FRONTIER OIL CORPORATION GUARANTORS Named Herein AND Trustee INDENTURE DATED AS OF __________________________, 200___ SUBORDINATED DEBT SECURITIES
Exhibit 4.2
FRONTIER
OIL CORPORATION
GUARANTORS
Named
Herein
AND
[
]
Trustee
____________________________________________
DATED
AS OF __________________________, 200___
____________________________________________
SUBORDINATED
DEBT SECURITIES
FRONTIER
OIL CORPORATION
RECONCILIATION
AND TIE BETWEEN TRUST INDENTURE ACT OF 1939, AS AMENDED, AND INDENTURE, DATED
AS
OF ________________, 200___
|
TRUST
INDENTURE ACT SECTION
|
INDENTURE
SECTION
|
|
|
Section
310(a)(1)
|
6.9
|
|
|
(a)(2)
|
6.9
|
|
|
(a)(3)
|
Not
Applicable
|
|
|
(a)(4)
|
Not
Applicable
|
|
|
(a)(5)
|
6.9
|
|
|
(b)
|
6.8
|
|
|
Section
311
|
6.13
|
|
|
Section
312(a)
|
7.1,
7.2(a)
|
|
|
(b)
|
7.2(b)
|
|
|
(c)
|
7.2(c)
|
|
|
Section
313(a)
|
7.3
|
|
|
(b)
|
*
|
|
|
(c)
|
*
|
|
|
(d)
|
7.3
|
|
|
Section
314(a)
|
7.4
|
|
|
(a)(4)
|
10.5
|
|
|
(b)
|
Not
Applicable
|
|
|
(c)(1)
|
1.3
|
|
|
(c)(2)
|
1.3
|
|
|
(c)(3)
|
Not
Applicable
|
|
|
(d)
|
Not
Applicable
|
|
|
(e)
|
1.3
|
|
|
Section
315(a)
|
6.1(a)
|
|
|
(b)
|
6.2
|
|
|
(c)
|
6.1(b)
|
|
|
(d)
|
6.1(c)
|
|
|
(d)(1)
|
6.1(a)(1)
|
|
|
(d)(2)
|
6.1(c)(2)
|
|
|
(d)(3)
|
6.1(c)(3)
|
|
|
(e)
|
5.14
|
|
|
Section
316(a)
|
1.1,
1.2
|
|
|
(a)(1)(A)
|
5.2,
5.12
|
|
|
(a)(1)(B)
|
5.13
|
|
|
(a)(2)
|
Not
Applicable
|
|
|
(b)
|
5.8
|
|
|
(c)
|
1.5(f)
|
|
|
Section
317(a)(1)
|
5.3
|
|
|
(a)(2)
|
5.4
|
|
|
(b)
|
10.3
|
|
|
Section
318(a)
|
1.8
|
|
NOTE:
This reconciliation and tie shall not, for any purpose, be deemed to be a part
of the Indenture.
*
Deemed
included pursuant to Section 318(c) of the Trust Indenture Act
TABLE
OF CONTENTS
PARTIES
RECITALS
OF THE COMPANY:
ARTICLE
ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section
1.1. Definitions.
Section
1.2. Incorporation
by Reference of Trust Indenture Act.
Section
1.3. Compliance
Certificates and Opinions.
Section
1.4. Form
of
Documents Delivered to Trustee.
Section
1.5. Acts
of
Holders; Record Dates.
Section
1.6. Notices,
Etc., to Trustee, Company and Guarantors.
Section
1.7. Notice
to
Holders; Waiver.
Section
1.8. Conflict
with Trust Indenture Act.
Section
1.9. Effect
of
Headings and Table of Contents.
Section
1.10. Successors
and Assigns.
Section
1.11. Separability
Clause.
Section
1.12. Benefits
of Indenture.
Section
1.13. Governing
Law.
Section
1.14. Legal
Holidays.
Section
1.15. Securities
in a Composite Currency, Currency Unit or Foreign Currency.
Section
1.16. Payment
in Required Currency; Judgment Currency.
Section
1.17. Language
of Notices, Etc.
Section
1.18. Incorporators,
Shareholders, Officers and Directors of the Company and the Guarantors Exempt
from Individual Liability.
ARTICLE
TWO
SECURITY
FORMS
Section
2.1. Forms
Generally.
Section
2.2. Form
of
Face of Security.
Section
2.3. Form
of
Reverse of Security.
Section
2.4. Global
Securities.
Section
2.5. Form
of
Trustee’s Certificate of Authentication.
ARTICLE
THREE
THE
SECURITIES
Section
3.1. Amount
Unlimited; Issuable in Series.
Section
3.2. Denominations.
Section
3.3. Execution,
Authentication, Delivery and Dating.
Section
3.4. Temporary
Securities.
Section
3.5. Registration,
Registration of Transfer and Exchange.
Section
3.6. Mutilated,
Destroyed, Lost and Stolen Securities.
Section
3.7. Payment
of Interest; Interest Rights Preserved.
Section
3.8. Persons
Deemed Owners.
Section
3.9. Cancellation.
Section
3.10. Computation
of Interest.
Section
3.11. CUSIP
or
CINS Numbers.
ARTICLE
FOUR
SATISFACTION AND DISCHARGE
Section
4.1. Satisfaction
and Discharge of Indenture.
Section
4.2. Application
of Trust Money.
ARTICLE
FIVE
REMEDIES
Section
5.1. Events
of
Default.
Section
5.2. Acceleration
of Maturity; Rescission and Annulment.
Section
5.3. Collection
of Indebtedness and Suits for Enforcement by Trustee.
Section
5.4. Trustee
May File Proofs of Claim.
Section
5.5. Trustee
May Enforce Claims Without Possession of Securities.
Section
5.6. Application
of Money Collected.
Section
5.7. Limitation
on Suits.
Section
5.8. Unconditional
Right of Holders to Receive Principal, Premium and Interest.
Section
5.9. Restoration
of Rights and Remedies.
Section
5.10. Rights
and Remedies Cumulative.
Section
5.11. Delay
or
Omission Not Waiver.
Section
5.12. Control
by Holders.
Section
5.13. Waiver
of
Past Defaults.
Section
5.14. Undertaking
for Costs.
Section
5.15. Waiver
of
Stay or Extension Laws.
ARTICLE
SIX
THE
TRUSTEE
Section
6.1. Certain
Duties and Responsibilities.
Section
6.2. Notice
of
Defaults.
Section
6.3. Certain
Rights of Trustee.
Section
6.4. Not
Responsible for Recitals or Issuance of Securities.
Section
6.5. May
Hold
Securities.
Section
6.6. Money
Held in Trust.
Section
6.7. Compensation
and Reimbursement.
Section
6.8. Disqualification;
Conflicting Interests.
Section
6.9. Corporate
Trustee Required; Eligibility.
Section
6.10. Resignation
and Removal; Appointment of Successor.
Section
6.11. Acceptance
of Appointment by Successor.
Section
6.12. Merger,
Conversion, Consolidation or Succession to Business.
Section
6.13. Preferential
Collection of Claims Against Company.
Section
6.14. Appointment
of Authenticating Agent.
ARTICLE
SEVEN
HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section
7.1. Company
to Furnish Trustee Names and Addresses of Holders.
Section
7.2. Preservation
of Information; Communications to Holders.
Section
7.3. Reports
by Trustee.
Section
7.4. Reports
by Company.
ARTICLE
EIGHT
CONSOLIDATION, AMALGAMATION, MERGER AND SALE
Section
8.1. Company
May Consolidate, Etc., Only on Certain Terms.
Section
8.2. Successor
Substituted.
ARTICLE
NINE
SUPPLEMENTAL INDENTURES
Section
9.1. Supplemental
Indentures Without Consent of Holders.
Section
9.2. Supplemental
Indentures with Consent of Holders.
Section
9.3. Execution
of Supplemental Indentures.
Section
9.4. Effect
of
Supplemental Indentures.
Section
9.5. Conformity
with Trust Indenture Act.
Section
9.6. Reference
in Securities to Supplemental Indentures.
ARTICLE
TEN
COVENANTS
Section
10.1. Payment
of Principal, Premium and Interest.
Section
10.2. Maintenance
of Office or Agency.
Section
10.3. Money
for
Securities Payments to Be Held in Trust.
Section
10.4. Existence.
Section
10.5. Statement
by Officers as to Default.
Section
10.6. Waiver
of
Certain Covenants.
Section
10.7. Additional
Amounts.
ARTICLE
ELEVEN
REDEMPTION OF SECURITIES
Section
11.1. Applicability
of Article.
Section
11.2. Election
to Redeem; Notice to Trustee.
Section
11.3. Selection
by Trustee of Securities to Be Redeemed.
Section
11.4. Notice
of
Redemption.
Section
11.5. Deposit
of Redemption Price.
Section
11.6. Securities
Payable on Redemption Date.
Section
11.7. Securities
Redeemed in Part.
ARTICLE
TWELVE
SINKING
FUNDS
Section
12.1. Applicability
of Article.
Section
12.2. Satisfaction
of Sinking Fund Payments with Securities.
Section
12.3. Redemption
of Securities for Sinking Fund.
ARTICLE
THIRTEEN
DEFEASANCE
Section
13.1. Applicability
of Article.
Section
13.2. Legal
Defeasance.
Section
13.3. Covenant
Defeasance.
Section
13.4. Deposited
Money and U.S. Government Obligations to be Held in Trust.
Section
13.5. Repayment
to Company; Qualifying Trustee.
ARTICLE
FOURTEEN
GUARANTEE OF SECURITIES
Section
14.1. Unconditional
Guarantee.
Section
14.2. Execution
and Delivery of Notation of Guarantee
Section
14.3. Reports
by Guarantor.
Section
14.4. Subordination
of Guarantees.
ARTICLE
FIFTEEN
SUBORDINATION OF SECURITIES
Section
15.1. Securities
Subordinated to Senior Debt.
Section
15.2. Distribution
on Dissolution, Liquidation and Reorganization; Subrogation of
Securities.
Section
15.3. Payments
on Securities Permitted.
Section
15.4. Authorization
of Holders of Securities to Trustee to Effect Subordination.
Section
15.5. Notices
to Trustee.
Section
15.6. Trustee
as Holder of Senior Debt.
Section
15.7. Modification
of Terms of Senior Debt.
NOTE:
This table of contents shall not, for any purpose, be deemed to be a part of
the
Indenture.
PARTIES
INDENTURE,
dated as of ____________ [__],
200___,
among FRONTIER OIL CORPORATION, a corporation duly organized and existing under
the laws of the State of Wyoming (herein called the “Company”), having an office
at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, the GUARANTORS (as
defined hereinafter) and [
],
a
[
]
banking
corporation, as Trustee (the “Trustee”).
RECITALS
OF THE COMPANY:
The
Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance from time to time of its unsecured subordinated
debentures, notes or other evidences of indebtedness (herein called the
“Securities”), which may but are not required to be guaranteed by the
Guarantors, to be issued in one or more series as provided in this
Indenture.
All
things necessary to make this Indenture a valid agreement of the Company and
of
the Guarantors, in accordance with its terms, have been done.
This
Indenture is subject to the provisions of the Trust Indenture Act that are
required to be a part of this Indenture and, to the extent applicable, shall
be
governed by such provisions.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
For
and
in consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof,
as
follows:
ARTICLE
ONE
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
Section
1.1. Definitions.
For
all
purposes of this Indenture, except as otherwise expressly provided or unless
the
context otherwise requires:
(1) the
terms
defined in this Article have the meanings assigned to them in this Article
and
include the plural as well as the singular;
(2) all
terms
used in this Indenture that are defined in the Trust Indenture Act, defined
by a
Trust Indenture Act reference to another statute or defined by a Commission
rule
under the Trust Indenture Act have the meanings so assigned to
them;
(3) all
accounting terms not otherwise defined herein have the meanings assigned to
them
in accordance with GAAP;
(4) the
words
“herein”, “hereof” and “hereunder” and other words of similar import refer to
this Indenture as a whole and not to any particular Article, Section or other
subdivision;
(5) the
words
“Article” and “Section” refer to an Article and Section, respectively, of this
Indenture; and
(6) the
word
“includes” and its derivatives means “includes, but is not limited to” and
corresponding derivative definitions.
Certain
terms, used principally in Article Six, are defined in that
Article.
“Act”,
when used with respect to any Holder, has the meaning specified in Section
1.5.
“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For the purposes of this definition, “control” when used
with respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise; and the terms
“controlling” and “controlled” have meanings correlative to the
foregoing.
“Authenticating
Agent” means any Person authorized by the Trustee to act on behalf of the
Trustee to authenticate Securities.
“Banking
Day” means, in respect of any city, any date on which commercial banks are open
for business in that city.
“Bankruptcy
Law” means any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law.
“Board
of
Directors” means either the board of directors of the Company or of a Guarantor,
as applicable, or any duly authorized committee of that board to which the
powers of that board have been lawfully delegated.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company, the principal financial officer of the
Company or a Guarantor, any other authorized officer of the Company or a
Guarantor, or a person duly authorized by any of them, in each case as
applicable, to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, and delivered to the
Trustee. Where any provision of this Indenture refers to action to be taken
pursuant to a Board Resolution (including the establishment of any series of
the
Securities and the forms and terms thereof), such action may be taken by any
committee, officer or employee of the Company or a Guarantor, as applicable,
authorized to take such action by the Board of Directors as evidenced by a
Board
Resolution.
“Business
Day”, when used with respect to any Place of Payment or other location, means,
except as otherwise provided as contemplated by Section 3.1 with respect to
any
series of Securities, each Monday, Tuesday, Wednesday, Thursday and Friday
which
is not a day on which banking institutions in that Place of Payment or other
location are authorized or obligated by law, executive order or regulation
to
close.
“CINS”
means CUSIP International Numbering System.
“Commission”
means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this
instrument such Commission is not existing and performing the duties now
assigned to it under the Trust Indenture Act, then the body performing such
duties at such time.
“Company”
means the Person named as the “Company” in the first paragraph of this
instrument until a successor or resulting corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
“Company” shall mean such successor or resulting corporation.
“Company
Request” or “Company Order” means, in the case of the Company, a written request
or order signed in the name of the Company by its Chairman of the Board, its
Chief Executive Officer, its President, any of its Vice Presidents or any other
duly authorized officer of the Company or any person duly authorized by any
of
them, and delivered to the Trustee and, in the case of a Guarantor, a written
request or order signed in the name of such Guarantor by its Chairman of the
Board, its Chief Executive Officer, its President, any of its Vice Presidents
or
any other duly authorized officer of such Guarantor or any person duly
authorized by any of them, and delivered to the Trustee.
“Corporate
Trust Office” means the office of the Trustee at which at any particular time
its corporate trust business shall be principally administered and which, at
the
date hereof, is located at [
].
“corporation”
includes corporations, companies, associations, partnerships, limited
partnerships, limited liability companies, joint-stock companies and
trusts.
“covenant
defeasance” has the meaning specified in Section 13.3.
“CUSIP”
means the Committee on Uniform Securities Identification
Procedures.
“Custodian”
means any receiver, trustee, assignee, liquidator or similar official under
any
Bankruptcy Law.
“Debt”
means any obligation created or assumed by any Person for the repayment of
money
borrowed and any purchase money obligation created or assumed by such Person
and
any guarantee of the foregoing.
“Default”
means, with respect to a series of Securities, any event that is, or after
notice or lapse of time or both would be, an Event of Default.
“Defaulted
Interest” has the meaning specified in Section 3.7.
“defeasance”
has the meaning specified in Section 13.2.
“Definitive
Security” means a security other than a Global Security or a temporary
Security.
“Depositary”
means, with respect to the Securities of any series issuable or issued in whole
or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as Depositary for
such Securities as contemplated by Section 3.1, until a successor Depositary
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter shall mean or include each Person which is a Depositary
hereunder, and if at any time there is more than one such Person, shall be
a
collective reference to such Persons.
“Dollar”
or “$” means the coin or currency of the United States of America, which at the
time of payment is legal tender for the payment of public and private
debts.
“Event
of
Default” has the meaning specified in Section 5.1.
“Exchange
Act” means the Securities Exchange Act of 1934, as amended.
“Foreign
Currency” means a currency used by the government of a country other than the
United States of America.
“GAAP”
means generally accepted accounting principles in the United States set forth
in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment
of
the accounting profession of the United States, as in effect from time to
time.
“Global
Security” means a Security in global form that evidences all or part of a series
of Securities and is authenticated and delivered to, and registered in the
name
of, the Depositary for the Securities of such series or its
nominee.
“Guarantee”
has the meaning specified in Section 14.1.
“Guarantor”
means each of (i) Frontier Holdings Inc., Frontier Refining and Marketing
Inc., Frontier Refining Inc., Frontier Oil and Refining Company, Frontier
Pipeline Inc., El Dorado Refining Company and (ii) any Person that becomes
a guarantor of any Securities pursuant to the applicable provisions of this
Indenture.
“Guarantor
Senior Debt” means, unless otherwise provided with respect to the Securities of
a series as contemplated by Section 3.1, (1) all Debt of a Guarantor, whether
currently outstanding or hereafter issued, unless, by the terms of the
instrument creating or evidencing such Debt, it is provided that such Debt
is
not superior in right of payment to the Guarantee or to other Debt which is
pari
passu
with or
subordinated to the Guarantee, and (2) any modifications, refunding, deferrals,
renewals or extensions of any such Debt or securities, notes or other evidence
of Debt issued in exchange for such Debt; provided
that in
no event shall “Guarantor Senior Debt” include (a) Debt of a Guarantor owed or
owing to any Subsidiary of such Guarantor or any officer, director or employee
of such Guarantor or any Subsidiary of such Guarantor, (b) Debt to trade
creditors or (c) any liability for taxes owed or owing by a
Guarantor.
“Holder”
means a Person in whose name a Security is registered in the Security
Register.
“Indenture”
means this instrument as originally executed or as it may from time to time
be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, including, for all purposes
of this instrument, and any such supplemental indenture, the provisions of
the
Trust Indenture Act that are deemed to be part of and govern this instrument
and
any such supplemental indenture, respectively. The term “Indenture” also shall
include the terms of particular series of Securities established as contemplated
by Section 3.1.
“interest”,
when used with respect to an Original Issue Discount Security which by its
terms
bears interest only after Maturity, means interest payable after
Maturity.
“Interest
Payment Date”, when used with respect to any Security, means the Stated Maturity
of an installment of interest on such Security.
“Judgment
Currency” has the meaning specified in Section 1.16.
“mandatory
sinking fund payment” has the meaning specified in Section 12.1.
“Maturity”,
when used with respect to any Security, means the date on which the principal
of
such Security or an installment of principal becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
“Notice
of Default” means a written notice of the kind specified in Section 5.1(3) or
Section 5.1(4).
“Officer’s
Certificate” means, in the case of the Company, a certificate signed by the
Chairman of the Board, the Chief Executive Officer, the President, any Vice
President or any other duly authorized officer of the Company, or a person
duly
authorized by any of them, and delivered to the Trustee and, in the case of
a
Guarantor, a certificate signed by the Chairman of the Board, the Chief
Executive Officer, the President, any Vice President or any other duly
authorized officer of such Guarantor, or a person duly authorized by any of
them, and delivered to the Trustee.
“Opinion
of Counsel” means a written opinion of counsel, who may be an employee of or
counsel for the Company or a Guarantor, as the case may be, and who shall be
reasonably acceptable to the Trustee.
“optional
sinking fund payment” has the meaning specified in Section 12.1.
“Original
Issue Discount Security” means any Security which provides for an amount less
than the principal amount thereof to be due and payable upon a declaration
of
acceleration of the Maturity thereof pursuant to Section 5.2.
“Outstanding”,
when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture,
except:
(i) Securities
theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
(ii) Securities
for whose payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than the
Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities;
provided, however, that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities
which have been paid pursuant to Section 3.6 or in exchange for or in lieu
of
which other Securities have been authenticated and delivered pursuant to this
Indenture, other than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that such Securities
are
held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and
(iv) Securities,
except to the extent provided in Section 13.2 and 13.3, with respect to which
the Company has effected defeasance or covenant defeasance as provided in
Article Thirteen, which defeasance or covenant defeasance then continues in
effect;
provided,
however, that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (A) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due
and
payable as of the date of such determination upon acceleration of the Maturity
thereof on such date pursuant to Section 5.2, (B) the principal amount of a
Security denominated in one or more currencies or currency units other than
U.S.
dollars shall be the U.S. dollar equivalent of such currencies or currency
units, determined in the manner provided as contemplated by Section 3.1 on
the
date of original issuance of such Security or by Section 1.15, if not otherwise
so provided pursuant to Section 3.1, of the principal amount (or, in the case
of
an Original Issue Discount Security, the U.S. dollar equivalent (as so
determined) on the date of original issuance of such Security of the amount
determined as provided in Clause (A) above) of such Security, and (C) Securities
owned by the Company, any Guarantor or any other obligor upon the Securities
or
any Affiliate of the Company or of such other obligor shall be disregarded
and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows
to
be so owned shall be so disregarded. Securities so owned as described in Clause
(C) of the immediately preceding sentence which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
of
the Trustee the pledgee’s right to act with respect to such Securities and that
the pledgee is not the Company, a Guarantor or any other obligor upon the
Securities or any Affiliate of the Company or of such other
obligor.
“Paying
Agent” means any Person authorized by the Company to pay the principal of and
any premium or interest on any Securities on behalf of the Company.
“Periodic
Offering” means an offering of Securities of a series from time to time, the
specific terms of which Securities, including, without limitation, the rate
or
rates of interest or formula for determining the rate or rates of interest
thereon, if any, the Stated Maturity or Stated Maturities thereof, the original
issue date or dates thereof, the redemption provisions, if any, with respect
thereto, and any other terms specified as contemplated by Section 3.1 with
respect thereto, are to be determined by the Company upon the issuance of such
Securities.
“Person”
means any individual, corporation, company, limited liability company,
partnership, limited partnership, joint venture, association, joint-stock
company, trust, other entity, unincorporated organization or government or
any
agency or political subdivision thereof.
“Place
of
Payment”, when used with respect to the Securities of any series, means, unless
otherwise specifically provided for with respect to such series as contemplated
by Section 3.1, the office or agency of the Company in the City of New York
and
such other place or places where, subject to the provisions of Section 10.2,
the
principal of and any premium and interest on the Securities of that series
are
payable as contemplated by Section 3.1.
“Predecessor
Security” of any particular Security means every previous Security evidencing
all or a portion of the same Debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security authenticated and
delivered under Section 3.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Security shall be deemed to evidence the same debt
as
the mutilated, destroyed, lost or stolen Security.
“Redemption
Date”, when used with respect to any Security to be redeemed, means the date
fixed for such redemption by or pursuant to this Indenture.
“Redemption
Price”, when used with respect to any Security to be redeemed, means the price
at which it is to be redeemed pursuant to this Indenture.
“Regular
Record Date” for the interest payable on any Interest Payment Date on the
Securities of any series means the date specified for that purpose as
contemplated by Section 3.1.
“Required
Currency” has the meaning specified in Section 1.16.
“Responsible
Officer” when used with respect to the Trustee, means any officer within the
Corporate Trust Administration of the Trustee (or any successor group of the
Trustee) or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above designated officers and also
means, with respect to a particular corporate trust matter, any other officer
to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
“Securities”
has the meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under this
Indenture.
“Security
Register” and “Security Registrar” have the respective meanings specified in
Section 3.5.
“Senior
Debt” means (1) all Debt of the Company, whether currently outstanding or
hereafter issued, unless, by the terms of the instrument creating or evidencing
such Debt, it is provided that such Debt is not superior in right of payment
to
the Securities, and (2) any modifications, refunding, deferrals, renewals or
extensions of any such Debt or securities, notes or other evidence of Debt
issued in exchange for such Debt; provided that in no event shall “Senior Debt”
include (a) Debt of the Company owed or owing to any Subsidiary of the Company
or any officer, director or employee of the Company or any Subsidiary of the
Company, (b) Debt to trade creditors or (c) any liability for taxes owned or
owing by the Company.
“Special
Record Date” for the payment of any Defaulted Interest means a date fixed by the
Trustee pursuant to Section 3.7.
“Stated
Maturity”, when used with respect to any Security or any installment of
principal thereof or interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment
of
principal or interest is due and payable.
“Subsidiary”
means (i) a corporation more than 50% of the outstanding voting stock of which
is owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries or (ii)
any
partnership or similar business organization more than 50% of the ownership
interests having ordinary voting power of which shall at the time be so owned.
For the purposes of this definition, “voting stock” means capital stock or
equity interests which ordinarily have voting power for the election of
directors, whether at all times or only so long as no senior class of stock
has
such voting power by reason of any contingency.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this
instrument until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Trustee” shall mean or
include each Person who is then a Trustee hereunder, and if at any time there
is
more than one such Person, “Trustee” as used with respect to the Securities of
any series shall mean the Trustee with respect to Securities of that
series.
“Trust
Indenture Act” means the Trust Indenture Act of 1939, as amended, as in force at
the date as of which this instrument was executed, except as provided in Section
9.5; provided, however, that if the Trust Indenture Act of 1939 is amended
after
such date, “Trust Indenture Act” means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
“U.S.
Person” shall have the meaning assigned to such term in Section 7701(a)(30) of
the Internal Revenue Code of 1986, as amended.
“U.S.
Government Obligations” means securities which are (i) direct obligations of the
United States for the payment of which its full faith and credit is pledged,
or
(ii) obligations of a Person controlled or supervised by and acting as an agency
or instrumentality of the United States, the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States, each
of
which are not callable or redeemable at the option of the issuer
thereof.
“Vice
President”, when used with respect to the Company, the Guarantor or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title “vice president.”
Section
1.2. Incorporation
by Reference of Trust Indenture Act.
Whenever
this Indenture refers to a provision of the Trust Indenture Act, the provision
is incorporated by reference in and made a part of this Indenture. The following
Trust Indenture Act terms used in this Indenture have the following
meanings:
“commission”
means the Commission.
“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, the Guarantor (if applicable)
or
any other obligor on the indenture securities.
All
terms
used in this Indenture that are defined by the Trust Indenture Act, defined
by a
Trust Indenture Act reference to another statute or defined by a Commission
rule
under the Trust Indenture Act have the meanings so assigned to
them.
Section
1.3. Compliance
Certificates and Opinions.
Upon
any
application or request by the Company or a Guarantor to the Trustee to take
any
action under any provision of this Indenture, the Company or such Guarantor,
as
the case may be, shall furnish to the Trustee an Officer’s Certificate stating
that all conditions precedent, if any, provided for in this Indenture relating
to the proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any,
have
been complied with, except that in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished except as required under
Section 314(c) of the Trust Indenture Act.
Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (except for certificates provided for in Section
10.5) shall include:
(1) a
statement that each individual signing such certificate or opinion has read
such
covenant or condition and the definitions herein relating thereto;
(2) a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;
(3) a
statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a
statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.
Section
1.4. Form
of Documents Delivered to Trustee.
In
any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
Any
certificate or opinion of an officer of the Company or a Guarantor may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows or, in the exercise
of
reasonable care, should know that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based
are
erroneous. Any such certificate or opinion of counsel may be based, insofar
as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company or the Guarantor,
as
the case may be, stating that the information with respect to such factual
matters is in the possession of the Company or the Guarantor, as the case may
be, unless such counsel knows that the certificate or opinion or representations
with respect to such matters are erroneous.
Where
any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one
instrument.
Section
1.5. Acts
of Holders; Record Dates.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders may be
embodied in and evidenced by one or more instruments of substantially similar
tenor signed (either physically or by means of a facsimile or an electronic
transmission, provided that such electronic transmission is transmitted through
the facilities of a Depositary) by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company or
the
Guarantors. Such instrument or instruments (and the action embodied therein
and
evidenced thereby) are herein sometimes referred to as the “Act” of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for
any
purpose of this Indenture and (subject to Section 315 of the Trust Indenture
Act) conclusive in favor of the Trustee, the Company and, if applicable, the
Guarantors, if made in the manner provided in this Section.
(b) The
fact
and date of the execution by any Person of any such instrument or writing may
be
proved by the affidavit of a witness of such execution or by a certificate
of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact
and
date of the execution of any such instrument or writing, or the authority of
the
Person executing the same, may also be proved in any other manner which the
Trustee deems sufficient.
(c) The
ownership, principal amount and serial numbers of Securities held by any Person,
and the date of commencement of such Person’s holding of same, shall be proved
by the Security Register.
(d) Any
request, demand, authorization, direction, notice, consent, waiver or other
Act
of the Holder of any Security shall bind every future Holder of the same
Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee, the Company or,
if
applicable, the Guarantors in reliance thereon, whether or not notation of
such
action is made upon such Security.
(e) Without
limiting the foregoing, a Holder entitled to give or take any action hereunder
with regard to any particular Security may do so with regard to all or any
part
of the principal amount of such Security or by one or more duly appointed agents
each of which may do so pursuant to such appointment with regard to all or
any
different part of such principal amount.
(f) The
Company may set any day as the record date for the purpose of determining the
Holders of Outstanding Securities of any series entitled to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
Act
provided or permitted by this Indenture to be given or taken by Holders of
Securities of such series, but the Company shall have no obligation to do so.
With regard to any record date set pursuant to this paragraph, the Holders
of
Outstanding Securities of the relevant series on such record date (or their
duly
appointed agents), and only such Persons, shall be entitled to give or take
the
relevant action, whether or not such Holders remain Holders after such record
date.
Section
1.6. Notices,
Etc., to Trustee, Company and Guarantors.
Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the
Trustee by any Holder, a Guarantor or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or
with
the Trustee at its Corporate Trust Office, Attention: [Corporate Trust
Department],
(2) the
Company by the Trustee, a Guarantor or by any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to
it
at the address of its principal office specified in the first paragraph of
this
instrument to the attention of the Corporate Secretary, or at any other address
previously furnished in writing to the Trustee by the Company, or
(3) a
Guarantor by the Company, the Trustee or by any Holder shall be sufficient
for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to such Guarantor addressed
to
it at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ to the attention
of
the Corporate Secretary, or at any other address previously furnished in writing
to the Trustee by the Guarantor.
Section
1.7. Notice
to Holders; Waiver.
Where
this Indenture provides for notice to Holders of any event, such notice shall
be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event,
at his address as it appears in the Security Register, not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of
such
notice. In any case where notice to Holders is given by mail, neither the
failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect
to
other Holders. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether
or
not such Holder actually receives such notice.
Where
this Indenture provides for notice in any manner, such notice may be waived
in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers
of
notice by Holders shall be filed with the Trustee, but such filing shall not
be
a condition precedent to the validity of any action taken in reliance upon
such
waiver.
In
case
by reason of the suspension of regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute
a sufficient notification for every purpose hereunder.
Section
1.8. Conflict
with Trust Indenture Act.
If
any
provision hereof limits, qualifies or conflicts with a provision of the Trust
Indenture Act that is required under such Act to be a part of and govern this
Indenture, the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that
may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or excluded, as the case may be.
Section
1.9. Effect
of Headings and Table of Contents.
The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
Section
1.10. Successors
and Assigns.
All
covenants and agreements in this Indenture by each of the Company and the
Guarantors shall bind their respective successors and assigns, whether so
expressed or not.
Section
1.11. Separability
Clause.
In
case
any provision in this Indenture or in the Securities or, if applicable, the
Guarantee shall be invalid, illegal or unenforceable, the validity, legality
and
enforceability of the remaining provisions shall not in any way be affected
or
impaired thereby.
Section
1.12. Benefits
of Indenture.
Nothing
in this Indenture or in the Securities or, if applicable, the Guarantee, express
or implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the holders of Senior Debt and the Holders, any benefit
or
any legal or equitable right, remedy or claim under this Indenture.
Section
1.13. 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.
Section
1.14. Legal
Holidays.
In
any
case where any Interest Payment Date, Redemption Date or Stated Maturity of
any
Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or of the Securities
or,
if applicable, the Guarantee (other than a provision of the Securities of any
series or, if applicable, the Guarantee that specifically states that such
provision shall apply in lieu of this Section 1.14)) payment of interest or
principal and any premium need not be made at such Place of Payment on such
date, but may be made on the next succeeding Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date
or Redemption Date, or at the Stated Maturity, provided that no interest shall
accrue for the period from and after such Interest Payment Date, Redemption
Date
or Stated Maturity, as the case may be.
Section
1.15. Securities
in a Composite Currency, Currency Unit or Foreign Currency.
Unless
otherwise specified in an Officer’s Certificate delivered pursuant to Section
3.1 of this Indenture with respect to a particular series of Securities,
whenever for purposes of this Indenture any action may be taken by the Holders
of a specified percentage in aggregate principal amount of Securities of all
series or all series affected by a particular action at the time Outstanding
and, at such time, there are Outstanding Securities of any series which are
denominated in a coin, currency or currencies other than Dollars (including,
but
not limited to, any composite currency, currency units or Foreign Currency),
then the principal amount of Securities of such series which shall be deemed
to
be Outstanding for the purpose of taking such action shall be that amount of
Dollars that could be obtained for such amount at the Market Exchange Rate.
For
purposes of this Section 1.15, the term “Market Exchange Rate” shall mean the
noon Dollar buying rate in The City of New York for cable transfers of such
currency or currencies as published by the Federal Reserve Bank of New York,
as
of the most recent available date. If such Market Exchange Rate is not so
available for any reason with respect to such currency, the Trustee shall use,
in its sole discretion and without liability on its part, such quotation of
the
Federal Reserve Bank of New York as of the most recent available date, or
quotations or rates of exchange from one or more major banks in The City of
New
York or in the country of issue of the currency in question, which for purposes
of euros shall be Brussels, Belgium, or such other quotations or rates of
exchange as the Trustee shall deem appropriate. The provisions of this paragraph
shall apply in determining the equivalent principal amount in respect of
Securities of a series denominated in a currency other than Dollars in
connection with any action taken by Holders of Securities pursuant to the terms
of this Indenture.
All
decisions and determinations of the Trustee regarding the Market Exchange Rate
or any alternative determination provided for in the preceding paragraph shall
be in its sole discretion and shall, in the absence of manifest error, be
conclusive to the extent permitted by law for all purposes and irrevocably
binding upon the Issuer and all Holders.
Section
1.16. Payment
in Required Currency; Judgment Currency.
Each
of
the Company and the Guarantors agrees, to the fullest extent that it may
effectively do so under applicable law, that (a) if for the purpose of obtaining
judgment in any court it is necessary to convert the sum due in respect of
the
principal of or interest on 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 day on which final
unappealable judgment is entered, unless such day is not a Banking Day, then,
to
the extent permitted by applicable law, 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 Banking Day next preceding the day on which final unappealable
judgment is entered and (b) its obligations under this Indenture to make
payments in the Required Currency (i) shall not be discharged or satisfied
by
any tender, or any recovery pursuant to any judgment (whether or not entered
in
accordance with subclause (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in
the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering
in
the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any
other
sum due under this Indenture.
Section
1.17. Language
of Notices, Etc.
Any
request, demand, authorization, direction, notice, consent, waiver or Act
required or permitted under this Indenture shall be in the English language,
except that any published notice may be in an official language of the country
of publication.
Section
1.18. Incorporators,
Shareholders, Officers and Directors of the Company and the Guarantors Exempt
from Individual Liability.
No
recourse under or upon any obligation, covenant or agreement of or contained
in
this Indenture or of or contained in any Security or, if applicable, the
Guarantee, or for any claim based thereon or otherwise in respect thereof,
or in
any Security or, if applicable, the Guarantee, or because of the creation of
any
indebtedness represented thereby, shall be had against any incorporator,
shareholder, member, officer, manager or director, as such, past, present or
future, of the Company, any Guarantor or any successor Person, either directly
or through the Company, any Guarantor or any successor Person, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, it being expressly understood that all
such
liability is hereby expressly waived and released as a condition of, and as
a
part of the consideration for, the execution of this Indenture and the issue
of
the Securities.
ARTICLE
TWO
SECURITY
FORMS
Section
2.1. Forms
Generally.
The
Securities of each series and, if applicable, the notation thereon relating
to
the Guarantee, shall be in substantially the form set forth in this Article
Two,
or in such other form or forms as shall be established by or pursuant to a
Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations
as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities and, if applicable, the Guarantee, as evidenced by their execution
thereof.
The
definitive Securities shall be printed, lithographed or engraved on steel
engraved borders or may be produced in any other manner, all as determined
by
the officers executing such Securities, as evidenced by their execution thereof.
If the form of Securities of any series is established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall
be
certified by an authorized officer or other authorized person on behalf of
the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 3.3 for the authentication and delivery of such
Securities.
The
forms
of Global Securities of any series shall have such provisions and legends as
are
customary for Securities of such series in global form, including without
limitation any legend required by the Depositary for the Securities of such
series.
Section
2.2. Form
of Face of Security.
[If
the Security is an Original Issue Discount Security, insert—FOR
PURPOSES OF SECTION 1275 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986,
AS
AMENDED, THE AMOUNT OF THE ORIGINAL ISSUE DISCOUNT IS . . . . . . . ., THE
ISSUE
DATE IS . . . . . ., 20. . . [AND] [,] THE YIELD TO MATURITY IS . . . . . .
. .
[,] [AND THE ORIGINAL ISSUE DISCOUNT FOR THE SHORT ACCRUAL PERIOD IS . . .
. . .
. . AND THE METHOD USED TO DETERMINE THE YIELD THEREFOR IS . . . .
.]]
[Insert
any other legend required by the United States Internal Revenue Code or the
regulations thereunder.]
[If
a
Global Security,—insert legend required by Section 204 of the
Indenture]
[If
applicable, insert —UNLESS
THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS IS REQUESTED BY
AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
IS
MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
FRONTIER
OIL CORPORATION
[TITLE
OF
SECURITY]
| No . . . . . . . |
U.S.
$. . . . .
.
|
[CUSIP
No. ]
FRONTIER
OIL CORPORATION, a company duly incorporated under the laws of the State of
Wyoming (herein called the “Company”, which term includes any successor or
resulting Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to .......... . . . . . . . . . . . . . .
. . .
. . . . ., or registered assigns, the principal sum of . . . .
................................................ United States Dollars on
........................................ [If
the Security is to bear interest prior to Maturity, insert—,
and to
pay interest thereon from . . . . . . . . . . or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-annually
on . . . . . . and . . . . . . in each year, commencing . . . . . ., at the
rate
of . . . . % per annum, until the principal hereof is paid or made available
for
payment [if
applicable, insert—,
and at
the rate of ___% per annum on any overdue principal and premium and on any
installment of interest (to the extent that the payment of such interest shall
be legally enforceable)]. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the . . . . or . . . . (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either
be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date
for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than
10
days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice
as
may be required by such exchange, all as more fully provided in said
Indenture].
[If
the Security is not to bear interest prior to Maturity, insert—The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of . . . .% per annum (to the extent that the payment
of
such interest shall be legally enforceable), which shall accrue from the date
of
such default in payment to the date payment of such principal has been made
or
duly provided for. Interest on any overdue principal shall be payable on demand.
Any such interest on any overdue principal that is not so paid on demand shall
bear interest at the rate of . . . . % per annum (to the extent that the payment
of such interest shall be legally enforceable), which shall accrue from the
date
of such demand for payment to the date payment of such interest has been made
or
duly provided for, and such interest shall also be payable on
demand.]
[If
a
Global Security, insert—Payment
of the principal of (and premium, if any) and [if
applicable, insert—any such]
interest on this Security will be made by transfer of immediately available
funds to a bank account in ___________ designated by the Holder in such coin
or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [state other
currency].]
[If
a
Definitive Security, insert—Payment
of the principal of (and premium, if any) and [if
applicable, insert—any
such]
interest on this Security will be made at the office or agency of the Company
maintained for that purpose in _______________, in such coin or currency of
the
United States of America as at the time of payment is legal tender for payment
of public and private debts] [state other currency] [or subject to any laws
or
regulations applicable thereto and to the right of the Company (as provided
in
the Indenture) to rescind the designation of any such Paying Agent, at the
[main] offices of ________________ in _____________, or at such other offices
or
agencies as the Company may designate, by [United States Dollar] [state other
currency] check drawn on, or transfer to a [United States Dollar] account
maintained by the payee with, a bank in The City of New York (so long as the
applicable Paying Agency has received proper transfer instructions in writing
at
least ___ days prior to the payment date)] [if
applicable, insert—;
provided, however, that payment of interest may be made at the option of the
Company by [United States Dollar] [state other currency] check mailed to the
addresses of the Persons entitled thereto as such addresses shall appear in
the
Security Register] [or by transfer to a [United States Dollar] [state other
currency] account maintained by the payee with a bank in The City of New York
[state other Place of Payment] (so long as the applicable Paying Agent has
received proper transfer instructions in writing by the Record Date prior to
the
applicable Interest Payment Date)].]
Reference
is hereby made to the further provisions of this Security set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
Unless
the certificate of authentication hereon has been executed by the Trustee
referred to on the reverse hereof by manual signature, this Security shall
not
be entitled to any benefit under the Indenture or be valid or obligatory for
any
purpose.
IN
WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
FRONTIER
OIL CORPORATION
By:
Section
2.3. Form
of Reverse of Security.
This
Security is one of a duly authorized issue of subordinated securities of the
Company (herein called the “Securities”), issued and to be issued in one or more
series under an Indenture, dated as of _____________ [
],
200__
(herein called the “Indenture”), between the Company, the Guarantors and
[ ],
as
Trustee (herein called the “Trustee”, which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement, of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Guarantors,
the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. As provided in
the
Indenture, the Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest, if any, at different rates, may be subject
to different redemption provisions, if any, may be subject to different sinking,
purchase or analogous funds, if any, may be subject to different covenants
and
Events of Default and may otherwise vary as in the Indenture provided or
permitted. This Security is one of the series designated on the face hereof
[,
limited in aggregate principal amount to $ . . . . . . . . . . ].
This
security is the general, unsecured, subordinated obligation of the Company
[if
applicable, insert—and
is
guaranteed pursuant to a guarantee (the “Guarantee”) by [insert
name of each Guarantor]
(the
“Guarantors”). The Guarantee is the general, unsecured, subordinated obligation
of each Guarantor.]
[If
applicable, insert—The
Securities of this series are subject to redemption upon not less than ...
days’
notice by mail, [if
applicable, insert,
—(1)
on .
. . . . . . . . . . . . . in any year commencing with the year . . . . and
ending with the year . . . . through operation of the sinking fund for this
series at a Redemption Price equal to 100% of the principal amount, and (2)
] at
any time [on or after . . . . . . . . . ., 20. . . ], as a whole or in part,
at
the election of the Company, at the following Redemption Prices (expressed
as
percentages of the principal amount): If redeemed [on or before . . . . . .
. .
. . . . . . . , . . . . . %, and if redeemed] during the 12-month period
beginning . . . . . . . . of the years indicated,
|
Year
|
Redemption
Price
|
Year
|
Redemption
Price
|
and
thereafter at a Redemption Price equal to . . . . . % of the principal amount,
together in the case of any such redemption [if
applicable, insert—(whether
through operation of the sinking fund or otherwise)] with accrued interest
to
the Redemption Date, but interest installments whose Stated Maturity is on
or
prior to such Redemption Date will be payable to the Holders of such Securities,
or one or more Predecessor Securities, of record at the close of business on
the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If
applicable, insert—The
Securities of this series are subject to redemption upon not less than... nor
more than ... days’ notice by mail, (1) on . . . . . . . . in any year
commencing with the year . . . . and ending with the year . . . . through
operation of the sinking fund for this series at the Redemption Prices for
redemption through operation of the sinking fund (expressed as percentages
of
the principal amount) set forth in the table below, and (2) at anytime [on
or
after . . . . . . . . . . ], as a whole or in part, at the election of the
Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below: If redeemed during the 12-month period beginning
.
. . . . . . . . . . . . . of the years indicated,
|
Year
|
Redemption
Price For Redemption Through Operation of the Sinking
Fund
|
Redemption
Price for Redemption Otherwise Than Through Operation of the Sinking
Fund
|
||
and
thereafter at a Redemption Price equal to . . . . % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the
Indenture.]
[If
applicable, insert—Notwithstanding
the foregoing, the Company may not, prior to . . . . . . . . . ., redeem any
Securities of this series as contemplated by [Clause (2) of] the preceding
paragraph as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest
cost
to the Company (calculated in accordance with generally accepted financial
practice) of less than . . . .% per annum.]
[If
applicable, insert—The
sinking fund for this series provides for the redemption on . . . . . . . .
. .
. . in each year beginning with the year . . . . and ending with the year .
. .
. of [not less than] $ . . . . . . . . . . . . [ (“mandatory sinking fund”) and
not more than $ . . . . . . . . . . . . ] aggregate principal amount of
Securities of this series. [Securities of this series acquired or redeemed
by
the Company otherwise than through [mandatory] sinking fund payments may be
credited against subsequent [mandatory] sinking fund payments otherwise required
to be made [If
applicable, insert-—
in the
inverse order in which they become due].]
[If
the Securities are subject to redemption in part of any kind,
insert—In
the
event of redemption of this Security in part only, a new Security or Securities
of this series and of like tenor for the unredeemed portion hereof will be
issued in the name of the Holder hereof upon the cancellation
hereof.]
[If
applicable, insert—The
Securities of this series are not redeemable prior to Stated
Maturity.]
[If
the Security is not an Original Issue Discount Security,—If
an
Event of Default with respect to Securities of this series shall occur and
be
continuing, the principal of the Securities of this series may be declared
due
and payable in the manner and with the effect provided in the
Indenture.]
[If
the Security is an Original Issue Discount Security,—If
an
Event of Default with respect to Securities of this series shall occur and
be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to —insert
formula for determining the amount.
Upon
payment (i) of the amount of principal so declared due and payable and (ii)
of
interest on any overdue principal and overdue interest (in each case to the
extent that the payment of such interest shall be legally enforceable), all
of
the Company’s obligations in respect of the payment of the principal of and
interest, if any, on the Securities of this series shall
terminate.]
The
Indenture permits, with certain exceptions as therein provided, the amendment
thereof and the modification of the rights and obligations of the Company
[If
applicable, insert—and
the
Guarantors] and the rights of the Holders of the Securities of each series
to be
affected under the Indenture at any time by the Company [If
applicable, insert—and
the
Guarantors] and the Trustee with the consent of the Holders of a majority in
principal amount of the Securities at the time Outstanding of each series to
be
affected. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of each series
at
the time Outstanding, on behalf of the Holders of all Securities of such series,
to waive compliance by the Company [If
applicable, insert—and
the
Guarantors] with certain provisions of the Indenture and certain past defaults
under the Indenture and their consequences. Any such consent or waiver by the
Holder of this Security shall be conclusive and binding upon such Holder and
upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this
Security.
No
reference herein to the Indenture and no provision of this Security or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of (and premium, if any) and interest
on
this Security at the times, place(s) and rate, and in the coin or currency,
herein prescribed.
[If
a
Global Security, insert—This
Global Security or portion hereof may not be exchanged for Definitive Securities
of this series except in the limited circumstances provided in the Indenture.
The holders of beneficial interests in this Global Security will not be entitled
to receive physical delivery of Definitive Securities except as described in
the
Indenture and will not be considered the Holders thereof for any purpose under
the Indenture.]
[If
a
Definitive Security, insert—As
provided in the Indenture and subject to certain limitations therein set forth,
the transfer of this Security is registerable in the Security Register, upon
surrender of this Security for registration of transfer at the office or agency
of the Company in [if
applicable, insert—any
place
where the principal of and any premium and interest on this Security are
payable] [if
applicable, insert—The
City
of New York [, or, subject to any laws or regulations applicable thereto and
to
the right of the Company (limited as provided in the Indenture) to rescind
the
designation of any such transfer agent, at the [main] offices of _______________
in ________________ or at such other offices or agencies as the Company may
designate]], duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing,
and
thereupon one or more new Securities of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount, will
be
issued to the designated transferee or transferees.]
The
Securities of this series are issuable only in registered form without coupons
in denominations of U.S. $ . . . . . . . . and any integral multiple thereof.
As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No
service charge shall be made for any such registration of transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
Prior
to
due presentment of this Security for registration of transfer, the Company,
[If
applicable, insert—any
Guarantor,] the Trustee and any agent of the Company [If
applicable, insert—,
a
Guarantor] or the Trustee may treat the Person in whose name this Security
is
registered as the owner hereof for all purposes, whether or not this Security
be
overdue, and none of the Company, [If
applicable, insert—the
Guarantors,] the Trustee nor any such agent shall be affected by notice to
the
contrary.
This
Security is subordinated in right of payment to Senior Debt [If
applicable, insert-and
the
Guarantee is subordinated in right of payment to Guarantor Senior Debt], to
the
extent and in the manner provided in the Indenture.
No
recourse under or upon any obligation, covenant or agreement of or contained
in
the Indenture or of or contained in any Security, [If
applicable, insert—,
or the
Guarantee endorsed thereon,] or for any claim based thereon or otherwise in
respect thereof, or in any Security [If
applicable, insert—or
in the
Guarantee], or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, shareholder, member, officer, manager
or
director, as such, past, present or future, of the Company [If
applicable, insert—or
any
Guarantor] or of any successor Person, either directly or through the Company
[If
applicable, insert—or
any
Guarantor] or any successor Person, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment, penalty or
otherwise; it being expressly understood that all such liability is hereby
expressly waived and released by the acceptance hereof and as a condition of,
and as part of the consideration for, the Securities and the execution of the
Indenture.
The
Indenture provides that the Company [If
applicable, insert—and
the
Guarantors] (a) will be discharged from any and all obligations in respect
of
the Securities (except for certain obligations described in the Indenture),
or
(b) need not comply with certain restrictive covenants of the Indenture, in
each case if the Company [If
applicable, insert—or
a
Guarantor] deposits, in trust, with the Trustee money or U.S. Government
Obligations (or a combination thereof) which through the payment of interest
thereon and principal thereof in accordance with their terms will provide money,
in an amount sufficient to pay all the principal of and interest on the
Securities, but such money need not be segregated from other funds except to
the
extent required by law.
Except
as
otherwise defined herein, all terms used in this Security which are defined
in
the Indenture shall have the meanings assigned to them in the
Indenture.
[If
a
Definitive Security, insert as a separate page—
FOR
VALUE
RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto
_______________________________________________________________
(Please
Print or Typewrite Name and Address of Assignee)
the
within instrument of FRONTIER OIL CORPORATION and does hereby irrevocably
constitute and appoint ___________________ Attorney to transfer said instrument
on the books of the within-named Company, with full power of substitution in
the
premises.
Please
Insert Social Security or Other Identifying Number of Assignee:
Dated:
(Signature)
NOTICE:
The signature to this assignment must correspond with the name as written upon
the face of the within instrument in every particular, without alteration or
enlargement or any change whatever.]
[If
a
Security to which Article Fourteen has been made applicable, insert the
following Form of Notation on such Security relating to the
Guarantee—
Each
of
the Guarantors (which term includes any successor Person in such capacity under
the Indenture), has fully, unconditionally and absolutely guaranteed, to the
extent set forth in the Indenture and subject to the provisions in the
Indenture, the due and punctual payment of the principal of, and premium, if
any, and interest on the Securities and all other amounts due and payable under
the Indenture and the Securities by the Company.
The
obligations of the Guarantors to the Holders of Securities and to the Trustee
pursuant to the Guarantee and the Indenture are expressly set forth in Article
Fourteen of the Indenture and reference is hereby made to the Indenture for
the
precise terms of the Guarantee.
Guarantors:
[NAME
OF
EACH GUARANTOR]
By:
_________________________
__________________________]
Section
2.4. Global
Securities.
Every
Global Security authenticated and delivered hereunder shall bear a legend in
substantially the following form:
THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR
SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY
OR A
NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
EVERY
SECURITY AUTHENTICATED AND DELIVERED UPON REGISTRATION OF TRANSFER OF, OR IN
EXCHANGE FOR OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT
TO
THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
If
Securities of a series are issuable in whole or in part in the form of one
or
more Global Securities, as specified as contemplated by Section 3.1, then,
notwithstanding clause (9) of Section 3.1 and the provisions of Section 3.2,
any
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 the case may be, to reflect
exchanges. Any endorsement of a Global Security to reflect the amount, or any
reduction or increase in the amount, of Outstanding Securities represented
thereby shall be made in such manner and upon instructions given by such Person
or Persons as shall be specified therein or in a Company Order. Subject to
the
provisions of Sections 3.3, 3.4 and 3.5, the Trustee shall deliver and redeliver
any Global Security in the manner and upon instructions given by the Person
or
Persons specified therein or in the applicable Company Order. Any instructions
by the Company with respect to endorsement or delivery or redelivery of a Global
Security shall be in a Company Order (which need not comply with Section 1.3
and
need not be accompanied by an Opinion of Counsel).
The
provisions of the last sentence of Section 3.3 shall apply to any Security
represented by a Global Security if such Security was never issued and sold
by
the Company and the Company delivers to the Trustee the Global Security together
with a Company Order (which need not comply with Section 1.3 and need not be
accompanied by an Opinion of Counsel) with regard to the reduction or increase,
as the case may be, in the principal amount of Securities represented thereby,
together with the written statement contemplated by the last sentence of Section
3.3.
Section
2.5. Form
of Trustee’s Certificate of Authentication.
The
Trustee’s certificate(s) 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.
[
],
as
Trustee
By:
Authorized
Officer
ARTICLE
THREE
THE
SECURITIES
Section
3.1. Amount
Unlimited; Issuable in Series.
The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The
Securities may be issued in one or more series. There shall be established
in or
pursuant to a Board Resolution, and set forth, or determined in the manner
provided, in an Officer’s Certificate, 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 all other Securities and which may be part of a series of Securities
previously issued);
(2) any
limit
upon the aggregate principal amount of the Securities of the series which may
be
authenticated and delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of the series pursuant to Sections 3.4,
3.5, 3.6, 9.6 or 11.7 and except for any Securities which, pursuant to Section
3.3, are deemed never to have been authenticated and delivered
hereunder);
(3) the
Person to whom any interest on a Security of the series shall be payable, if
other than the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest;
(4) the
date
or dates on which the principal of the Securities of the series is payable
or
the method of determination thereof;
(5) the
rate
or rates at which the Securities of the series shall bear interest, if any,
or
the formula, method or provision pursuant to which such rate or rates are
determined, the date or dates from which such interest shall accrue or the
method of determination thereof, the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date for the interest payable
on any Interest Payment Date;
(6) the
place
or places where, subject to the provisions of Section 10.2, the principal of
and
any premium and interest on Securities of the series shall be payable,
Securities of the series may be surrendered for registration of transfer,
Securities of the series may be surrendered for exchange and notices, and
demands to or upon the Company in respect of the Securities of the series and
this Indenture may be served;
(7) the
period or periods within which, the price or prices at which and the terms
and
conditions upon which Securities of the series may be redeemed, in whole or
in
part, at the option of the Company;
(8) the
obligation, if any, of the Company to redeem or purchase Securities of the
series pursuant to any sinking fund or analogous provisions or at the option
of
a Holder thereof and the period or periods within which, the price or prices
at
which and the terms and conditions upon which Securities of the series shall
be
redeemed or purchased, in whole or in part, pursuant to such
obligation;
(9) if
other
than denominations of $1,000 and any integral multiple thereof, the
denominations in which Securities of the series shall be issuable;
(10) whether
payment of principal of and premium, if any, and interest, if any, on the
Securities of the series shall be without deduction for taxes, assessments
or
governmental charges paid by Holders of the series;
(11) if
other
than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 5.2;
(12) if
the
amount of payments of principal of and any premium or interest on the Securities
of the series may be determined with reference to an index, the manner in which
such amounts shall be determined;
(13) if
and as
applicable, that the Securities of the series shall be issuable in whole or
in
part in the form of one or more Global Securities and, in such case, the
Depositary or Depositaries for such Global Security or Global Securities and
any
circumstances other than those set forth in Section 3.5 in which any such Global
Security may be transferred to, and registered and exchanged for Securities
registered in the name of, a Person other than the Depositary for such Global
Security or a nominee thereof and in which any such transfer may be
registered;
(14) any
deletions from, modifications of or additions to the Events of Default set
forth
in Section 5.1 or the covenants of the Company set forth in Article Ten with
respect to the Securities of such series;
(15) whether
and under what circumstances the Company will pay additional amounts on the
Securities of the series held by a Person who is not a U.S. Person in respect
of
any tax, assessment or governmental charge withheld or deducted and, if so,
whether the Company will have the option to redeem the Securities of the series
rather than pay such additional amounts;
(16) if
the
Securities of the series are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Security of such series) only
upon receipt of certain certificates or other documents or satisfaction of
other
conditions, the form and terms of such certificates, documents or
conditions;
(17) if
the
Securities of the series are to be convertible into or exchangeable for any
other security or property of the Company, including, without limitation,
securities of another Person held by the Company or its Affiliates and, if
so,
the terms thereof;
(18) if
other
than as provided in Sections 13.2 and 13.3, the means of defeasance or covenant
defeasance as may be specified for the Securities of the series;
(19) if
other
than the Trustee, the identity of the initial Security Registrar and any initial
Paying Agent;
(20) whether
the Securities of the series will be guaranteed pursuant to the Guarantee set
forth in Article Fourteen, any modifications to the terms of Article Fourteen
applicable to the Securities of such series and the applicability of any other
guarantees; and
(21) any
other
terms of the series (which terms shall not be inconsistent with 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 3.3) set forth, or
determined in the manner provided, in the Officer’s Certificate referred to
above or in any such indenture supplemental hereto.
All
Securities of any one series need not be issued at the same time and, unless
otherwise provided, a series may be reopened, without the consent of the
Holders, for increases in the aggregate principal amount of such series of
Securities and issuances of additional Securities of such series or for the
establishment of additional terms with respect to the Securities of such
series.
If
any of
the terms of the series are established by action taken by or pursuant to a
Board Resolution, a copy of an appropriate record of such action shall be
certified by an authorized officer or other authorized person on behalf of
the
Company and, if applicable, the Guarantors and delivered to the Trustee at
or
prior to the delivery of the Officer’s Certificate setting forth, or providing
the manner for determining, the terms of the series.
With
respect to Securities of a series subject to a Periodic Offering, such Board
Resolution or Officer’s Certificate may provide general terms for Securities of
such series and provide either that the specific terms of particular Securities
of such series shall be specified in a Company Order or that such terms shall
be
determined by the Company and, if applicable, the Guarantors or one or more
agents thereof designated in an Officer’s Certificate, in accordance with a
Company Order.
Section
3.2. Denominations.
The
Securities of each series shall be issuable in registered form without coupons
in such denominations as shall be specified as contemplated by Section 3.1.
In
the absence of any such provisions with respect to the Securities of any series,
the Securities of such series shall be issuable in denominations of $1,000
and
any integral multiple thereof.
Section
3.3. Execution,
Authentication, Delivery and Dating.
The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its Chief Executive Officer, its President, its Chief Financial Officer
or any of its Vice Presidents and need not be attested. The signature of any
of
these officers on the Securities may be manual or facsimile. Any Guarantee
endorsed on the Securities shall be executed on behalf of the applicable
Guarantor by its Chairman of the Board, its Chief Executive Officer, its
President, its Chief Financial Officer or any of its Vice Presidents and need
not be attested.
Securities
and any Guarantee bearing the manual or facsimile signatures of individuals
who
were at any time the proper officers of the Company or a Guarantor, as the
case
may be, shall bind the Company or such Guarantor, as the case may be,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did
not
hold such offices at the date of such Securities.
At
any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Securities of any series executed by the Company to
the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that
in
the case of Securities offered in a Periodic Offering, the Trustee shall
authenticate and deliver such Securities from time to time in accordance with
such other procedures (including, without limitation, the receipt by the Trustee
of oral or electronic instructions from the Company or its duly authorized
agents, thereafter promptly confirmed in writing) acceptable to the Trustee
as
may be specified by or pursuant to a Company Order delivered to the Trustee
prior to the time of the first authentication of Securities of such series.
If
the forms or terms of the Securities of the series have been established in
or
pursuant to one or more Board Resolutions as permitted by Sections 2.1 and
3.1,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive such documents as it may reasonably request. The Trustee
shall also be entitled to receive, and (subject to Section 6.1) shall be fully
protected in relying upon, an Opinion of Counsel stating,
(a) if
the
form or forms of such Securities has been established in or pursuant to a Board
Resolution as permitted by Section 2.1, that each such form has been established
in conformity with the provisions of this Indenture;
(b) if
the
terms of such Securities have been, or in the case of Securities of a series
offered in a Periodic Offering will be, established in or pursuant to a Board
Resolution as permitted by Section 3.1, that such terms have been, or in the
case of Securities of a series offered in a Periodic Offering will be,
established in conformity with the provisions of this Indenture, subject, in
the
case of Securities of a series offered in a Periodic Offering, to any conditions
specified in such Opinion of Counsel; and
(c) that
such
Securities when authenticated and delivered by the Trustee and issued by the
Company in the manner and subject to any conditions and assumptions specified
in
such Opinion of Counsel, will constitute valid and legally binding obligations
of the Company and, if applicable, the Guarantors, enforceable in accordance
with their terms, subject to the following limitations: (i) bankruptcy,
insolvency, moratorium, reorganization, liquidation, fraudulent conveyance
or
transfer and other similar laws of general applicability relating to or
affecting the enforcement of creditors’ rights, or to general equity principles,
(ii) the availability of equitable remedies being subject to the discretion
of
the court to which application therefor is made; and (iii) such other usual
and
customary matters as shall be specified in such Opinion of Counsel.
If
such
form or forms or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee’s own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding
the provisions of Section 3.1 and of the preceding paragraph, if all Securities
of a series are not to be originally issued at one time, it shall not be
necessary to deliver the Officer’s Certificate otherwise required pursuant to
Section 3.1 or the Company Order and Opinion of Counsel otherwise required
pursuant to such preceding paragraph at or prior to the time of authentication
of each Security of such series if such documents are delivered at or prior
to
the authentication upon original issuance of the first Security of such series
to be issued.
With
respect to Securities of a series offered in a Periodic Offering, the Trustee
may rely, as to the authorization by the Company of any of such Securities,
on
the form or forms and terms thereof and the legality, validity, binding effect
and enforceability thereof, upon the Opinion of Counsel and the other documents
delivered pursuant to Sections 2.1 and 3.1 and this Section, as applicable,
in
connection with the first authentication of Securities of such
series.
Each
Security shall be dated the date of its authentication.
No
Security, nor any Guarantee endorsed thereon, shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there
appears on such Security a certificate of authentication substantially in the
form provided for herein executed by the Trustee by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated
and
delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in
Section 3.9 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.
Section
3.4. Temporary
Securities.
Pending
the preparation of Definitive Securities of any series, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the tenor
of the Definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If
temporary Securities of any series are issued, the Company will cause Definitive
Securities of that series to be prepared without unreasonable delay. After
the
preparation of Definitive Securities of such series, the temporary Securities
of
such series shall be exchangeable for Definitive Securities of such series
upon
surrender of the temporary Securities of such series at the office or agency
of
the Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of
any
series the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor a like principal amount of Definitive Securities of the
same series and tenor of authorized denominations. Until so exchanged the
temporary Securities of any series shall in all respects be entitled to the
same
benefits under this Indenture as Definitive Securities of such
series.
Section
3.5. Registration,
Registration of Transfer and Exchange.
The
Company shall cause to be kept at the office or agency of the Company in the
Borough of Manhattan, the City of New York or in any other office or agency
of
the Company in a Place of Payment required by Section 10.2 a register (the
register maintained in such office being herein sometimes referred to as the
“Security Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Securities and
of
transfers of Securities. The Trustee is hereby appointed as the initial
“Security Registrar” for the purpose of registering Securities and transfers of
Securities as herein provided and its corporate trust office, which, at the
date
hereof, is located at
[
], [New York, New York]
[ ],
is the
initial office or agency in the Borough of Manhattan where the Securities
Register will be maintained. The Company may at any time replace such Security
Registrar, change such office or agency or act as its own Security Registrar.
The Company will give prompt written notice to the Trustee of any change of
the
Security Registrar or of the location of such office or agency.
Upon
surrender for registration of transfer of any Security of any series at the
office or agency maintained pursuant to Section 10.2 for such purpose, the
Company and, if applicable, the Guarantors shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities, with an endorsement of the Guarantee,
if applicable, executed by the Guarantors, of the same series and tenor, of
any
authorized denominations and of a like aggregate principal amount.
At
the
option of the Holder, Securities of any series (except a Global Security) may
be
exchanged for other Securities of the same series and tenor, of any authorized
denominations and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at such office or agency. Whenever any Securities
are
so surrendered for exchange, the Company and, if applicable, the Guarantors
shall execute and the Trustee shall authenticate and deliver, the Securities,
with an endorsement of the Guarantee, if applicable, executed by the Guarantors,
which the Holder making the exchange is entitled to receive.
All
Securities issued upon any registration of transfer or exchange of Securities
shall be the valid obligations of the Company and, if applicable, the Guarantors
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer
or
exchange.
Every
Security presented or surrendered for registration of transfer or for exchange
shall (if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed, by the Holder thereof or
his
attorney duly authorized in writing.
No
service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover
any
tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 3.4, 9.6 or 11.7 not involving any transfer.
The
Company shall not be required (i) to issue, register the transfer of or exchange
Securities of any series during a period beginning at, the opening of business
15 days before the day of the mailing of a notice of redemption of Securities
of
that series selected for redemption under Section 11.3 and ending at the close
of business on the day of such mailing, or (ii) to register the transfer of
or
exchange any Security so selected for redemption in whole or in part, except
the
unredeemed portion of any Security being redeemed in part.
Notwithstanding
any other provisions of this Indenture and except as otherwise specified with
respect to any particular series of Securities as contemplated by Section 3.1,
a
Global Security representing all or a portion of the Securities of a series
may
not be transferred, except as a whole by the Depositary for such series to
a
nominee of such Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or any such nominee
to a successor Depositary for such series or a nominee of such successor
Depositary. Every Security authenticated and delivered upon registration of,
transfer of, or in exchange for or in lieu of, a Global Security shall be a
Global Security except as provided in the two paragraphs immediately
following.
If
at any
time the Depositary for any Securities of a series represented by one or more
Global Securities notifies the Company that it is unwilling or unable to
continue as Depositary for such Securities or if at any time the Depositary
for
such Securities shall no longer be eligible to continue as Depositary under
Section 3.1 or ceases to be a clearing agency registered under the Exchange
Act,
the Company shall appoint a successor Depositary with respect to such
Securities. If a successor Depositary for such Securities is not appointed
by
the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company’s election pursuant to Section 3.1 that
such Securities be represented by one or more Global Securities shall no longer
be effective and the Company and, if applicable, the Guarantors will execute
and
the Trustee, upon receipt of a Company Order for the authentication and delivery
of Definitive Securities of such series, will authenticate and deliver,
Securities, with an endorsement of the Guarantee, if applicable, executed by
the
Guarantors, of such series in definitive registered form without coupons, in
any
authorized denominations, in an aggregate principal amount equal to the
principal amount of the Global Security or Securities representing such
Securities in exchange for such Global Security or Securities registered in
the
names of such Persons as the Depositary shall direct.
The
Company may at any time and in its sole discretion determine that the Securities
of any series issued in the form of one or more Global Securities shall no
longer be represented by a Global Security or Securities. In such event the
Company and, if applicable, the Guarantors will execute and the Trustee, upon
receipt of a Company Order for the authentication and delivery of the Definitive
Securities of such series, will authenticate and deliver, Securities, with
an
endorsement of the Guarantee, if applicable, executed by the Guarantors, of
such
series in definitive registered form without coupons, in any authorized
denominations, in an aggregate principal amount equal to the principal amount
of
the Global Security or Securities representing such Securities in exchange
for
such Global Security or Securities registered in the names of such Persons
as
the Depositary shall direct.
If
specified by the Company pursuant to Section 3.1 with respect to Securities
represented by a Global Security, the Depositary for such Global Security may
surrender such Global Security in exchange in whole or in part for Securities
of
the same series and tenor in definitive registered form on such terms as are
acceptable to the Company and such Depositary. Thereupon, the Company and,
if
applicable, the Guarantors shall execute, and the Trustee, upon receipt of
a
Company Order for the authentication and delivery of Securities in definitive
registered form, shall authenticate and deliver, without service
charge,
(1) to
the
Person specified by such Depositary a new Security or Securities, with an
endorsement of the Guarantee, if applicable, executed by the Guarantors, of
the
same series and tenor, of any authorized denominations as requested by such
Person, in an aggregate principal amount equal to and in exchange for such
Person’s beneficial interest in the Global Security; and
(2) to
such
Depositary a new Global Security, with an endorsement of the Guarantee, if
applicable, executed by the Guarantors, in a denomination equal to the
difference, if any, between the principal amount of the surrendered Global
Security and the aggregate principal amount of Securities authenticated and
delivered pursuant to clause (1) above.
Every
Person who takes or holds any beneficial interest in a Global Security agrees
that:
(a) the
Company, the Guarantors (if applicable) and the Trustee may deal with the
Depositary as sole owner of the Global Security and as the authorized
representative of such Person;
(b) such
Person’s rights in the Global Security shall be exercised only through the
Depositary and shall be limited to those established by law and agreement
between such Person and the Depositary and/or direct and indirect participants
of the Depositary;
(c) the
Depositary and its participants make book-entry transfers of beneficial
ownership among, and receive and transmit distributions of principal and
interest on the Global Securities to, such Persons in accordance with their
own
procedures; and
(d) none
of
the Company, the Guarantors (if applicable), the Trustee, nor any agent of
any
of them will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of
a
Global Security or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
Section
3.6. Mutilated,
Destroyed, Lost and Stolen Securities.
If
any
mutilated Security is surrendered to the Trustee, together with, in proper
cases, such security or indemnity as may be required by the Company, the
Guarantors (if applicable) or the Trustee to save each of them and any agent
of
any of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security, with an
endorsement of the Guarantee, if applicable, executed by the Guarantors, of
the
same series and of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
If
there
shall be delivered to the Company, the Guarantors (if applicable) and the
Trustee (i) evidence to their satisfaction of the destruction, loss or
theft of any Security and (ii) such security or indemnity as may be required
by
them to save each of them and any agent of either of them harmless, then, in
the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company and, if applicable, the
Guarantors shall execute and upon its request the Trustee shall authenticate
and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security,
with an endorsement of the Guarantee, if applicable, executed by the Guarantors,
of the same series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.
In
case
any such mutilated, destroyed, lost or stolen Security has become or is about
to
become due and payable, the Company in its discretion may, instead of issuing
a
new Security, pay such Security.
Upon
the
issuance of any new Security under this Section, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees
and expenses of the Trustee) connected therewith.
Every
new
Security of any series issued pursuant to this Section in lieu of any destroyed,
lost or stolen Security shall constitute an original additional contractual
obligation of the Company and, if applicable, the Guarantors, whether or not
the
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series duly issued
hereunder.
The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities.
Section
3.7. Payment
of Interest; Interest Rights Preserved.
Except
as
otherwise provided as contemplated by Section 3.1 with respect to any series
of
Securities, interest on any Security which is payable, and is punctually paid
or
duly provided for, on any Interest Payment Date shall be paid to the Person
in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such
interest.
Any
interest on any Security of any series which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
“Defaulted Interest”) shall forthwith cease to be payable to the Holder on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case,
as
provided in clause (1) or (2) below:
(1) The
Company may elect to make payment of any Defaulted Interest to the Persons
in
whose names the Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date
for
the payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security of such series and
the
date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed
to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon, the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed payment
of
such Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series at
his
address as it appears in the Security Register, not less than 10 days prior
to
such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed, such
Defaulted Interest shall be paid to the Persons in whose names the Securities
of
such series (or their respective Predecessor Securities) are registered at
the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The
Company may make payment of any Defaulted Interest on the Securities of any
series in any other lawful manner not inconsistent with the requirements of
any
securities exchange on which such Securities may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the Company
to
the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject
to the foregoing provisions of this Section, each Security delivered under
this
Indenture upon registration of transfer of or in exchange for or in lieu of
any
other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section
3.8. Persons
Deemed Owners.
Except
as
otherwise provided as contemplated by Section 3.1 with respect to any series
of
Securities, prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and, if applicable, the Guarantors and any agent
thereof may treat the Person in whose name such Security is registered as the
owner of such Security for the purpose of receiving payment of principal of
and
any premium and (subject to Sections 3.5 and 3.7) any interest on such Security
and for all other purposes whatsoever, whether or not such Security be overdue,
and none of the Company, the Trustee nor, if applicable, the Guarantors nor
any
agent of any of them shall be affected by notice to the contrary.
No
holder
of any beneficial interest in any Global Security held on its behalf by a
Depositary shall have any rights under this Indenture with respect to such
Global Security, and such Depositary may be treated by the Company, the Trustee,
and, if applicable, the Guarantors and any agent of thereof as the owner of
such
Global Security for all purposes whatsoever.
Section
3.9. Cancellation.
All
Securities surrendered for payment, redemption, registration of transfer or
exchange or for credit against any sinking fund payment shall, if surrendered
to
any Person other than the Trustee, be delivered to the Trustee and shall be
promptly canceled by it. The Company may at any time deliver to the Trustee
for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver
to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
canceled by the Trustee. No Securities shall be authenticated in lieu of or
in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of in accordance with its customary practices, and
the
Trustee shall thereafter deliver to the Company a certificate with respect
to
such disposition.
Section
3.10. Computation
of Interest.
Except
as
otherwise specified as contemplated by Section 3.1 for Securities of any series,
interest on the Securities of each series shall be computed on the basis of
a
year of twelve 30-day months.
Section
3.11. CUSIP
or CINS Numbers.
The
Company in issuing the Securities may use “CUSIP” or “CINS” numbers (if then
generally in use, and in addition to the other identification numbers printed
on
the Securities), and, if so, the Trustee shall use “CUSIP” or “CINS” numbers in
notices of redemption as a convenience to Holders; provided, however, that
any
such notice may state that no representation is made as to the correctness
of
such “CUSIP” or “CINS” numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only
on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such “CUSIP” or
“CINS” numbers.
ARTICLE
FOUR
SATISFACTION
AND DISCHARGE
Section
4.1. Satisfaction
and Discharge of Indenture.
This
Indenture shall cease to be of further effect with respect to the Securities
of
any series (except as to any surviving rights of registration of transfer or
exchange of Securities herein expressly provided for), and the Trustee, upon
Company Request and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with
respect to such Securities, when:
(1) either
(a) all
such
Securities theretofore authenticated and delivered (other than (i) such
Securities which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.6, and (ii) such Securities for whose
payment money has theretofore been deposited in trust or segregated and held
in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.3) have been delivered to the Trustee
for cancellation; or
(b) all
such
Securities not theretofore delivered to the Trustee for
cancellation
(1) have
become due and payable, or
(2) will
become due and payable at their Stated Maturity within one year, or
(3) are
to be
called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name,
and
at the expense, of the Company,
and
the
Company, in the case of (1), (2) or (3) above, has deposited or caused to be
deposited with the Trustee as trust funds in trust for such purpose an amount
sufficient to pay and discharge the entire indebtedness on such Securities
not
theretofore delivered to the Trustee for cancellation, for principal (and
premium, if any) and interest to the date of such deposit (in the case of
Securities which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the
Company has paid or caused to be paid all other sums payable hereunder by the
Company with respect to such Securities; and
(3) the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture with respect to such
Securities have been complied with.
Notwithstanding
the satisfaction and discharge of this Indenture with respect to the Securities
of any series, (x) the obligations of the Company to the Trustee under Section
6.7, the obligations of the Trustee to any Authenticating Agent under Section
6.14 and the right of the Trustee to resign under Section 6.10 shall survive,
and (y) if money shall have been deposited with the Trustee pursuant to clause
(1) of this Section, the obligations of the Company and the Trustee under
Section 4.2, 6.6 and 10.2 and the last paragraph of Section 10.3 shall
survive.
Section
4.2. Application
of Trust Money.
Subject
to the provisions of the last paragraph of Section 10.3, all money deposited
with the Trustee pursuant to Section 4.1 shall be held in trust and applied
by
it, in accordance with the provisions of the Securities and this Indenture,
to
the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and any premium and interest for whose
payment such money has been deposited with the Trustee.
ARTICLE
FIVE
REMEDIES
Section
5.1. Events
of Default.
“Event
of
Default”, wherever used herein with respect to Securities of any series, means
any one of the following events (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation
of
law or pursuant to any judgment, decree or order of any court or any order,
rule
or regulation of any administrative or governmental body):
(1) default
in the payment of any interest upon any Security of that series when it becomes
due and payable, and continuance of such default for a period of 30 days
(whether or not such payment is prohibited by the provisions of Article Fifteen
hereof); or
(2) default
in the payment of the principal of (or premium, if any, on) any Security of
that
series at its Maturity (whether or not such payment is prohibited by the
provisions of Article Fifteen hereof); or
(3) default
in the performance, or breach, of any covenant set forth in Article Ten in
this
Indenture (other than a covenant a default in whose performance or whose breach
is elsewhere in this Section specifically dealt with or which has expressly
been
included in this Indenture solely for the benefit of series of Securities other
than that series), and continuance of such default or breach for a period of
90
days after there has been given, by registered or certified mail, to the Company
by the Trustee or to the Company and the Trustee by the Holders of at least
25%
in principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be remedied and
stating that such notice is a “Notice of Default” hereunder; or
(4) default
in the performance, or breach, of any covenant in this Indenture (other than
a
covenant in Article Ten or any other covenant a default in whose performance
or
whose breach is elsewhere in this Section specifically dealt with or which
has
expressly been included in this Indenture solely for the benefit of series
of
Securities other than that series), and continuance of such default or breach
for a period of 180 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities of
that series a written notice specifying such default or breach and requiring
it
to be remedied and stating that such notice is a “Notice of Default” hereunder;
or
(5) the
Company pursuant to or within the meaning of any Bankruptcy Law
(a) commences a voluntary case, (b) consents to the entry of any order for
relief against it in an involuntary case, (c) consents to the appointment of
a
Custodian of it or for all or substantially all of its property, or (d) makes
a
general assignment for the benefit of its creditors; or
(6) a
court
of competent jurisdiction enters an order or decree under any Bankruptcy Law
that (a) is for relief against the Company in an involuntary case, (b) appoints
a Custodian of the Company or for all or substantially all of its property,
or
(c) orders the liquidation of the Company; and the order or decree remains
unstayed and in effect for 90 consecutive days; or
(7) default
in the deposit of any sinking fund payment when due; or
(8) any
other
Event of Default provided with respect to Securities of that series in
accordance with Section 3.1.
Section
5.2. Acceleration
of Maturity; Rescission and Annulment.
If
an
Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then in every such case the Trustee or
the
Holders of a specified percentage in aggregate principal amount of the
Outstanding Securities of that series may declare the principal amount (or,
if
the Securities of that series are Original Issue Discount Securities, such
portion of the principal amount as may be specified in the terms of that series)
of all of the Securities of that series to be due and payable immediately,
by a
notice in writing to the Company (and to the Trustee if given by Holders),
and
upon any such declaration such principal amount (or specified amount) shall
become immediately due and payable. Notwithstanding the foregoing, if an Event
of Default specified in clause (5) or (6) of Section 5.1 occurs, the
Securities of any series at the time Outstanding shall be due and payable
immediately without further action or notice.
At
any
time after such a declaration of acceleration with respect to Securities of
any
series has been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter in this Article Five
provided, the Holders of a majority in principal amount of the Outstanding
Securities of that series, by written notice to the Company and the Trustee,
may
rescind and annul such declaration and its consequences if:
(1) the
Company or, if applicable, one or more of the Guarantors has paid or deposited
with the Trustee a sum sufficient to pay:
(a) all
overdue interest on all Securities of that series,
(b) the
principal of (and premium, if any, on) any Securities of that series which
have
become due otherwise than by such declaration of acceleration and any interest
thereon at the rate or rates prescribed therefor in such
Securities,
(c) to
the
extent that payment of such interest is lawful, interest upon overdue interest
at the rate or rates prescribed therefor in such Securities, and
(d) all
sums
paid or advanced by the Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel;
and
(2) all
Events of Default with respect to Securities of that series, other than the
non-payment of the principal of Securities of that series which have become
due
solely by such declaration of acceleration, have been cured or waived as
provided in Section 5.13.
No
such
rescission shall affect any subsequent default or impair any right consequent
thereon.
Section
5.3. Collection
of Indebtedness and Suits for Enforcement by Trustee.
The
Company covenants that if:
(1) default
is made in the payment of any installment of interest on any Security when
such
interest becomes due and payable and such default continues for a period of
60
days (whether or not such payment is prohibited by the provisions of Article
Fifteen hereof), or
(2) default
is made in the payment of the principal of (or premium, if any, on) any Security
at the Maturity thereof (whether or not such payment is prohibited by the
provisions of Article Fifteen hereof),
the
Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and any premium and interest and, to the extent that
payment of such interest shall be legally enforceable, interest on any overdue
principal and any premium and on any overdue interest, at the rate or rates
prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances
of
the Trustee, its agents and counsel.
If
the
Company fails to pay such amounts forthwith upon such demand, the Trustee,
in
its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, may prosecute
such
proceeding to judgment or final decree and may enforce the same against the
Company or, if applicable, the Guarantors or any other obligor upon such
Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or, if applicable,
the
Guarantors or any other obligor upon such Securities, wherever
situated.
If
an
Event of Default with respect to Securities of any series occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its
rights and the rights of the Holders of Securities of such series by such
appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of
any
covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section
5.4. Trustee
May File Proofs of Claim.
In
case
of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or, if applicable, any Guarantor or any
other
obligor upon the Securities, their property or their creditors, the Trustee
(irrespective of whether the principal of the Securities shall then be due
and
payable as therein expressed or by declaration or otherwise and irrespective
of
whether the Trustee shall have made any demand on the Company or, if applicable,
the Guarantors for the payment of overdue principal or interest) shall be
entitled and empowered, by intervention in such proceeding or
otherwise,
(i) to
file
and prove a claim for the whole amount of principal (and premium, if any) and
interest owing and unpaid in respect of the Securities and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and
(ii) to
collect and receive any moneys or other property payable or deliverable on
any
such claims and to distribute the same;
and
any
custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, if the Trustee shall consent
to
the making of such payments directly to the Holders, to pay to the Trustee
any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due
the
Trustee under Section 6.7.
No
provision of this Indenture 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, compromise, arrangement, adjustment or composition affecting
the
Securities or, if applicable, the Guarantee or the rights of any Holder thereof
or to authorize the Trustee to vote in respect of the claim of any Holder in
any
such proceeding; provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar official
and be a member of a creditors’ or other similar committee.
Section
5.5. Trustee
May Enforce Claims Without Possession of Securities.
All
rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and
any
such proceeding instituted by the Trustee shall be brought in its own name
as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit
of
the Holders of the Securities in respect of which such judgment has been
recovered.
Section
5.6. Application
of Money Collected.
Any
money
collected by the Trustee pursuant to this Article Five shall be applied in
the
following order, at the date or dates fixed by the Trustee and, in case of
the
distribution of such money on account of principal or any premium or interest,
upon presentation of the Securities and the notation thereon of the payment
if
only partially paid and upon surrender thereof if fully paid:
FIRST:
To
the payment of all amounts due the Trustee under Section 6.7;
SECOND:
Subject to Article Fifteen, to the payment of the amounts then due and unpaid
for principal of and any premium and interest on the Securities in respect
of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due and
payable on such Securities for principal and any premium and interest,
respectively; and
THIRD:
The balance, if any, to the Company.
Section
5.7. Limitation
on Suits.
No
Holder
of any Security of any series shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture (including, if applicable,
the Guarantee), or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:
(1) such
▇▇▇▇▇▇ has previously given written notice to the Trustee of a continuing Event
of Default with respect to the Securities of that series;
(2) the
Holders of not less than 25% in principal amount of the Outstanding Securities
of that series shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee
hereunder;
(3) such
Holder or Holders have offered to the Trustee reasonable indemnity against
the
costs, expenses and liabilities to be incurred in compliance with such
request;
(4) the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and
(5) no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Holders of a majority in principal amount
of
the Outstanding Securities of that series;
it
being
understood and intended that no one or more of such Holders shall have any
right
in any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or preference over any
other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all such
Holders.
Section
5.8. Unconditional
Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding
any other provision in this Indenture, the Holder of any Security shall have
the
right, which is absolute and unconditional, to receive payment of the principal
of and any premium and (subject to Sections 3.5 and 3.7) interest on such
Security on the Stated Maturity or Maturities expressed in such Security (or,
in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired without
the consent of such Holder.
Section
5.9. Restoration
of Rights and Remedies.
If
the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Guarantors, the Trustee and the Holders shall
be
restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section
5.10. Rights
and Remedies Cumulative.
Except
as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities in the last paragraph of Section 3.6,
no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section
5.11. Delay
or Omission Not Waiver.
To
fullest extent permitted by applicable law, no delay or omission of the Trustee
or of any Holder of any Securities to exercise any right or remedy accruing
upon
any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right
and
remedy given by this Article Five or by law to the Trustee or to the Holders
may
be exercised from time to time, and as often as may be deemed expedient, by
the
Trustee or by the Holders, as the case may be.
Section
5.12. Control
by Holders.
The
Holders of not less than a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee,
or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series; provided, however, that:
(1) such
direction shall not be in conflict with any rule of law or with this
Indenture;
(2) the
Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction; and
(3) subject
to the provisions of Section 6.1, the Trustee shall have the right to decline
to
follow any such direction if the Trustee in good faith shall determine that
the
proceeding so directed would involve the Trustee in personal
liability.
Section
5.13. Waiver
of Past Defaults.
The
Holders of not less than a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities
of
such series waive any past default hereunder with respect to such series and
its
consequences, except:
(1) a
continuing default in the payment of the principal of or any premium or interest
on any Security of such series, or
(2) a
default
in respect of a covenant or provision hereof which under Article Nine cannot
be
modified or amended without the consent of the Holder of each Outstanding
Security of such series affected.
Upon
any
such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture, but no such waiver shall extend to any subsequent or other default
or
impair any right consequent thereon.
Section
5.14. Undertaking
for Costs.
All
parties to this Indenture agree, and each Holder of any Security by his
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant, other
than the Trustee, in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys’ fees, against any party litigant in such suit, having due
regard to the merits and good faith of the claims or defenses made by such
party
litigant; but (1) the provisions of this Section 5.14 shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding in the aggregate
more than 10% in principal amount of the Outstanding Securities of any series,
or to any suit instituted by any Holder for the enforcement of the payment
of
the principal of (or premium, if any) or interest on any Security on or after
the Stated Maturity or Maturities expressed in such Security (or, in the case
of
redemption, on or after the Redemption Date).
Section
5.15. Waiver
of Stay or Extension 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
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and each of the Company and
the
Guarantors (to the extent that it may lawfully do so) hereby expressly waives
all benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such
law
had been enacted.
ARTICLE
SIX
THE
TRUSTEE
Section
6.1. Certain
Duties and Responsibilities.
(a) Except
during the continuance of an Event of Default,
(1) the
Trustee undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture and as are provided by the Trust
Indenture Act, and, except for implied covenants or obligations under the Trust
Indenture Act, no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in
the
absence of bad faith on its part, the Trustee may conclusively rely, as to
the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this
Indenture.
(b) In
case
an Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would exercise
or
use under the circumstances in the conduct of his own affairs.
(c) No
provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or
its
own willful misconduct, except that
(1) this
Subsection shall not be construed to limit the effect of Subsection (a) of
this
Section;
(2) the
Trustee shall not be liable for any error of judgment made in good faith by
a
Responsible Officer, unless it shall be proved that the Trustee was negligent
in
ascertaining the pertinent facts;
(3) the
Trustee shall not be liable with respect to any action taken or omitted to
be
taken by it in good faith in accordance with the direction of the Holders of
a
majority in principal amount of the Outstanding Securities of any series, given
pursuant to Section 5.12, relating to the time, method and place of conducting
any proceeding for any remedy available to the Trustee, or exercising any trust
or power conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; and
(4) no
provision of this Indenture shall require the Trustee to expend or risk its
own
funds or otherwise incur any financial liability in the performance of any
of
its duties hereunder, or in the exercise of any of its rights or powers, if
it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to
it.
(d) Whether
or not therein expressly so provided, every provision of this Indenture relating
to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section.
Section
6.2. Notice
of Defaults.
Within
90
days after the occurrence of any Default hereunder with respect to the
Securities of any series, the Trustee shall transmit by mail to all Holders
of
Securities of such series, as their names and addresses appear in the Security
Register, notice of such Default hereunder known to the Trustee, unless such
Default shall have been cured or waived; provided, however, that, except in
the
case of a Default in the payment of the principal of or any premium or interest
on any Security of such series or in the payment of any sinking fund installment
with respect to Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of
the
Trustee in good faith determine that the withholding of such notice is in the
interest of the Holders of Securities of such series; and, provided, further,
that in the case of any Default of the character specified in Section 5.1(3)
with respect to Securities of such series, no such notice to Holders shall
be
given until at least 90 days after the occurrence thereof and that in the case
of any Default of the character specified in Section 5.1(4) with respect to
Securities of such series, no such notice to Holders shall be given until at
least 180 days after the occurrence thereof.
Section
6.3. Certain
Rights of Trustee.
Subject
to the provisions of Section 6.1:
(a) the
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by
it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any
request or direction of the Company or a Guarantor mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security to the Trustee for authentication and delivery pursuant
to Section 3.3, which shall be sufficiently evidenced as provided therein)
and
any resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever
in the administration of this Indenture the Trustee shall deem it desirable
that
a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) shall be entitled to receive and may, in the absence of bad faith
on
its part, rely upon an Officer’s Certificate;
(d) the
Trustee may consult with counsel and the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in respect
of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Holders
pursuant to this Indenture, unless such Holders shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such request or
direction;
(f) the
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or
attorney;
(g) the
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee
shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder and shall not be
responsible for the supervision of officers and employees of such agents or
attorneys;
(h) the
Trustee may request that the Company and, if applicable, the Guarantors deliver
an Officer’s Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officer’s Certificate may be signed by any person authorized to
sign an Officer’s Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded;
and
(i) the
Trustee shall be entitled to the rights and protections afforded to the Trustee
pursuant to this Article Six in acting as a Paying Agent or Security Registrar
hereunder.
Section
6.4. Not
Responsible for Recitals or Issuance of Securities.
The
recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the Company
or, if applicable, the Guarantors, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. Neither the Trustee nor any
Authenticating Agent makes any representations as to the validity or sufficiency
of this Indenture or of the Securities. The Trustee or any Authenticating Agent
shall not be accountable for the use or application by the Company of Securities
or the proceeds thereof.
Section
6.5. May
Hold Securities.
The
Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar
or
any other agent of the Company or, if applicable, any Guarantor, in its
individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 310(b) and 311 of the Trust Indenture Act and Sections
6.8, 6.9 and 6.13, may otherwise deal with the Company or, if applicable, the
Guarantors with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other
agent.
Section
6.6. Money
Held in Trust.
Money
held by the Trustee in trust hereunder need not be segregated from other funds
except to the extent required by law. The Trustee shall be under no liability
for interest on any money received by it hereunder except as otherwise agreed
in
writing with the Company or, if applicable, one or more of the
Guarantors.
Section
6.7. Compensation
and Reimbursement.
The
Company agrees:
(1) to
pay to
the Trustee from time to time reasonable compensation for all services rendered
by it hereunder (which compensation shall not be limited by any provision of
law
in regard to the compensation of a trustee of an express trust);
(2) except
as
otherwise expressly provided herein, to reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by
the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(3) to
indemnify each of the Trustee and its officers, directors, agents and employees
for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or willful misconduct on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of any of
its
powers or duties hereunder.
As
security for the performance of the obligations of the Company under this
Section the Trustee shall have a lien prior to the Securities upon all property
and funds held or collected by the Trustee as such, except funds held in trust
for the payment of principal of (and premium, if any) or interest on particular
Securities.
Without
limiting any rights available to the Trustee under applicable law, when the
Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 5.1(5) or Section 5.1(6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services of the Trustee are intended to constitute expenses
of administration under any applicable Bankruptcy Law.
The
provisions of this Section 6.7 shall survive the satisfaction and discharge
of
this Indenture and the defeasance of the Securities.
Section
6.8. Disqualification;
Conflicting Interests.
Reference
is made to Section 310(b) of the Trust Indenture Act. There shall be excluded
from the operation of Section 310(b)(1) of the Trust Indenture Act this
Indenture with respect to the Securities of more than one series.
Section
6.9. Corporate
Trustee Required; Eligibility.
There
shall at all times be a Trustee hereunder which shall be a corporation organized
and doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus required by the
Trust Indenture Act, subject to supervision or examination by Federal or State
authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. The
Trustee shall not be an obligor upon the Securities or an Affiliate thereof.
If
at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article Six.
Section
6.10. Resignation
and Removal; Appointment of Successor.
(a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 6.11.
(b) The
Trustee may resign at any time with respect to the Securities of one or more
series by giving written notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 6.11 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The
Trustee may be removed at any time with respect to the Securities of any series
by Act of the Holders of a majority in principal amount of the Outstanding
Securities of such series, delivered to the Trustee and to the
Company.
(d) If
at any
time:
(1) the
Trustee shall fail to comply with Section 310(b) of the Trust Indenture Act
after written request therefor by the Company or by any Holder who has been
a
bona fide Holder of a Security for at least six months, or
(2) the
Trustee shall cease to be eligible under Section 6.9 and shall fail to resign
after written request therefor by the Company or by any such Holder,
or
(3) the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed
or
any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (i) the Company by a Board Resolution
may
remove the Trustee with respect to all Securities, or (ii) subject to Section
5.14, any Holder who has been a bona fide Holder of a Security for at least
six
months may, on behalf of himself and all others similarly situated, petition
any
court of competent jurisdiction for the removal of the Trustee with respect
to
all Securities and the appointment of a successor Trustee or
Trustees.
(e) If
the
Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, with respect to the
Securities of one or more series, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee or Trustees with respect to the Securities
of that or those series (it being understood that any such successor Trustee
may
be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the
Securities of any particular series) and shall comply with the applicable
requirements of Section 6.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee
with respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such
series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in
accordance with the applicable requirements of Section 6.11, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
required by Section 6.11, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction
for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The
Company shall give notice of each resignation and each removal of the Trustee
with respect to the Securities of any series and each appointment of a successor
Trustee with respect to the Securities of any series to all Holders of
Securities of such series in the manner provided in Section 1.7. Each notice
shall include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
Section
6.11. Acceptance
of Appointment by Successor.
(a) In
case
of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee so appointed shall execute, acknowledge
and deliver to the Company, the Guarantors (if applicable) and to the retiring
Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee; but, on
the
request of the Company or, if applicable, any Guarantor or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute
and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) In
case
of the appointment hereunder of a successor Trustee with respect to the
Securities of one or more (but not all) series, the Company, the Guarantors
(if
applicable), the retiring Trustee and each successor Trustee with respect to
the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to
all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as
to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of
a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery
of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company, any Guarantor (if
applicable) or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon
request of any such successor Trustee, the Company and, if applicable, the
Guarantors shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers
and
trusts referred to in paragraph (a) or (b) of this Section, as the case may
be.
(d) No
successor Trustee shall accept its appointment unless at the time of such
acceptance such successor Trustee shall be qualified and eligible under this
Article and the Trust Indenture Act.
Section
6.12. Merger,
Conversion, Consolidation or Succession to Business.
Any
corporation into which the Trustee may be merged or converted or with which
it
may be consolidated, or any corporation resulting from any merger, conversion
or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article Six,
without the execution or filing of any paper or any further act on the part
of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such
Securities.
Section
6.13. Preferential
Collection of Claims Against Company.
Reference
is made to Section 311 of the Trust Indenture Act. For purposes of Section
311(b) of the Trust Indenture Act,
(1) the
term
“cash transaction” means any transaction in which full payment for goods or
securities sold is made within seven days after delivery of the goods or
securities in currency or in checks or other orders drawn upon banks or bankers
and payable upon demand;
(2) the
term
“self-liquidating paper” means any draft, bill of exchange, acceptance or
obligation which is made, drawn, negotiated or incurred by the Company or,
if
applicable, any Guarantor for the purpose of financing the purchase, processing,
manufacturing, shipment, storage or sale of goods, wares or merchandise and
which is secured by documents evidencing title to, possession of, or a lien
upon, the goods, wares or merchandise or the receivables or proceeds arising
from the sale of the goods, wares or merchandise previously constituting the
security, provided the security is received by the Trustee simultaneously with
the creation of the creditor relationship with the Company or, if applicable,
such Guarantor arising from the making, drawing, negotiating or incurring of
the
draft, bill of exchange, acceptance or obligation.
Section
6.14. Appointment
of Authenticating Agent.
The
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof or pursuant to
Section 3.6, and Securities so authenticated shall be entitled to the
benefits of this Indenture and shall be valid and obligatory for all purposes
as
if authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the
Trustee’s certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf
of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized
and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $100,000,000
and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus
as
set forth in its most recent report of condition so published. If at any time
an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any
corporation into which an Authenticating Agent may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which such Authenticating Agent shall be a party,
or any corporation succeeding to all or substantially all of the corporate
agency or corporate trust business of an Authenticating Agent, shall continue
to
be an Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or
any
further act on the part of the Trustee or the Authenticating Agent.
An
Authenticating Agent may resign at any time by giving written notice thereof
to
the Trustee and to the Company and, if applicable, the Guarantors. The Trustee
may at any time terminate the agency of an Authenticating Agent by giving
written notice thereof to such Authenticating Agent and to the Company and,
if
applicable, the Guarantors. Upon receiving such a notice of resignation or
upon
such a termination, or in case at any time such Authenticating Agent shall
cease
to be eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable to the
Company and, if applicable, the Guarantors and shall mail written notice of
such
appointment by first-class mail, postage prepaid, to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve, as
their names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions
of
this Section.
Except
with respect to an Authenticating Agent appointed at the request of the Company
or, if applicable, the Guarantors, the Trustee agrees to pay to each
Authenticating Agent from time to time reasonable compensation for its services
under this Section 6.14, and the Trustee shall be entitled to be reimbursed
by
the Company or, if applicable, the Guarantors for such payments, subject to
the
provisions of Section 6.7.
If
an
appointment with respect to one or more series is made pursuant to this Section
6.14, the Securities of such series may have endorsed thereon, in addition
to
the Trustee’s certificate of authentication, an alternate certificate of
authentication in the following form:
|
This
is one of the Securities of the series designated therein referred
to in
the within-mentioned Indenture.
|
[
],
As
Trustee
By:
As
Authenticating Agent
By:
Authorized
Officer
ARTICLE
SEVEN
HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section
7.1. Company
to Furnish Trustee Names and Addresses of Holders.
The
Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually,
not more than 15 days after each Regular Record Date for a series of Securities,
a list for such series of Securities, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Securities of such series
as of such Regular Record Date, and
(b) at
such
other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content
as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that if and so long as the Trustee shall be the Security
Registrar, no such list need be furnished with respect to such series of
Securities.
Section
7.2. Preservation
of Information; Communications to Holders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable,
the
names and addresses of Holders contained in the most recent list furnished
to
the Trustee as provided in Section 7.1 and the names and addresses of Holders
received by the Trustee in its capacity as Security Registrar. The Trustee
may
destroy any list furnished to it as provided in Section 7.1 upon receipt of
a
new list so furnished.
(b) If
three
or more Holders (herein referred to as “applicants”) apply in writing to the
Trustee, and furnish to the Trustee reasonable proof that each such applicant
has owned a Security for a period of at least six months preceding the date
of
such application, and such application states that the applicants desire to
communicate with other Holders with respect to their rights under this Indenture
or under the Securities and is accompanied by a copy of the form of proxy or
other communication which such applicants propose to transmit, then the Trustee
shall, within five business days after the receipt of such application, at
its
election, either
|
(i)
|
afford
such applicants access to the information preserved at the time by
the
Trustee in accordance with Section 7.2(a),
or
|
|
(ii)
|
inform
such applicants as to the approximate number of Holders whose names
and
addresses appear in the information preserved at the time by the
Trustee
in accordance with Section 7.2(a) , and as to the approximate cost
of
mailing to such Holders the form of proxy or other communication,
if any,
specified in such application.
|
If
the
Trustee shall elect not to afford such applicants access to such information,
the Trustee shall, upon the written request of such applicants, mail to each
Holder whose name and address appear in the information preserved at the time
by
the Trustee in accordance with Section 7.2(a) a copy of the form of proxy or
other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material
to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interest of the Holders
or
would be in violation of applicable law. Such written statement shall specify
the basis of such opinion. If the Commission, after opportunity for a hearing
upon the objections specified in the written statement so filed, shall enter
an
order refusing to sustain any of such objections or if, after the entry of
an
order sustaining one or more of such objections, the Commission shall find,
after notice and opportunity for hearing, that all the objections so sustained
have been met and shall enter an order so declaring, the Trustee shall mail
copies of such material to all such Holders with reasonable promptness after
the
entry of such order and the renewal of such tender; otherwise the Trustee shall
be relieved of any obligation or duty to such applicants respecting their
application.
(c) Every
Holder of Securities, by receiving and holding the same, agrees with the
Company, the Guarantors (if applicable) and the Trustee that none of the
Company, the Guarantors (if applicable) nor the Trustee nor any agent of any
of
them shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with
Section 7.2(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 7.2(b).
Section
7.3. Reports
by Trustee.
Any
Trustee’s report required pursuant to Section 313(a) of the Trust Indenture Act
shall be dated as of May 15, and shall be transmitted within 60 days after
May
15 of each year (but in all events at intervals of not more than 12 months),
commencing with the year 2003, by mail to all Holders, as their names and
addresses appear in the Security Register. A copy of each such report shall,
at
the time of such transmission to Holders, be filed by the Trustee with each
stock exchange upon which any Securities are listed, with the Commission and
with the Company. The Company will notify the Trustee when any Securities are
listed on any stock exchange.
Section
7.4. Reports
by Company.
The
Company shall:
(a) file
with
the Trustee, within 15 days after the Company is required to file the same
with
the Commission, copies of the annual reports and of the information, documents
and other reports (or copies of such portions of any of the foregoing as the
Commission may from time to time by rules and regulations prescribe) which
the
Company may be required to file with the Commission pursuant to Section 13
or
Section 15(d) of the Exchange Act; or, if the Company is not required to
file information, documents or reports pursuant to either of said Sections,
then
it shall file with the Trustee and the Commission, in accordance with rules
and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Exchange Act in respect of a security
listed and registered on a national securities exchange as may be prescribed
from time to time in such rules and regulations;
(b) file
with
the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information,
documents and reports with respect to compliance by the Company with the
conditions and covenants of this Indenture as may be required from time to
time
by such rules and regulations; and
(c) transmit
by mail to all Holders, as their names and addresses appear in the Security
Register, within 30 days after the filing thereof with the Trustee, such
summaries of any information, documents and reports required to be filed by
the
Company pursuant to clauses (a) and (b) of this Section as may be required
by
rules and regulations prescribed from time to time by the
Commission.
ARTICLE
EIGHT
CONSOLIDATION,
AMALGAMATION, MERGER AND SALE
Section
8.1. Company
May Consolidate, Etc., Only on Certain Terms.
The
Company shall not consolidate or merge with or into any other Person or sell,
convey, transfer, lease or otherwise dispose of all or substantially all of
the
properties and assets of the Company and, if applicable, the Guarantors on
a
consolidated basis to any other Person unless:
(1) the
Person formed by such consolidation or merger (if other than the Company) or
the
Person which acquires by sale, conveyance, transfer or other disposition, or
which leases, such properties and assets shall be a corporation and shall
expressly assume, by an indenture supplemental hereto, executed and delivered
to
the Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of and any premium and interest on all the Securities and
the
performance or observance of every other covenant of this Indenture on the
part
of the Company to be performed or observed and shall have expressly provided
for
conversion rights in respect of any series of Outstanding Securities with
conversion rights;
(2) immediately
after giving effect to such transaction, no Event of Default, and no event
which, after notice or lapse of time or both, would become an Event of Default,
shall have occurred and be continuing; and
(3) the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that such consolidation, amalgamation, merger, conveyance,
sale, transfer or lease and such supplemental indenture, if any, comply with
this Article Eight and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section
8.2. Successor
Substituted.
Upon
any
consolidation or merger of the Company with or into any other Person or any
sale, conveyance, transfer, lease or other disposition of all or substantially
all of the properties and assets of the Company and, if applicable, the
Guarantors on a consolidated basis in accordance with Section 8.1, the successor
or resulting Person formed by or resulting upon such consolidation or merger
(if
other than the Company) or to which such sale, conveyance, transfer, lease
or
other disposition is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and thereafter, except in the case of a lease, the predecessor Company and
each
of the Guarantors shall be relieved of all obligations and covenants under
this
Indenture and the Securities.
ARTICLE
NINE
SUPPLEMENTAL
INDENTURES
Section
9.1. Supplemental
Indentures Without Consent of Holders.
Without
the consent of any Holders, the Company, when authorized by a Board Resolution,
the Guarantors and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to
evidence the succession of another Person to the Company and the assumption
by
any such successor of the covenants of the Company herein and in the Securities;
or
(2) to
add a
Guarantee and cause any Person to become a Guarantor, and/or to evidence the
succession of another Person to a Guarantor and the assumption by any such
successor of the Guarantee of such Guarantor herein and, to the extent
applicable, endorsed upon any Securities; or
(3) to
add to
the covenants of the Company such further covenants, restrictions, conditions
or
provisions as the Company shall consider to be appropriate for the benefit
of
the Holders of all or any series of Securities (and if such covenants,
restrictions, conditions or provisions 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 and to make the occurrence, or the
occurrence and continuance, of a Default in any such additional covenants,
restrictions, conditions or provisions an Event of Default permitting the
enforcement of all or any of the several remedies provided in this Indenture
as
herein set forth; provided, that in respect of any such additional covenant,
restriction, condition or provision such supplemental indenture may provide
for
a particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an
immediate enforcement upon such an Event of Default or may limit the remedies
available to the Trustee upon such an Event of Default or may limit the right
of
the Holders of a majority in aggregate principal amount of the Securities of
such series to waive such an Event of Default; or
(4) to
add
any additional Defaults or Events of Default in respect of all or any series
of
Securities; or
(5) to
add
to, change or eliminate any of the provisions of this Indenture to such extent
as shall be necessary to permit or facilitate the issuance of Securities in
bearer form, registrable or not registrable as to principal, and with or without
interest coupons; or
(6) 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 Security
Outstanding of any series created prior to the execution of such supplemental
indenture which is entitled to the benefit of such provision; or
(7) to
secure
the Securities of any series; or
(8) to
establish the form or terms of Securities of any series as permitted by
Sections 2.1 and 3.1, including to reopen any series of any Securities as
permitted under Section 3.1; or
(9) 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 6.11(b); or
(10) to
cure
any ambiguity, to correct or supplement any provision herein which may be
inconsistent with any other provision herein, to comply with any applicable
mandatory provision of law or to make any other provisions with respect to
matters or questions arising under this Indenture which shall not adversely
affect the interests of the Holders of Securities of any series in any material
respect; or
(11) to
modify, eliminate or add to the provisions of this Indenture to such extent
as
shall be necessary to effect the qualification of this Indenture under the
Trust
Indenture Act or under any similar federal statute subsequently enacted, and
to
add to this Indenture such other provisions as may be expressly required under
the Trust Indenture Act.
The
Trustee is hereby authorized to join with the Company and any Guarantor in
the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage, charge or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.
Section
9.2. Supplemental
Indentures with Consent of Holders.
With
the
consent of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities of all series affected by such supplemental
indenture, by Act of said Holders delivered to the Company, the Guarantors
and
the Trustee, the Company, when authorized by a Board Resolution, the Guarantor
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent of the Holder of each Outstanding Security affected
thereby,
(1) change
the Stated Maturity of the principal of, or any installment of principal of
or
interest on, any Security, or reduce the principal amount thereof or the rate
of
interest thereon or any premium payable upon the redemption thereof, or reduce
the amount of the principal of an Original Issue Discount Security that would
be
due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.2, or change any Place of Payment where, or the coin
or
currency in which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption,
on or after the Redemption Date), or
(2) reduce
the percentage in principal amount of the Outstanding Securities of any series,
the consent of whose Holders is required for any such supplemental indenture,
or
the consent of whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify
any of the provisions of this Section 9.2, Section 5.13 or Section 10.6, except
to increase any such percentage or to provide that certain other provisions
of
this Indenture cannot be modified or waived without the consent of the Holder
of
each Outstanding Security affected thereby, provided, however, that this clause
(3) shall not be deemed to require the consent of any Holder with respect to
changes in the references to “the Trustee” and concomitant changes in this
Section, or the deletion of this proviso, in accordance with the requirements
of
Sections 6.11(b) and 9.1(9).
A
supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It
shall
not be necessary for any Act of Holders under this Section 9.2 to approve the
particular form of any proposed supplemental indenture, but it shall be
sufficient if such Act shall approve the substance thereof.
Section
9.3. Execution
of Supplemental Indentures.
In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 6.1) shall be fully protected in relying upon, an Opinion
of
Counsel stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee may, but shall not be obligated
to,
enter into any such supplemental indenture which affects the Trustee’s own
rights, duties or immunities under this Indenture or otherwise.
Section
9.4. Effect
of Supplemental Indentures.
Upon
the
execution of any supplemental indenture under this Article Nine, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall
form a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
Section
9.5. Conformity
with Trust Indenture Act.
Every
supplemental indenture executed pursuant to this Article Nine shall conform
to
the requirements of the Trust Indenture Act as then in effect.
Section
9.6. Reference
in Securities to Supplemental Indentures.
Securities
of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article Nine may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared
and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
ARTICLE
TEN
COVENANTS
Section
10.1. Payment
of Principal, Premium and Interest.
The
Company covenants and agrees for the benefit of each series of Securities that
it will duly and punctually pay the principal of and any premium and interest
on
the Securities of that series in accordance with the terms of the Securities
and
this Indenture.
Section
10.2. Maintenance
of Office or Agency.
The
Company will maintain an office or agency where Securities of that series may
be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Securities of that series
and
this Indenture may be served. The Company will give prompt written notice to
the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at
the
Corporate Trust Office of the Trustee.
The
Company may also from time to time designate one or more other offices or
agencies where the Securities of one or more series may be presented or
surrendered for any or all such purposes and may from time to time rescind
such
designations. 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.
Except
as
otherwise specified with respect to a series of Securities as contemplated
by
Section 3.1, the Company hereby initially designates as the Place of Payment
for
each series of Securities The City and State of New York, and initially appoints
the Trustee at its Corporate Trust Office as the Company’s office or agency for
each such purpose in such city.
Section
10.3. Money
for Securities Payments to Be Held in Trust.
If
the
Company shall at any time act as its own Paying Agent, with respect to any
series of Securities, it will, on or before each due date of the principal
of
and any premium or interest on any of the Securities of that series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever
the Company shall have one or more Paying Agents for any series of Securities,
it will, prior to each due date of the principal of and any premium or interest
on any Securities of that series, deposit with a Paying Agent a sum sufficient
to pay the principal and any premium or interest so becoming due, such sum
to be
held in trust for the benefit of the Persons entitled to such principal, premium
or interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act. For purposes
of
this Section 10.3, should a due date for principal of and any premium or
interest on, or sinking fund payment with respect to any series of Securities
not be on a Business Day, such payment shall be due on the next Business Day
without any interest for the period from the due date until such Business
Day.
The
Company will cause each Paying Agent for any series of Securities other than
the
Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section,
that such Paying Agent will:
(1) hold
all
sums held by it for the payment of the principal of and any premium or interest
on Securities of that series in trust for the benefit of the Persons entitled
thereto until such sums shall be paid to such Persons or otherwise disposed
of
as herein provided;
(2) give
the
Trustee notice of any Default by the Company (or any other obligor upon the
Securities of that series) in the making of any payment of principal and any
premium or interest on the Securities of that series; and
(3) at
any
time during the continuance of any such Default, upon the written request of
the
Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying
Agent.
The
Company and, if applicable, the Guarantors may at any time, for the purpose
of
obtaining the satisfaction and discharge of this Indenture or for any other
purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to be
held
by the Trustee upon the same trusts as those upon which such sums were held
by
the Company or such Paying Agent; and, upon such payment by any Paying Agent
to
the Trustee, such Paying Agent shall be released from all further liability
with
respect to such money.
Subject
to any applicable escheat or abandoned property laws, any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for
the
payment of the principal of and any premium or interest on any Security of
any
series and remaining unclaimed for one year after such principal and any premium
or interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of
the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in
a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in the Borough of Manhattan, The City
of
New York, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
Section
10.4. Existence.
Subject
to Article Eight, the Company and, if any Securities of a series to which
Article Fourteen has been made applicable are Outstanding, each Guarantor will
do or cause to be done all things necessary to preserve and keep in full force
and effect its existence, rights (charter and statutory) and franchises;
provided, however, that the Company and, if applicable, each Guarantor shall
not
be required to preserve any such right or franchise if the Board of Directors
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company or such Guarantor, as the case may
be.
Section
10.5. Statement
by Officers as to Default.
Annually,
within 150 days after the close of each fiscal year beginning with the first
fiscal year during which one or more series of Securities are Outstanding,
the
Company and, if any Securities of a series to which Article Fourteen has been
made applicable are Outstanding, each Guarantor will deliver to the Trustee
a
brief certificate (which need not include the statements set forth in Section
1.3) from the principal executive officer, principal financial officer or
principal accounting officer of the Company and, if applicable, such Guarantor
as to his or her knowledge of the Company’s or such Guarantor’s, as the case may
be, compliance (without regard to any period of grace or requirement of notice
provided herein) with all conditions and covenants under the Indenture and,
if
the Company or such Guarantor, as the case may be, shall be in Default,
specifying all such Defaults and the nature and status thereof of which such
officer has knowledge.
Section
10.6. Waiver
of Certain Covenants.
The
Company may omit in any particular instance to comply with any term, provision
or condition set forth in this Article Ten (other than the preceding Sections
10.1 through 10.5) with respect to the Securities of any series if before the
time for such compliance the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities of all affected series (voting
as
one class) shall, by Act of such Holders, either waive such compliance in such
instance or generally waive compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force
and
effect.
A
waiver
which changes or eliminates any term, provision or condition of this Indenture
which has expressly been included solely for the benefit of one or more
particular series of Securities, or which modifies the rights of the Holders
of
Securities of such series with respect to such term, provision or condition,
shall be deemed not to affect the rights under this Indenture of the Holders
of
Securities of any other series.
Section
10.7. Additional
Amounts.
If
the
Securities of a series provide for the payment of additional amounts (as
provided in Section 3.1(15)), at least 10 days prior to the first Interest
Payment Date with respect to that series of Securities and at least 10 days
prior to each date of payment of principal of, premium, if any, or interest
on
the Securities of that series if there has been a change with respect to the
matters set forth in the below-mentioned Officer’s Certificate, the Company
shall furnish to the Trustee and the principal Paying Agent, if other than
the
Trustee, an Officer’s Certificate instructing the Trustee and such Paying Agent
whether such payment of principal of, premium, if any, or interest on the
Securities of that series shall be made to holders of the Securities of that
series without withholding or deduction for or on account of any tax, assessment
or other governmental charge described in the Securities of that series. If
any
such withholding or deduction shall be required, then such Officer’s Certificate
shall specify by country the amount, if any, required to be withheld or deducted
on such payments to such holders and shall certify the fact that additional
amounts will be payable and the amounts so payable to each holder, and the
Company shall pay to the Trustee or such Paying Agent the additional amounts
required to be paid by this Section. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by
any
of them in reliance on any Officer’s Certificate furnished pursuant to this
Section 10.7.
Whenever
in this Indenture there is mentioned, in any context, the payment of the
principal of or any premium, interest or any other amounts on, or in respect
of,
any Securities of any series, such mention shall be deemed to include mention
of
the payment of additional amounts provided by the terms of such series
established hereby or pursuant hereto to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof pursuant
to
such terms, and express mention of the payment of additional amounts (if
applicable) in any provision hereof shall not be construed as excluding the
payment of additional amounts in those provisions hereof where such express
mention is not made.
ARTICLE
ELEVEN
REDEMPTION
OF SECURITIES
Section
11.1. Applicability
of Article.
Securities
of any series which are redeemable before their Stated Maturity shall be
redeemable in accordance with their terms and (except as otherwise specified
as
contemplated by Section 3.1 for Securities of any series) in accordance with
this Article Eleven.
Section
11.2. Election
to Redeem; Notice to Trustee.
The
election of the Company to redeem any Securities shall be evidenced by a Board
Resolution. In case of any redemption at the election of the Company of less
than all the Securities of any series, the Company shall, at least 15 days
prior
to the last date for the giving of notice of such redemption (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to
be
redeemed and, if applicable, of the tenor of the Securities to be redeemed.
In
the case of any redemption of Securities (a) prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture or (b) pursuant to an election of the Company that
is subject to a condition specified in the terms of the Securities of the series
to be redeemed, the Company shall furnish the Trustee with an Officer’s
Certificate evidencing compliance with such restriction or
condition.
Section
11.3. Selection
by Trustee 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 and of a specified tenor are to be redeemed), the
particular Securities to be redeemed shall be selected not more than 45 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities
of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The
Trustee shall promptly notify the Company in writing of the Securities selected
for redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed. If the Securities
of
any series to be redeemed consist of Securities having different dates on which
the principal is payable or different rates of interest, or different methods
by
which interest may be determined or have any other different tenor or terms,
then the Company may, by written notice to the Trustee, direct that the
Securities of such series to be redeemed shall be selected from among the groups
of such Securities having specified tenor or terms and the Trustee shall
thereafter select the particular Securities to be redeemed in the manner set
forth in the preceding paragraph from among the group of such Securities so
specified.
For
all
purposes of this Indenture, unless the context otherwise requires, all
provisions relating to the redemption of Securities shall relate, in the case
of
any Securities redeemed or to be redeemed only in part, to the portion of the
principal amount of such Securities which has been or is to be
redeemed.
Section
11.4. Notice
of Redemption.
Notice
of
redemption shall be given by first-class mail, postage prepaid, mailed not
less
than 30 nor more than 60 days prior to the Redemption Date, to each Holder
of
Securities to be redeemed, at his address appearing in the Security
Register.
All
notices of redemption shall state:
(1) the
Redemption Date,
(2) the
Redemption Price, or if not then ascertainable, the manner of calculation
thereof,
(3) if
less
than all the Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amounts)
of the particular Securities to be redeemed,
(4) that
on
the Redemption Date the Redemption Price will become due and payable upon each
such Security to be redeemed and, if applicable, that interest thereon will
cease to accrue on and after said date,
(5) the
place
or places where such Securities are to be surrendered for payment of the
Redemption Price, and
(6) that
the
redemption is for a sinking fund, if such is the case.
Notice
of
redemption of Securities to be redeemed at the election of the Company shall
be
given by the Company or, at the Company’s request, by the Trustee in the name
and at the expense of the Company.
Section
11.5. Deposit
of Redemption Price.
Prior
to
any Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and
hold
in trust as provided in Section 10.3) an amount of money sufficient to pay
the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities which are to be redeemed
on that date.
Section
11.6. Securities
Payable on Redemption Date.
Notice
of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified, and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security
for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that unless otherwise specified with respect
to Securities of any series as contemplated in Section 3.1, installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall
be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.7.
If
any
Security called for redemption shall not be so paid upon surrender thereof
for
redemption, the principal (and premium, if any) shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the
Security.
Section
11.7. Securities
Redeemed in Part.
Any
Security which is to be redeemed only in part shall be surrendered at a Place
of
Payment therefor (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to
the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and tenor, of any
authorized denomination as requested by such ▇▇▇▇▇▇, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal
of
the Security so surrendered.
ARTICLE
TWELVE
SINKING
FUNDS
Section
12.1. Applicability
of Article.
The
provisions of this Article Twelve shall be applicable to any sinking fund for
the retirement of Securities of a series except as otherwise specified as
contemplated by Section 3.1 for Securities of such series.
The
minimum amount of any sinking fund payment provided for by the terms of
Securities of any series is herein referred to as a “mandatory sinking fund
payment”, and any payment in excess of such minimum amount provided for by the
terms of Securities of any series is herein referred to as an “optional sinking
fund payment.” If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided
in Section 12.2. Each sinking fund payment shall be applied to the redemption
of
Securities of any series as provided for by the terms of Securities of such
series.
Section
12.2. Satisfaction
of Sinking Fund Payments with Securities.
The
Company (a) may deliver Outstanding Securities of a series (other than any
previously called for redemption) and (b) may apply as a credit Securities
of a
series which have been redeemed either at the election of the Company pursuant
to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case
in
satisfaction of all or any part of any sinking fund payment with respect to
the
Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series; provided that such
Securities have not been previously so credited. Such Securities shall be
received and credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section
12.3. Redemption
of Securities for Sinking Fund.
Not
less
than 45 days prior to each sinking fund payment date for any series of
Securities (unless a shorter period shall be satisfactory to the Trustee),
the
Company will deliver to the Trustee an Officer’s Certificate specifying the
amount of the next ensuing sinking fund payment for that series pursuant to
the
terms of that series, the portion thereof, if any, which is to be satisfied
by
payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting Securities of that series pursuant to Section 12.2
and
stating the basis for such credit and that such Securities have not been
previously so credited, and will also deliver to the Trustee any Securities
to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 11.3 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 11.4. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in
the
manner stated in Sections 11.6 and 11.7.
ARTICLE
THIRTEEN
DEFEASANCE
Section
13.1. Applicability
of Article.
The
provisions of this Article shall be applicable to each series of Securities
except as otherwise specified as contemplated by Section 3.1 for Securities
of
such series.
Section
13.2. Legal
Defeasance.
In
addition to discharge of the Indenture pursuant to Section 4.1, the Company
shall be deemed to have paid and discharged the entire indebtedness on all
the
Securities of such a series on the 91st day after the date of the deposit
referred to in clause (1) below (and the Trustee, at the expense of the Company,
shall upon a Company Request execute proper instruments acknowledging same),
and
the provisions of this Indenture with respect to the Securities of such series
shall no longer be in effect, except for the following which shall survive
until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
Outstanding Securities of such series to receive, solely from the trust fund
described in Section 13.4 and as more fully set forth in such Section, payments
in respect of the principal of and any premium and interest on such Securities
when such payments are due, (B) the Company’s obligations with respect to such
Securities under Sections 3.4, 3.5, 3.6, 10.2 and 10.3, (C) the rights, powers,
trusts, duties, and immunities of the Trustee hereunder and (D) this Article
Thirteen, if the conditions set forth below are satisfied (hereinafter,
“defeasance”):
(1) The
Company has irrevocably deposited or caused to be deposited with the Trustee
(or
another trustee satisfying the requirements of Section 6.9 who shall agree
to
comply with the provisions of this Article Thirteen applicable to it) as trust
funds in trust for the purposes of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders
of
the Securities of such series (i) cash in an amount, or (ii) in the case of
any
series of Securities the payments on which may only be made in legal coin or
currency of the United States, U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of
any
payment, cash in an amount, or (iii) a combination thereof, sufficient, in
the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge (a) the principal of and any premium and interest on and each
installment of principal of and any premium and interest on the Outstanding
Securities of such series on the Stated Maturity of such principal or
installment of principal or interest, as the case may be, or on any Redemption
Date established pursuant to clause (3) below, and (b) any mandatory sinking
fund or analogous payments on the dates on which such payments are due and
payable in accordance with the terms of the Indenture and the Securities of
such
series;
(2) The
Company has delivered to the Trustee an Opinion of Counsel based on the fact
that (a) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (b) since the date hereof, there has
been
a change in the applicable federal income tax law, in either case to the effect
that, and such opinion shall confirm that, the holders of the Securities of
such
series will not recognize income, gain or loss for federal income tax purposes
as a result of such deposit and defeasance and will be subject to federal income
tax on the same amount and in the same manner and at the same times, as would
have been the case if such deposit and defeasance had not occurred;
(3) If
the
Securities are to be redeemed prior to Stated Maturity (other than from
mandatory sinking fund payments or analogous payments), notice of such
redemption shall have been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee shall have been made;
(4) No
Default or Event of Default shall have occurred and be continuing on the date
of
such deposit;
(5) Such
defeasance shall be effected in compliance with any additional terms, conditions
or limitations which may be imposed on the Company in connection therewith
pursuant to Section 3.1; and
(6) The
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to
the
defeasance contemplated by this provision have been complied with.
For
this
purpose, such defeasance means that the Company, the Guarantors (if applicable)
and any other obligor upon the Securities of such series shall be deemed to
have
paid and discharged the entire debt represented by the Securities of such
series, which shall thereafter be deemed to be “Outstanding” only for the
purposes of Section 13.4 and the rights and obligations referred to in clauses
(A) through (D), inclusive, of the first paragraph of this Section 13.2, and
to
have satisfied all its other obligations under the Securities of such series
and
this Indenture insofar as the Securities of such series are
concerned.
Notwithstanding
the foregoing, if an Event of Default specified in Subsection 5.1(5) or 5.1(6),
or an event which with lapse of time would become such an Event of Default,
shall occur during the period ending on the 91st day after the date of the
deposit referred to in clause (1) or, if longer, ending on the day following
the
expiration of the longest preference period applicable to the Company in respect
of such deposit, then, effective upon such occurrence, the defeasance pursuant
to this Section 13.2 and such deposit shall be rescinded and annulled, and
the
Company, the Guarantors (if applicable), the Trustee and the Holders of the
Securities of such series shall be restored to their former
positions.
Section
13.3. Covenant
Defeasance.
The
Company, the Guarantors (if applicable) and any other obligor, if any, shall
be
released from their respective obligations under Sections 7.4, 8.1 and 10.4
with
respect to the Securities of any series on and after the date the conditions
set
forth below are satisfied (hereinafter, “covenant defeasance”), and the
Securities of such series shall thereafter be deemed to be not “Outstanding” for
the purposes of any request, demand, authorization, direction, notice, waiver,
consent or declaration or other action or Act of Holders (and the consequences
of any thereof) in connection with such covenants, but shall continue to be
deemed Outstanding for all other purposes hereunder. For this purpose, such
covenant defeasance means that, with respect to the Securities of such series,
the Company may omit to comply with and shall have no liability in respect
of
any term, condition or limitation set forth in any such Section, whether
directly or indirectly by reason of any reference elsewhere herein to such
Section or by reason of any reference in such Section to any other provision
herein or in any other document and such omission to comply shall not constitute
a Default or an Event of Default under Section 5.1, but, except as specified
above, the remainder of this Indenture and the Securities of such series shall
be unaffected thereby. The following shall be the conditions to application
of
this Section 13.3;
(1) The
Company has irrevocably deposited or caused to be deposited with the Trustee
(or
another trustee satisfying the requirements of Section 6.9 who shall agree
to
comply with the provisions of this Article Thirteen applicable to it) 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
the Securities of such series (i) cash in an amount, or (ii) in the case of
any
series of Securities the payments on which may only be made in legal coin or
currency of the United States, U.S. Government Obligations which through the
scheduled payment of principal and interest in respect thereof in accordance
with their terms will provide, not later than one day before the due date of
any
payment, cash in an amount, or (iii) a combination thereof, sufficient, in
the
opinion of a nationally recognized firm of independent public accounts expressed
in a written certification thereof delivered to the Trustee, to pay and
discharge (a) the principal of and any premium and interest on and each
installment of principal of and any premium and interest on the Outstanding
Securities of such series on the Stated Maturity of such principal or
installment of principal or interest, as the case may be, or on any Redemption
Date established pursuant to clause (2) below, and (b) any mandatory sinking
fund payments on the date on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of such
series;
(2) If
the
Securities are to be redeemed prior to Stated Maturity (other than from
mandatory sinking fund payments or analogous payments), notice of such
redemption shall have been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee shall have been made;
(3) No
Event
of Default, or an event which with notice or lapse of time or both would become
such an Event of Default, shall have occurred and be continuing on the date
of
such deposit;
(4) Such
defeasance shall be effected in compliance with any additional terms, conditions
or limitations which may be imposed on the Company in connection therewith
pursuant to Section 3.1; and
(5) The
Company shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel stating that all conditions precedent provided for relating
to the covenant defeasance contemplated by this provision have been complied
with.
Notwithstanding
the foregoing, if an Event of Default specified in Subsection 5.1(5) or 5.1(6),
or an event which with lapse of time would become such an Event of Default,
shall occur during the period ending on the 181st day after the date of the
deposit referred to in clause (1) or, if longer, ending on the day following
the
expiration of the longest preference period applicable to the Company in respect
of such deposit, then, effective upon such occurrence, the defeasance pursuant
to this Section 13.3 and such deposit shall be rescinded and annulled, and
the
Company, the Guarantors (if applicable), the Trustee and the Holders of the
Securities of such series shall be restored to their former
positions.
Section
13.4. Deposited
Money and U.S. Government Obligations to be Held in
Trust.
Subject
to the provisions of the last paragraph of Section 10.3, all money and U.S.
Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee - collectively, for purposes of this
Section 13.4, the “Trustee”) pursuant to Section 13.2 or 13.3 in respect of the
Outstanding Securities of such series shall be held in trust and applied by
the
Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), to the Holders of such
Securities, of all sums due and to become due thereon in respect of principal
and any premium and interest, but such money need not be segregated from other
funds except to the extent required by law.
The
Company shall pay and indemnify the Trustee against any tax, fee or other charge
imposed on or assessed against the U.S. Government Obligations deposited
pursuant to Section 13.2 or 13.3 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for
the account of the Holders of the Outstanding Securities of such
series.
Section
13.5. Repayment
to Company; Qualifying Trustee.
The
Trustee and any Paying Agent promptly shall pay or return to the Company upon
Company Request any money and U.S. Government Obligations held by them at any
time that, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee (which may be the same certification given at the time of the deposit
pursuant to Section 13.2 or 13.3, as applicable), are not required for the
payment of the principal of and any interest on the Securities of any series
for
which money or U.S. Government Obligations have been deposited pursuant to
Section 13.2 or 13.3.
The
provisions of the last paragraph of Section 10.3 shall apply to any money held
by the Trustee or any Paying Agent under this Article Thirteen that remains
unclaimed for one year after the Maturity of any series of Securities for which
money or U.S. Government obligations have been deposited pursuant to Section
13.2 or 13.3.
Any
trustee appointed pursuant to Section 13.2 or 13.3 for the purpose of holding
trust funds deposited pursuant to that Section shall be appointed under an
agreement in form acceptable to the Trustee and shall provide to the Trustee
a
certificate of such trustee, upon which certificate the Trustee shall be
entitled to conclusively rely, that all conditions precedent provided for herein
to the related defeasance or covenant defeasance have been complied with. In
no
event shall the Trustee be liable for any acts or omissions of said
trustee.
ARTICLE
FOURTEEN
GUARANTEE
OF SECURITIES
Section
14.1. Unconditional
Guarantee.
For
value
received, each of the Guarantors hereby fully, irrevocably, unconditionally
and
absolutely guarantees to the Holders of Securities of each series to which
this
Article Fourteen has been made applicable as provided in Section 3.1(20) and
to
the Trustee the due and punctual payment of the principal of, and premium,
if
any, and interest on such Securities, and all other amounts due and payable
under this Indenture and such Securities by the Company to the Trustee or such
Holders (including, without limitation, all costs and expenses (including
reasonable legal fees and disbursements) incurred by the Trustee or such Holders
in connection with the enforcement of this Indenture and the Guarantee)
(collectively, the “Indenture Obligations”), when and as such principal,
premium, if any, interest, if any, and other amounts shall become due and
payable, whether at the Stated Maturity, upon redemption or by declaration
of
acceleration or otherwise, according to the terms of such Securities and this
Indenture. The guarantees by the Guarantors set forth in this Article Fourteen
are referred to herein as the “Guarantee.” Without limiting the generality of
the foregoing, each Guarantor’s liability shall extend to all amounts that
constitute part of the Indenture Obligations and would be owed by the Company
to
the Trustee or such Holders under this Indenture and such Securities but for
the
fact that they are unenforceable, reduced, limited, impaired, suspended or
not
allowable due to the existence of a bankruptcy, reorganization or similar
proceeding involving the Company.
Failing
payment when due of any amount guaranteed pursuant to the Guarantee, for
whatever reason, each Guarantor will be obligated (to the fullest extent
permitted by applicable law) to pay the same immediately to the Trustee, without
set-off or counterclaim or other reduction whatsoever (whether for taxes,
withholding or otherwise). The Guarantee hereunder is intended to be a general,
unsecured, subordinated obligation of each Guarantor and will be subordinated
in
right of payment to all Guarantor Senior Debt. Each Guarantor hereby agrees
that, to the fullest extent permitted by applicable law, its obligations
hereunder shall be full, irrevocable, unconditional and absolute, irrespective
of the validity, regularity or enforceability of such Securities, the Guarantee
or this Indenture, the absence of any action to enforce the same, any waiver
or
consent by any such Holder with respect to any provisions hereof or thereof,
the
recovery of any judgment against the Company, any action to enforce the same
or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of such Guarantor. Each Guarantor hereby agrees that in
the
event of a default in payment of the principal of, or premium, if any, or
interest on such Securities, or any other amounts payable under this Indenture
and such Securities by the Company to the Trustee or the Holders thereof,
whether at the Stated Maturity, upon redemption or by declaration of
acceleration or otherwise, legal proceedings may be instituted by the Trustee
on
behalf of such Holders or, subject to Section 5.7 hereof, by such Holders,
on
the terms and conditions set forth in this Indenture, directly against such
Guarantor to enforce the Guarantee without first proceeding against the
Company.
To
the
fullest extent permitted by applicable law, the obligations of each Guarantor
under this Article Fourteen shall be as aforesaid full, irrevocable,
unconditional and absolute and shall not be impaired, modified, discharged,
released or limited by any occurrence or condition whatsoever, including,
without limitation, (i) any compromise, settlement, release, waiver, renewal,
extension, indulgence or modification of, or any change in, any of the
obligations and liabilities of the Company or any Guarantor contained in any
of
such Securities or this Indenture, (ii) any impairment, modification, release
or
limitation of the liability of the Company, any Guarantor or any of their
estates in bankruptcy, or any remedy for the enforcement thereof, resulting
from
the operation of any present or future provision of any applicable Bankruptcy
Law, as amended, or other statute or from the decision of any court, (iii)
the
assertion or exercise by the Trustee or any such Holder of any rights or
remedies under any of such Securities or this Indenture or their delay in or
failure to assert or exercise any such rights or remedies, (iv) the assignment
or the purported assignment of any property as security for any of such
Securities, including all or any part of the rights of the Company or any
Guarantor under this Indenture, (v) the extension of the time for payment by
the
Company or any Guarantor of any payments or other sums or any part thereof
owing
or payable under any of the terms and provisions of any of such Securities
or
this Indenture or of the time for performance by the Company or any Guarantor
of
any other obligations under or arising out of any such terms and provisions
or
the extension or the renewal of any thereof, (vi) the modification or amendment
(whether material or otherwise) of any duty, agreement or obligation of the
Company or any Guarantor set forth in this Indenture, (vii) the voluntary or
involuntary liquidation, dissolution, sale or other disposition of all or
substantially all of the assets, marshaling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment, rehabilitation or
relief of, or other similar proceeding affecting, the Company or any Guarantor
or any of their respective assets, or the disaffirmance of any of such
Securities, the Guarantee or this Indenture in any such proceeding, (viii)
the
release or discharge of the Company or any Guarantor from the performance or
observance of any agreement, covenant, term or condition contained in any of
such instruments by operation of law, (ix) the unenforceability of any of such
Securities, the Guarantee or this Indenture, (x) any change in the name,
business, capital structure, corporate existence, or ownership of the Company
or
any Guarantor, or (xi) any other circumstance which might otherwise constitute
a
defense available to, or a legal or equitable discharge of, a surety or any
Guarantor.
To
the
fullest extent permitted by applicable law, each Guarantor hereby (i) waives
diligence, presentment, demand of payment, notice of acceptance, filing of
claims with a court in the event of the merger, insolvency or bankruptcy of
the
Company or such Guarantor, and all demands and notices whatsoever, (ii)
acknowledges that any agreement, instrument or document evidencing the Guarantee
may be transferred and that the benefit of its obligations hereunder shall
extend to each holder of any agreement, instrument or document evidencing the
Guarantee without notice to them and (iii) covenants that its Guarantee will
not
be discharged except by complete performance of the Guarantee. To the fullest
extent permitted by applicable law, each Guarantor further agrees that if at
any
time all or any part of any payment theretofore applied by any Person to any
Guarantee is, or must be, rescinded or returned for any reason whatsoever,
including without limitation, the insolvency, bankruptcy or reorganization
of
any Guarantor, such Guarantee shall, to the extent that such payment is or
must
be rescinded or returned, be deemed to have continued in existence
notwithstanding such application, and the Guarantee shall continue to be
effective or be reinstated, as the case may be, as though such application
had
not been made.
Each
Guarantor
shall be subrogated to all rights of the Holders and the Trustee against the
Company in respect of any amounts paid by such Guarantor pursuant to the
provisions of this Indenture; provided, however, that such Guarantor shall
not
be entitled to enforce or to receive any payments arising out of, or based
upon,
such right of subrogation with respect to any of such Securities until all
of
such Securities and the Guarantee shall have been indefeasibly paid in full
or
discharged.
A
director, officer, employee or stockholder, as such, of a Guarantor shall not
have any liability for any obligations of the Guarantor under this Indenture
or
for any claim based on, in respect of or by reason of such obligations or their
creation.
To
the
fullest extent permitted by applicable law, no
failure to exercise and no delay in exercising, on the part of the Trustee
or
the Holders, any right, power, privilege or remedy under this Article Fourteen
and the Guarantee shall operate as a waiver thereof, nor shall any single or
partial exercise of any rights, power, privilege or remedy preclude any other
or
further exercise thereof, or the exercise of any other rights, powers,
privileges or remedies. The rights and remedies herein provided for are
cumulative and not exclusive of any rights or remedies provided in law or
equity. Nothing contained in this Article Fourteen shall limit the right of
the
Trustee or the Holders to take any action to accelerate the maturity of such
Securities pursuant to Article Five or to pursue any rights or remedies
hereunder or under applicable law.
Section
14.2. Execution
and Delivery of Notation of Guarantee
To
further evidence the Guarantee, each Guarantor hereby agrees that a notation
of
such Guarantee may be endorsed on each Security of a series to which this
Article Fourteen has been made applicable authenticated and delivered by the
Trustee and executed by either manual or facsimile signature of an officer
of
such Guarantor.
Each
Guarantor hereby agrees that its Guarantee of Securities of a series to which
this Article Fourteen has been made applicable shall remain in full force and
effect notwithstanding any failure to endorse on any such Security a notation
relating to the Guarantee thereof.
If
an
officer of any Guarantor whose signature is on this Indenture or a Security
no
longer holds that office at the time the Trustee authenticates such Security
or
at any time thereafter, such Guarantor's Guarantee of such Security shall be
valid nevertheless.
The
delivery by the Trustee of any Security of a series to which this Article
Fourteen has been made applicable, after the authentication thereof under this
Indenture, shall constitute due delivery of the Guarantee set forth in this
Indenture on behalf of each Guarantor.
Section
14.3. Reports
by Guarantor.
In
addition to the certificates delivered to the Trustee pursuant to Section 10.5,
each Guarantor shall file with the Trustee and the Commission, and transmit
to
Holders of Outstanding Securities of each series to which this Article Fourteen
has been made applicable, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture
Act
at the times and in the manner provided pursuant thereto; provided that any
such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
Section
14.4. Subordination
of Guarantees.
The
obligations of each Guarantor under the Guarantee pursuant to this Article
Fourteen shall be junior and subordinated to the prior payment in full in cash
of all Guarantor Senior Debt (including interest after the commencement of
any
proceeding of the type described in Section 14.1 with respect to such Guarantor
at the rate specified in the applicable Guarantor Senior Debt, whether or not
such interest would be an allowed claim in such proceeding) of such Guarantor,
in each case on the same basis as the Securities are junior and subordinated
to
Senior Debt, as set forth in Article Fifteen mutatis
mutandis.
For the
purposes of the foregoing sentence, the Trustee and the Holders shall have
the
right to receive and/or retain payments by a Guarantor only at such times as
they may receive and/or retain payments and distributions in respect of the
Securities pursuant to this Indenture, including Article Fifteen
hereof.
ARTICLE
FIFTEEN
SUBORDINATION
OF SECURITIES
Section
15.1. Securities
Subordinated to Senior Debt.
(1) The
Company, for itself, its successors and assigns, covenants and agrees, and
each
Holder of Securities, by his acceptance thereof, likewise covenants and agrees,
that the payment of the principal of and premium, if any, and interest on each
and all of the Securities is hereby expressly subordinated, to the extent and
in
the manner hereinafter set forth, in right of payment to the prior payment
in
full of all Senior Debt of the Company.
(2) If
(A)
the Company shall default in the payment of any principal of, premium, if any,
or interest, if any, on any Senior Debt of the Company when the same becomes
due
and payable, whether at maturity or at a date fixed for prepayment or by
declaration of acceleration or otherwise, or (B) any other default shall occur
with respect to Senior Debt of the Company and the maturity of such Senior
Debt
has been accelerated in accordance with its terms, then, upon written notice
of
such default to the Company and the Trustee by the holders of Senior Debt of
the
Company or any trustee therefor, unless and until, in either case, the default
has been cured or waived or has ceased to exist, or, any such acceleration
has
been rescinded or such Senior Debt has been paid in full, no direct or indirect
payment (in cash, property, securities, by set-off or otherwise) shall be made
or agreed to be made on account of the principal of, premium, if any, or
interest, if any, on any of the Securities, or in respect of any redemption,
retirement, purchase or other acquisition of any of the Securities other than
those made in capital stock of the Company (or cash in lieu of fractional shares
thereof).
(3) If
any
default occurs (other than a default described in paragraph (2) of this Section
15.1) under the Senior Debt of the Company, pursuant to which the maturity
thereof may be accelerated immediately without further notice (except such
notice as may be required to effect such acceleration) or at the expiration
of
any applicable grace periods (a “Senior Nonmonetary Default”), then, upon the
receipt by the Company and the Trustee of written notice thereof (a “Payment
Blockage Notice”) from or on behalf of holders of such Senior Debt of the
Company specifying an election to prohibit such payment and other action by
the
Company in accordance with the following provisions of this paragraph (3),
the
Company may not make any payment or take any other action that would be
prohibited by paragraph (2) of this Section 15.1 during the period (the “Payment
Blockage Period”) commencing on the date of receipt of such Payment Blockage
Notice and ending on the earlier of (A) the date, if any, on which the holders
of such Senior Debt or their representative notifies the Trustee that such
Senior Nonmonetary Default is cured or waived or ceases to exist or the Senior
Debt to which such Senior Nonmonetary Default relates is discharged or (B)
the
179th day after the date of receipt of such Payment Blockage Notice.
Notwithstanding the provisions described in the immediately preceding sentence,
the Company may resume payments on the Securities following such Payment
Blockage Period.
Section
15.2. Distribution
on Dissolution, Liquidation and Reorganization; Subrogation
of Securities.
Upon
any
distribution of assets of the Company upon any dissolution, winding up,
liquidation or reorganization of the Company, whether in bankruptcy, insolvency,
reorganization or receivership proceedings or upon an assignment for the benefit
of creditors or any other marshalling of the assets and liabilities of the
Company or otherwise (subject to the power of a court of competent jurisdiction
to make other equitable provision reflecting the rights conferred in this
Indenture upon the Senior Debt of the Company and the holders thereof with
respect to the Securities and the Holders thereof by a lawful plan or
reorganization under applicable bankruptcy law),
(1) the
holders of all Senior Debt of the Company shall be entitled to receive payment
in full of the principal thereof, premium, if any, interest, and any interest
thereon, due thereon before the Holders of the Securities are entitled to
receive any payment upon the principal, premium, interest of or on the
Securities or interest on overdue amounts thereof;
(2) any
payment or distribution of assets of the Company, a Guarantor (if applicable)
or
any other obligor upon the Securities of any kind or character, whether in
cash,
property or securities, to which the Holders of the Securities or the Trustee
(on behalf of the Holders) would be entitled except for the provisions of this
Article Fifteen shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in bankruptcy,
a
receiver or liquidating trustee or otherwise, directly to the holders of Senior
Debt of the Company or their representative or representatives or to the trustee
or trustees under any indenture under which any instruments evidencing any
of
such Senior Debt may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the principal of, premium, if any,
interest, and any interest thereon, on the Senior Debt of the Company held
or
represented by each, to the extent necessary to make payment in full of all
Senior Debt of the Company remaining unpaid, after giving effect to any
concurrent payment or distribution to the holders of such Senior Debt;
and
(3) in
the
event that, notwithstanding the foregoing, any payment or distribution of assets
of the Company, a Guarantor (if applicable) or any other obligor upon the
Securities of any kind or character, whether in cash, property or securities,
shall be received by the Trustee (on behalf of the Holders) or the Holders
of
the Securities before all Senior Debt of the Company is paid in full, such
payment or distribution shall be paid over to the holders of such Senior Debt
or
their representative or representatives or to the trustee or trustees under
any
indenture under which any instruments evidencing any of such Senior Debt may
have been issued, ratably as aforesaid, for application to the payment of all
Senior Debt remaining unpaid until all such Senior Debt shall have been paid
in
full, after giving effect to any concurrent payment or distribution to the
holders of such Senior Debt.
Subject
to the payment in full of all Senior Debt of the Company, the Holders of the
Securities shall be subrogated to the rights of the holders of such Senior
Debt
to receive payments or distributions of cash, property or securities of the
Company applicable to Senior Debt of the Company until the principal, premium,
interest, and any interest thereon, of or on the Securities shall be paid in
full and no such payments or distributions to the Holders of the Securities
of
cash, property or securities otherwise distributable to the Senior Debt of
the
Company shall, as between the Company, its creditors other than the holders
of
Senior Debt of the Company, and the Holders of the Securities, be deemed to
be a
payment by the Company to or on account of the Securities. It is understood
that
the provisions of this Article Fifteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities, on
the
one hand, and the holders of Senior Debt of the Company, on the other hand.
Nothing contained in this Article Fifteen or elsewhere in this Indenture or
in
the Securities is intended to or shall impair, as between the Company, its
creditors other than the holders of Senior Debt of the Company, and the Holders
of the Securities, the obligation of the Company, which is unconditional and
absolute, to pay to the Holders of the Securities the principal, premium,
interest, and any interest thereon, of or on the Securities as and when the
same
shall become due and payable in accordance with their terms, or to affect the
relative rights of the Holders of the Securities and creditors of the Company
other than the holders of Senior Debt of the Company, nor shall anything herein
or in the Securities prevent the Trustee or the Holder of any Security from
exercising all remedies otherwise permitted by applicable law upon default
under
this Indenture, subject to the rights, if any, under this Article Fifteen of
the
holders of such Senior Debt in respect of cash, property or securities of the
Company received upon the exercise of any such remedy. Upon any payment or
distribution of assets of the Company referred to in this Article Fifteen,
the
Trustee shall be entitled to conclusively rely upon a certificate of the
liquidating trustee or agent or other person making any distribution to the
Trustee for the purpose of ascertaining the persons entitled to participate
in
such distribution, the holders of Senior Debt of the Company and other
indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon, and all other facts pertinent thereto
or
to this Article Fifteen.
The
Trustee, however, shall not be deemed to owe any fiduciary duty to the holders
of Senior Debt of the Company. The Trustee shall not be liable to any such
holder if it shall pay over or distribute to or on behalf of Holders of
Securities or the Company moneys or assets to which any holder of Senior Debt
of
the Company shall be entitled by virtue of this Article Fifteen. The rights
and
claims of the Trustee under Section 6.7 shall not be subject to the provisions
of this Article Fifteen.
If
the
Trustee or any Holder of Securities does not file a proper claim or proof of
debt in the form required in any proceeding referred to above prior to 30 days
before the expiration of the time to file such claim in such proceeding, then
the holder of any Senior Debt of the Company is hereby authorized, and has
the
right, to file an appropriate claim or claims for or on behalf of such Holder
of
Securities.
Section
15.3. Payments
on Securities Permitted.
Nothing
contained in this Indenture or in any of the Securities shall (1) affect the
obligation of the Company to make, or prevent the Company from making, at any
time except as provided in Sections 15.1 and 15.2, payments of principal,
premium, interest, and any interest thereon, of or on the Securities or (2)
prevent the application by the Trustee of any moneys deposited with it hereunder
to the payment of or on account of the principal, premium, interest or other
amounts, and any interest thereon, of or on the Securities unless the Trustee
shall have received at its Corporate Trust Office written notice of any event
prohibiting the making of such payment two Business Days (A) prior to the date
fixed for such payment, (B) prior to the execution of an instrument to satisfy
and discharge this Indenture based upon the deposit of funds under Section
4.1(1)(b), (C) prior to the execution of an instrument acknowledging the
defeasance of such Securities pursuant to Section 13.2 or (D) prior to any
deposit pursuant to clause (1) of Section 13.3 with respect to such
Securities.
Section
15.4. Authorization
of Holders of Securities to Trustee to Effect Subordination.
Each
Holder of Securities by his acceptance thereof, whether upon original issue
or
upon transfer or assignment, authorizes and directs the Trustee on his behalf
to
take such action as may be necessary or appropriate to effectuate the
subordination as provided in this Article Fifteen and appoints the Trustee
his
attorney-in-fact for any and all such purposes.
Section
15.5. Notices
to Trustee.
The
Company shall give prompt written notice to a responsible officer of the Trustee
located at the Corporate Trust Office of the Trustee of any fact known to the
Company which would prevent the making of any payment to or by the Trustee
in
respect of the Securities. Notwithstanding the provisions of this Article
Fifteen or any other provisions of this Indenture, neither the Trustee nor
any
Paying Agent (other than the Company) shall be charged with knowledge of the
existence of any Senior Debt of the Company or of any event which would prohibit
the making of any payment of moneys to or by the Trustee or such Paying Agent,
unless and until the Trustee or such Paying Agent shall have received (in the
case of the Trustee, at its Corporate Trust Office) written notice thereof
from
the Company or from the holder of any Senior Debt of the Company or from the
trustee for or representative of any Senior Debt of the Company together with
proof satisfactory to the Trustee of such holding of such Senior Debt or of
the
authority of such trustee or representative; provided, however, that if at
least
two Business Days prior to the date upon which by the terms hereof any such
moneys may become payable for any purpose (including, without limitation, the
payment of the principal, premium, interest, of or on any Security, or any
interest thereon) or the date on which the Trustee shall execute an instrument
acknowledging satisfaction and discharge of this Indenture or the defeasance
of
Securities pursuant to Section 13.2 or the date on which a deposit pursuant
to
clause (1) of Section 13.3 is made, the Trustee shall not have received with
respect to such moneys or the moneys deposited with it as a condition to such
satisfaction and discharge or defeasance the notice provided for in this Section
15.5, then, anything herein contained to the contrary notwithstanding, the
Trustee shall have full power and authority to receive such moneys and to apply
the same to the purpose for which they were received, and shall not be affected
by any notice to the contrary, which may be received by it on or after such
two
Business Days prior to such date. The Trustee shall be entitled to conclusively
rely on the delivery to it of a written notice by a person representing himself
to be a holder of Senior Debt of the Company (or a trustee or representative
on
behalf of such holder) to establish that such a notice has been given by a
holder of Senior Debt of the Company or a trustee or representative on behalf
of
any such holder. In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Debt of the Company to participate in any payment or distribution
pursuant to this Article Fifteen, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Debt of the Company held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article ▇▇▇▇▇▇▇ and, if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section
15.6. Trustee
as Holder of Senior Debt.
The
Trustee shall be entitled to all the rights set forth in this Article Fifteen
in
respect of any Senior Debt of the Company at any time held by it to the same
extent as any other holder of Senior Debt of the Company and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as
such
holder.
Section
15.7. Modification
of Terms of Senior Debt.
Any
renewal or extension of the time of payment of any Senior Debt of the Company
or
the exercise by the holders of Senior Debt of the Company of any of their rights
under any instrument creating or evidencing such Senior Debt, including without
limitation the waiver of default thereunder, may be made or done all without
notice to or assent from Holders of the Securities or the Trustee.
No
compromise, alteration, amendment, modification, extension, renewal or other
change of, or waiver, consent or other action in respect of, any liability
or
obligation under or in respect of, or of any of the terms, covenants or
conditions of any indenture or other instrument under which any Senior Debt
of
the Company is outstanding or of such Senior Debt, whether or not such release
is in accordance with the provisions of any applicable document, shall in any
way alter or affect any of the provisions of this Article Fifteen or of the
Securities relating to the subordination thereof.
*
*
*
This
instrument may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
FRONTIER
OIL CORPORATION
Name:
Title:
FRONTIER
HOLDINGS INC.
Name:
Title:
FRONTIER
REFINING & MARKETING INC.
Name:
Title:
FRONTIER
REFINING INC.
Name:
Title:
FRONTIER
OIL AND REFINING COMPANY
Name:
Title:
FRONTIER
PIPELINE INC.
By:
Name:
Title:
FRONTIER
EL DORADO REFINING COMPANY
By:
Name:
Title: