an amount in cash sufficient to redeem all of the Securities called
for redemption, including accrued interest to the Redemption Date, such notice
shall state that it is subject to the receipt of the redemption monies by the
Trustee or a Paying Agent on or before the Redemption Date and such notice shall
be of no effect unless such monies are so received before such date.
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 plus accrued interest on and any Additional Amounts
with respect to such Securities, 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 10:00 a.m., New York City time, on any Redemption Date,
the Company or the Guarantors shall deposit with the Trustee or the Paying Agent
(or, if the Company or a 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, plus accrued interest on and any Additional Amounts with
respect to such Securities, 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, plus accrued interest on and any Additional
Amounts with respect to such Securities, upon surrender of such Securities. If
any Security called for redemption shall not be so paid upon surrender thereof
for redemption, the principal of, 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 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.
-23-
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 will be delivered to the Trustee for cancellation and,
upon such delivery, the indebtedness represented thereby shall be deemed to be
satisfied. Section 2.13 shall apply to all Securities so delivered. Prior to
such cancellation any such Securities purchased by the Company or a Guarantor
will be disregarded and deemed not to be outstanding under Section 2.10 for
purposes of Holder consents pursuant to Section 9.01 or otherwise.
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,
that is to be satisfied by payment of cash and the portion thereof, if any, that
is to be satisfied by delivery of or by crediting Securities of that series
pursuant to Section 3.10 and will also deliver or cause to be delivered to the
Trustee any Securities to be so delivered. Failure of the Company to deliver or
cause to be delivered timely such Officers' Certificate and
-24-
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.
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.
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.
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 of the Company) 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.
-25-
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 in a supplemental indenture establishing the
terms of any series of Securities pursuant to Section 2.01 hereof or 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 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Manager, or such other office or agency of the
Trustee as the Trustee may designate from time to time. 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 and each Guarantor hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the 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 Statement.
(a) In addition to any reporting obligations established in one or more
indentures supplemental hereto with respect to any series of Securities, the
Company shall comply with the provisions of TIA (Section)314(a).
(b) Delivery of such reports, information and documents to the Trustee
is for informational purposes only and the Trustee's receipt of such reports
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).
SECTION 4.04 Compliance Certificate.
(a) The Company and each Guarantor (to the extent that such Guarantor
is so required under the TIA) shall deliver to the Trustee, within 180 days
after the end of each fiscal year of the Company, an Officers' Certificate,
complying with TIA (Section) 314(a)(4) and stating that in the course of
performance by the signing Officers of the Company of their duties as such
Officers of the Company they would normally obtain knowledge of the keeping,
observing,
-26-
performing and fulfilling by the Company of its obligations under this
Indenture, and further stating, as to each such Officer signing such statement,
that to his knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions hereof
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which such Officer may have knowledge and what
action the Company is taking or proposes to take with respect thereto).
(b) The Company shall, so long as Securities of any series are
outstanding, deliver to the Trustee, promptly upon any Officer of the Company
becoming aware of any Default or Event of Default under this Indenture, an
Officers' Certificate specifying such Default or Event of Default and what
action the Company is taking or proposes to take with respect thereto
(c) The Company shall promptly notify the Trustee of: (i) receipt of
any notice by a member of the Group from any creditor now claiming, asserting or
alleging that an event of default or termination event (howsoever described) has
occurred, or (ii) a member of the Group becoming aware that a creditor has
commenced any legal proceedings or taken any other formal action in relation to
an event of default or termination event (howsoever described), in each case
relating to any Financial Indebtedness of the Group which exceeds $20,000,000
(or its equivalent in any other currency or currencies) in aggregate principal
amount.
(d) Promptly upon a reasonable request by the Trustee, the Company
shall supply to the Trustee an Officer Certificate certifying that no Default is
continuing (or if a Default is continuing, specifying the Default and the steps,
if any, being taken to remedy it).
SECTION 4.05 Corporate Existence.
Subject to Article V hereof, the Company and each Guarantor shall do or
cause to be done all things necessary to preserve and keep in full force and
effect their respective existence.
SECTION 4.06 Maintenance of Properties.
The Company shall cause all material properties owned by or leased to
the Company or any Material Subsidiary of the Company or used or held for use in
the conduct of its business or the business of any such Material Subsidiary to
be maintained and kept in good condition, repair and working order (reasonable
wear and tear excepted) and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the sole
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly conducted at all times; provided that
nothing in this Section 4.06 shall prevent the Company from discontinuing the
operation or maintenance of any of such properties if such discontinuance is, in
the sole judgment of the Company, desirable and, individually or in the
aggregate, not disadvantageous in any material respect to the Holders.
-27-
SECTION 4.07 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (i) all material taxes, assessments and
governmental charges levied or imposed upon the Company or any of its Material
Subsidiaries or upon the income, profits or property of the Company or any of
its Material Subsidiaries, and (ii) all material lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any of its Material Subsidiaries; provided that the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith or would not be, individually or in
the aggregate, disadvantageous in any material respect to the Holders.
SECTION 4.08 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 4.09 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 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 4.09 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 4.09 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 4.10 Additional Guarantors.
(a) The Company shall ensure that any Material Subsidiary (other than a
Designated Material Subsidiary) which is not at any time a Guarantor, shall,
unless prohibited by law or the terms of a contract with a person who is not a
member of the Group, become an Additional Guarantor within 45 days of the date
of receipt by the Company of the audited financial statements by reference to
which the relevant PGS Subsidiary is demonstrated to be a
-28-
Material Subsidiary or, if earlier, the date on which the Company otherwise
becomes aware that the relevant PGS Subsidiary has become a Material Subsidiary.
(b) Subject to paragraph (c) below, if at any time the aggregate gross
assets of the Company and the Guarantors do not constitute at least 50% of the
total gross assets of the Group (calculated by reference to the then latest
audited consolidated financial statements of the Group and the then latest
audited financial statements of the Company and the Guarantors) (the "Minimum
Guarantor Threshold") then the Company shall ensure that sufficient other PGS
Subsidiaries become Additional Guarantors to ensure that the aggregate gross
assets of the Company and the Guarantors do constitute at least 50% of the total
gross assets of the Group.
(c) The Company shall not be obliged to procure that a PGS Subsidiary
becomes an Additional Guarantor under paragraph (b) above if such PGS Subsidiary
is prohibited by law or by the terms of a contract with a person who is not a
member of the Group from becoming an Additional Guarantor. If all of the PGS
Subsidiaries which are not so prohibited have become Guarantors and the
aggregate gross assets of the Company and the Guarantors do not constitute at
least the Minimum Guarantor Threshold (as defined in paragraph (b) above) then
no Event of Default will occur.
(d) The Company shall ensure that no PGS Subsidiary enters into a
contract with a person which would prohibit that PGS Subsidiary from becoming an
Additional Guarantor other than any such contract entered into in good faith in
the ordinary course of that PGS Subsidiary's business.
SECTION 4.11 Material Subsidiaries.
(a) Subject to paragraph (b) below, if at any time the aggregate gross
assets of the Company and its Material Subsidiaries do not constitute at least
75% of the total gross assets of the Group (calculated by reference to the then
latest audited consolidated financial statements of the Group and the then
latest audited financial statements of the Material Subsidiaries) then the
Company shall designate (by notice in writing to the Trustee) any other PGS
Subsidiary as a Material Subsidiary to ensure that the aggregate gross assets of
the Company and its Material Subsidiaries do constitute at least 75% of the
total gross assets of the Group and after such designation such PGS Subsidiary
will be treated as a "Designated Material Subsidiary" in all respects for
purposes of this Indenture until such time as any such designation is revoked by
notice to the Trustee.
(b) The Company shall not have to comply with paragraph (a) above if,
at the relevant time the aggregate total revenues of the Company and its
Material Subsidiaries constitute at least 75% of the total revenues of the Group
(calculated by reference to the then latest audited consolidated financial
statements of the Group and the then latest audited financial statements of the
Material Subsidiaries).
-29-
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 two or more 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 to one or more other
Guarantors), 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 existing under the laws of the United
States, any political subdivision thereof or any State thereof or the
District of Columbia, the Kingdom of Norway, or any member state of the
European Union and expressly assumes by supplemental indenture, in the case
of the Company, the Company's obligations with respect to 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;
(2) immediately after giving effect to such transaction or series of
transactions, no Default or Event of Default shall have occurred and be
continuing; 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.
-30-
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 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,
-31-
(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 a Default
unless a Trust Officer at the Corporate Trust Office of the Trustee receives
written notice at the Corporate Trust Office of the Trustee of such Default with
specific reference to such Default.
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 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
-32-
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 hereof) 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 a 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 each series affected thereby to be due and
payable. Upon any such declaration, the amounts due and payable on such
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 for
all Securities of any series outstanding 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 each series affected by such Event of
Default 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
Additional Amounts with respect to the Securities) if (i) the rescission would
not conflict with any judgment or decree, (ii) all existing Events of Default
with respect to Securities of each affected series have been cured or waived,
except nonpayment of principal, premium, interest or any Additional Amounts that
has become due solely because of the acceleration and (iii) all sums paid or
advanced by the Trustee hereunder and reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel and any other
amounts due to the Trustee under Section 7.07 hereof have been paid in full.
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 Existing or Past Defaults.
Subject to Sections 6.02, 6.07 and 9.02, the Holders of a majority in
principal amount of the then outstanding Securities of each series by notice to
the Trustee may waive an
-33-
existing or past Default or Event of Default with respect to such series, and
its consequences (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)), 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 of any series 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 with respect to Securities of
such series. However, the Trustee may refuse to follow any direction that
conflicts with applicable law or this Indenture, that the Trustee determines may
be unduly prejudicial to the rights of other Holders, or that may involve the
Trustee in personal liability; 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 reasonably
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.
-34-
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), (2) or (3) 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 cover the costs and expenses of collection, including
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.
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
-35-
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.
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. None of the Company, any Guarantor or 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.
-36-
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 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 Trust 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 hereof.
(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 reasonably
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
-37-
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.
(g) The Trustee shall not be charged with knowledge of any Default or
Event of Default with respect to the Securities, unless either (i) a Trust
Officer shall have actual knowledge of such Default or Event of Default or (ii)
written notice of such Default or Event of Default shall have been given to the
Trustee by the Company or by any Holder of the Securities.
SECTION 7.02 Rights of Trustee.
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper Person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel 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 Officers' Certificate or Opinion of Counsel. The
Trustee may consult with counsel and the written advice of such counsel or any
opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(c) The Trustee may act through agents and shall not be responsible for
the misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it 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 shall be sufficient if
signed by an Officer of the Company.
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 Trustee 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, the Securities or the Guarantee; 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
-38-
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 of such series, the Trustee may withhold the notice if and so long as
a committee of its Trust 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 May 15, beginning with May 15, 2004, and in
any event prior to July 15 in each year, the Trustee shall mail to Holders of a
series, the Company and the Guarantors 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 from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company agrees to reimburse the Trustee upon
request for all reasonable disbursements, advances and expenses incurred by it.
Such expenses shall include the reasonable compensation, disbursements and
expenses of the Trustee's agents and counsel.
The Company and each Guarantor, jointly and severally, hereby
indemnifies the Trustee against any loss, liability or expense incurred by it
arising out of or in connection with the acceptance or administration of its
duties under this Indenture, except as set forth in the next 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.
-39-
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, and the Company hereby grants, 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. The provisions of
Section 7.07 shall survive the resignation and removal of the Trustee and the
satisfaction and discharge of this Indenture.
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
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 60 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the
-40-
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.
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.
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.
-41-
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 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 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)(l), 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.
-42-
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
(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, the
Guarantors or a combination of the Company and the Guarantors have
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 any
interest and any Additional Amounts 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 and any Additional Amounts to the Stated
Maturity or Redemption Date, as the case may be; or
-43-
(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) each of the Company and the Guarantors has paid or caused to be
paid all other sums payable by it or 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 any 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 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 and any Additional Amounts on all Securities of such
series on each date that such principal, premium (if any), interest or
Additional Amount 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 and Additional Amounts 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;
-44-
(4) the Company shall have delivered to the Trustee an Opinion of
Counsel from counsel reasonably 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;
(6) such deposit and discharge shall not cause the Trustee to have a
conflicting interest as defined in TIA(Section)310(b); and
(7) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that after the passage of 91 days following the
deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally.
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, 5.01, 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.
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 each
Guarantor's 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) on or interest or Additional Amounts 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.
(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:
-45-
(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 counsel reasonably acceptable to the
Trustee to the effect referred to in Section 8.01(b)(4) with respect to
such legal defeasance;
(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 each Guarantor will be discharged from
its 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 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 reasonably 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
-46-
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 governmental authority enjoining,
restraining or otherwise prohibiting such application, the obligations of the
Company and each Guarantor 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 without the consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Section 5.01;
-47-
(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 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, as evidenced by an Officers'
Certificate delivered to the Trustee, 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.
-48-
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 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 percentage or principal amount of Securities whose
Holders must consent to an amendment, supplement or waiver hereunder or
under any supplemental indenture or the terms of Securities of any series
established pursuant to Section 2.01 hereof;
(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;
-49-
(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;
(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; or
(10) change the definition of Securities deemed outstanding pursuant to
Section 2.10 hereof.
A supplemental indenture that changes or eliminates any covenant or
other provision of this Indenture that has expressly been included solely for
the benefit of one or more particular series of Securities, or that 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.
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.
-50-
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 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 that becomes effective with respect to a Series of
Securities shall thereafter be conclusive and binding on all holders of
Securities of such Series in accordance with its terms.
The Company 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.
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. Without limitation to the terms of Section
11.04, 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
-51-
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 Obligations Guaranteed.
(a) Unless otherwise provided with respect to the Securities of any
series and subject to the provisions of Section 10.06, each Guarantor hereby
jointly and severally guarantees to the Trustee for its own benefit and the
benefit of the Holders from time to time (i) the full and prompt payment of the
principal of and premium, if any, on the Securities and the indebtedness
represented thereby, when and as the same shall become due and payable, whether
at the Maturity thereof, by acceleration, call for redemption or otherwise, (ii)
the full and prompt payment of interest and any Additional Amount on the
Securities when and as the same shall become due and payable and (iii) all other
monetary obligations of the Company under this Indenture (including under
Section 7.07 hereof) and the Securities (the guarantee in clauses (i), (ii) and
(iii) collectively referred to as the "Guarantee"). Each Guarantor hereby
irrevocably and unconditionally agrees, subject to the provision of Section
10.02, that upon any default by the Company in the payment, when due, of any
principal of, premium, if any, interest or Additional Amount on the Securities,
and after demand therefore being made upon such Guarantor by the Trustee (with a
copy to the Company), such Guarantor will promptly pay the same. All payments by
each 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.
(b) Each Guarantor further agrees, subject to the provisions of Section
10.2 and unless otherwise provided with respect to the Securities of any series,
that this Guarantee constitutes an absolute, present and continuing guarantee of
payment and not of collection, and waives any right to require that any resort
be had by the Trustee or the Holders of the Securities, after demand for such
payment being made upon such Guarantor by the Trustee (with a copy to the
Company), to the Trustee's or any Holder's rights against any other Person, or
any other right or remedy available to the Trustee or any Holder of the
Securities by contract, applicable law or otherwise. The obligations of each
Guarantor under this Guarantee are direct, unconditional and completely
independent of the obligations of any other Person, and, subject to the
provisions of Section 10.2, a separate cause of action or separate causes of
action may be brought and prosecuted against each Guarantor, after demand for
payment being made upon such Guarantor by the Trustee (with a copy to the
Company), without the necessity of joining the Company or any other party or
previously proceeding with or exhausting any other remedy against any other
Person who might have become liable for the indebtedness or of realizing upon
any security held by or for the benefit of the Holders of the Securities.
SECTION 10.02 Obligations Unconditional; Reinstatement.
(a) The obligations of each Guarantor under this Guarantee shall be
absolute and unconditional, irrespective of the validity, regularity, or
enforceability of the Notes or this
-52-
Indenture, the absence of any action to enforce the same, any waiver or consent
of any Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company or the Guarantors, any action to
enforce the same or any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a Guarantor. Subject to the
provisions of Section 10.06, the obligations of each Guarantor under this
Guarantee shall remain in full force and effect, until the entire principal of,
premium, if any, and interest and any Additional Amounts on the Securities shall
have been paid in full or provided for and all costs, Trustee's fees and
commissions, indemnitees, and expenses, if any, shall have been paid in full
and, to the extent permitted by law, such obligations shall not be affected,
modified, released or impaired by any state of facts or the happening from time
to time of any event, whatsoever, whether or not with notice to, or the consent
of, each Guarantor.
(b) If any Holder or the Trustee is required as a result of an
insolvency or similar event to return to any Obligor, or any custodian, trustee,
liquidator or other similar official acting in relation to such Obligor, any
amount paid by such Obligor to the Trustee or such Holder, the Guarantee, to the
extent theretofore discharged, will be reinstated to the extent of such payment.
(c) Each Guarantor agrees that it will not be entitled to any right of
subrogation in relation to the Holders in respect of this Guarantee until
payment in full of all obligations guaranteed hereby. Each Guarantor further
agrees that, as between the Guarantors, on the one hand, and the Holders and the
Trustee, on the other hand, (i) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article 6 hereof for the purposes of
this Guarantee, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (ii) in the event of any declaration of acceleration of such obligations as
provided in Article 6 hereof, such obligations (whether or not due and payable)
will forthwith become due and payable by the Guarantors for the purpose of this
Guarantee. The Guarantors will have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Note Guarantee.
SECTION 10.03 No Waiver or Set-off.
No act of commission or omission of any kind or at any time upon the
part of the Company or the Trustee, or their successors and assigns, in respect
of any matter whatsoever shall in any way impair the rights of the Trustee to
enforce any right, power or benefit under this Guarantee and no set-off,
counterclaim, reduction, or diminution of any obligation, or any defense of a
surety guarantor (other than performance by each Guarantor of its obligations
hereunder, or receipt by the Trustee of payment from the Company) which each
Guarantor has or may have against the Company or the Trustee or any assignee or
successor thereof shall be available hereunder to each Guarantor.
SECTION 10.04 Waiver of Notice; Expenses.
Each Guarantor hereby expressly waives notice from the Trustee or the
Holders from time to time of the Securities of their acceptance and reliance on
this Guarantee of any action taken or omitted in reliance hereon. Each Guarantor
further expressly waives diligence,
-53-
presentment, demand for payment, protest, any requirement that any right or
power be exhausted or any action be taken against the Company or each Guarantor
or against any collateral. Each Guarantor agrees to pay all reasonable costs,
Trustee's fees and commissions and expenses (including all court costs and
reasonable attorneys' fees) which may be incurred by the Trustee in enforcing or
attempting to enforce this Guarantee following any default on the part of each
Guarantor hereunder, whether the same shall be enforced by suit or otherwise.
SECTION 10.05 Benefit and Enforcement.
This Guarantee is given for the benefit of the Trustee and, subject to
the terms and conditions set forth herein or unless otherwise provided with
respect to the Securities of any series, the Holders from time to time of the
Securities, all of whom shall be entitled in the same manner as set forth herein
to enforce performance and observance of this Guarantee.
SECTION 10.06 Limitations on Guarantee; Release.
(a) Notwithstanding anything to the contrary in this Indenture, the
Guarantee by each Guarantor (i) which is incorporated in Norway shall be limited
to the maximum amount which such Guarantor can guarantee without breaching the
terms of the Company ▇▇▇ ▇▇▇▇ of Norway and the liability of such Guarantor
hereunder shall be limited to an aggregate amount of $[to be 2x Total
Commitments], or (ii) which is incorporated in a jurisdiction other than those
referred to in (i) above shall be limited as may be required pursuant to the
laws of such jurisdiction. For the avoidance of doubt, each Guarantor
incorporated in Norway agrees that Sections 62 to 74 (inclusive) of the Finance
Contract Act of June 25, 1999, of Norway do not apply to this Guarantee.
(b) Each Guarantor shall automatically be released and forever
discharged from its Guarantee and other obligations under this Indenture in the
event that (i) all the capital stock of such Guarantor shall be sold,
transferred or otherwise disposed of, if such sale, transfer or other disposal
is permitted by the terms of this Indenture or any relevant Supplemental
Indenture or (ii) such Guarantor is no longer a Material Subsidiary.
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),
electronic mail, facsimile or overnight air courier guaranteeing next day
delivery, to the other's address:
-54-
If to the Company or any Guarantor:
Petroleum Geo-Services ASA
▇▇▇▇▇▇▇▇▇▇▇ ▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Attention: General Counsel and Chief
Financial Officer
Facsimile: (▇▇▇) ▇▇ ▇▇ ▇▇ ▇▇ ▇▇
with a copy to:
Petroleum Geo-Services ASA
▇▇▇ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Facsimile: (▇▇▇) ▇▇▇ ▇▇▇▇
If to the Trustee:
Law Debenture Trust Company of New York
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
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.
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.
-55-
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;
(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
-56-
(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 with respect to such payment 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
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
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 of the Company.
Any such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 11.11 Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successors. All agreements of each Guarantor in this Indenture
and the Securities shall bind its successors. All agreements of the Trustee in
this Indenture shall bind its successors.
-57-
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.
SECTION 11.15 Agent for Service of Process.
The Company and each Guarantor hereby designates CT Corporation System,
having an address at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, as its authorized agent
upon whom process may be served in any action, suit or proceeding that may be
instituted in any State or Federal court sitting in the County of New York of
the State of New York pertaining to this Indenture or any matter arising out of
or related to this Indenture, and the Company and each Guarantor will accept the
jurisdiction of such court in such action, and waive, to the fullest extent
permitted by applicable law, any defense based upon lack of personal
jurisdiction or venue or forum non conveniens. A copy of any such process shall
be sent or given to the Company and the Guarantors at the address for notices
specified in Section 11.02 hereof. The Company and the Guarantors shall maintain
the designation of such authorized agent until two years after termination of
the Company's and the Guarantors' obligation under this Indenture pursuant to
Section 8.01.
-58-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
PETROLEUM GEO-SERVICES ASA
By:
-------------------------------------
Knut Oversjoen
Senior Vice President and Chief
Financial Officer
-------------------------------------
▇▇▇ ▇. ▇▇▇▇▇▇
Senior Vice President--Finance and
Treasurer
GUARANTORS:
[MULTI-KLIENT INVEST AS]
By:
-------------------------------------
Name:
Title:
[PERTRA AS]
By:
-------------------------------------
Name:
Title:
[PGS EXPLORATION UK LIMITED]
By:
-------------------------------------
Name:
Title:
[PGS GEOPHYSICAL AS]
By:
-------------------------------------
Name:
Title:
-59-
[PGS SHIPPING (ISLE OF MAN) LIMITED]
By:
-------------------------------------
Name:
Title:
[PETROJARL 4 DA]
By:
-------------------------------------
Name:
Title:
LAW DEBENTURE TRUST COMPANY OF NEW
YORK, as Trustee
By:
-------------------------------------
-60-
EXHIBIT A
---------
[FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY ADDITIONAL GUARANTORS]
SUPPLEMENTAL INDENTURE (this "Supplemental Indenture"), dated as of
________________, 200__, among __________________ (the "Guaranteeing
Subsidiary"), a subsidiary of Petroleum Geo-Services ASA (the "Company"), the
other Guarantors (as defined in the Indenture referred to herein) and
____________________, as trustee under the indenture referred to below (the
"Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture, dated as of ___________, 2002 (the "Original Indenture"),
as supplemented by the [First] Supplemental Indenture (the "[First] Supplemental
Indenture" and together with the Original Indenture, the "Indenture") and
providing for the issuance of an aggregate principal amount of up to
$____________ of ___% Senior Notes due ____ (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's obligations under the Notes and the Indenture on
the terms and conditions set forth herein and in Article X of the Original
Indenture (the "Note Guarantee"); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE.
(a) Along with all Guarantors named in the Indenture, the Guaranteeing
Subsidiary, in accordance with, and subject to the terms and conditions set
forth in Article X of the Original Indenture, hereby jointly and severally
guarantees, to the Trustee for its own benefit and the benefit of the Holders
from time to time (i) the full and prompt payment of the principal of and
premium, if any, on the Securities and the indebtedness represented thereby,
when and as the same shall become due and payable, whether at the Maturity
thereof, by acceleration, call for redemption or otherwise, (ii) the full and
prompt payment of interest and any Additional Amount on the Securities when and
as the same shall become due and payable and (iii) all other monetary
obligations of the Company under this Indenture (including under Section 7.07 of
the Original Indenture) and the Securities (the guarantee in clauses (i), (ii)
and (iii), collectively referred to as
Schedule B-1
the "Guarantee"). Notwithstanding the foregoing this Guarantee shall be limited
[INSERT REFERENCE TO RELEVANT LEGAL RESTRICTIONS ON GUARANTEE, IF ANY].
(b) This Guarantee shall not be discharged except in accordance with
the terms of the Indenture, and the Guaranteeing Subsidiary accepts all
obligations of a Guarantor under the Indenture.
3. EXECUTION AND DELIVERY. The Guaranteeing Subsidiary agrees that its
Guarantee shall remain in full force and effect notwithstanding any failure to
endorse on each Note a notation of such Guarantee.
4. HEADINGS. The headings in this Supplemental 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.
5. COUNTERPART ORIGINALS. The parties may sign any number of copies of
this Supplemental Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
6. THIS SUPPLEMENTAL INDENTURE AND THIS GUARANTEE SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
7. THE TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Guaranteeing Subsidiary, the Company and the
Guarantors.
Schedule B-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated: _______________, 20___
[GUARANTEEING SUBSIDIARY]
By:
------------------------------------------
Name:
Title:
PETROLEUM GEO-SERVICES ASA
By:
------------------------------------------
Name:
Title:
[EXISTING GUARANTORS]
By:
------------------------------------------
Name:
Title:
LAW DEBENTURE TRUST COMPANY OF NEW YORK,
as Trustee
By:
------------------------------------------
Authorized Signatory
Schedule B-3