AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 13, 1998
REGISTRATION NO. 333-64427
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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EEX CORPORATION
(Exact name of registrant as specified in its charter)
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<S> <C> <C>
TEXAS 75-2421863
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2500 CITYWEST BLVD. J. K. HARTRICK
SUITE 1400 SENIOR VICE PRESIDENT, GENERAL COUNSEL AND CORPORATE
HOUSTON, TEXAS 77042 SECRETARY
(713) 243-3100 2500 CITYWEST BLVD., SUITE 1400
(Address, including zip code, HOUSTON, TEXAS 77042
and telephone number, including (713) 243-3371
area code, of registrant's principal executive offices) (Name, address, including zip code, and telephone number,
including area code, of agent for service)
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With a copy to:
MICHAEL E. DILLARD, P.C.
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
1700 PACIFIC AVENUE, SUITE 4100
DALLAS, TEXAS 75201
(214) 969-2800
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement, as determined
by the registrant.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
=============================================================================================================================
PROPOSED
MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED (1) PRICE PER UNIT OFFERING PRICE (2) REGISTRATION FEE (2)
- -----------------------------------------------------------------------------------------------------------------------------
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Debt Securities (3)
Preferred Stock (4)
Warrants (5)
Common Stock, par value $.01 per share (6)
Total................................. $300,000,000 (7) $300,000,000 $88,500
=============================================================================================================================
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(1) The amount to be registered represents the aggregate dollar value of all
classes of securities to be registered.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o). In no event will the aggregate initial offering
price of all securities issued from time to time pursuant to this
Registration Statement exceed $300,000,000.
(3) Subject to note (2) above, there are being registered hereunder an
indeterminate principal amount of Debt Securities as may be sold from time
to time by the Registrant. If any such Debt Securities are issued at an
original issue discount, then the offering price shall be in such greater
principal amount as shall result in an aggregate initial offering price of
up to $300,000,000.
(4) Subject to note (2) above, there are being registered hereunder an
indeterminate number of shares of Preferred Stock as may be sold from time
to time by the Registrant.
(5) Subject to note (2) above, there are being registered hereunder an
indeterminate amount and number of Warrants, representing rights to
purchase certain of the Debt Securities, Preferred Stock or Common Stock
registered hereby.
(6) Subject to note (2) above, there are being registered hereunder an
indeterminate number of shares of Common Stock as may be sold from time to
time by the Registrant. There are also being registered hereunder an
indeterminate number of shares of Common Stock as may be issuable upon
conversion of the Preferred Stock registered hereby.
(7) The proposed maximum initial offering price per unit will be determined,
from time to time, by the Registrant.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
================================================================================
<PAGE>
SUBJECT TO COMPLETION, DATED OCTOBER 13, 1998
PROSPECTUS
, 1998
$300,000,000
EEX CORPORATION
Debt Securities
Preferred Stock
Warrants
Common Stock
EEX Corporation, a Texas corporation (the "Company"), may offer and
issue, from time to time, (i) unsecured senior debt securities of the Company
("Senior Debt Securities") in one or more series, (ii) unsecured senior
subordinated debt securities of the Company ("Senior Subordinated Debt
Securities," and, collectively with the Senior Debt Securities, the "Debt
Securities") in one or more series, (iii) warrants to purchase Debt Securities
(the "Debt Warrants"), (iv) shares of preferred stock, no par value, of the
Company ("Preferred Stock"), (v) warrants to purchase shares of Preferred Stock
(the "Preferred Stock Warrants"), (vi) shares of common stock, par value $.01
per share, of the Company ("Common Stock"), and (vii) warrants to purchase
shares of Common Stock (the "Common Stock Warrants" and, together with the
Preferred Stock Warrants, the "Stock Warrants"). The Debt Warrants and Stock
Warrants are collectively referred to as the "Warrants," and the Debt
Securities, Preferred Stock, Common Stock and Warrants are collectively referred
to as the "Securities."
Any Securities may be offered with other Securities or separately. The
Securities will be offered at an aggregate initial offering price not to exceed
$300,000,000.
The specific terms of the Securities in respect of which this
Prospectus is being delivered will be set forth in an accompanying Prospectus
Supplement (a "Prospectus Supplement") including, without limitation, (i) in the
case of Debt Securities, the specific designation, aggregate principal amount,
ranking as senior or subordinated debt, purchase price, currency of payment,
denomination, maturity (which may be fixed or extendible), premium (if any),
interest rate (which may be fixed or variable) and time of payment of interest
(if any), guarantees thereof (if any), terms (if any) for the exchangeability,
redemption, purchase or conversion thereof, listing (if any) on a securities
exchange, additional or different covenants and events of default, and any other
material terms of the Debt Securities; (ii) in the case of Preferred Stock, the
designation, number of shares, liquidation preference per share, initial public
offering price, dividend or distribution rate (or method of calculation
thereof), dates on which dividends or distributions shall be payable and dates
from which dividends or distributions shall accrue, any redemption or sinking
fund provisions, any voting rights, any conversion or exchange provisions, and
any other rights, preferences, privileges, limitations or restrictions relating
to the Preferred Stock of a specific series; (iii) in the case of Common Stock,
the number of shares, public offering price, the terms of the offering and sale
thereof and the number of shares issuable upon conversion of the Preferred Stock
offered hereby; (iv) in the case of Warrants, the number and terms thereof, the
designation and description of the Common Stock, Preferred Stock or Debt
Securities issuable thereunder, the number of securities issuable upon exercise,
the exercise price, the terms of the offering and sale thereof and, where
applicable, the duration and detachability thereof. Each Prospectus Supplement
will also contain information, where applicable, about certain United States
federal income tax considerations relating to the Securities covered by such
Prospectus Supplement.
(Continued on next page)
SEE "RISK FACTORS" IN THE ACCOMPANYING PROSPECTUS SUPPLEMENT FOR A
DISCUSSION OF CERTAIN FACTORS THAT SHOULD BE CONSIDERED BY PROSPECTIVE
PURCHASERS OF THE SECURITIES.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES
UNLESS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NEITHER BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NEITHER CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF ANY OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WH ICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATIO NOR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
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The Company's Common Stock is quoted on the New York Stock Exchange
("NYSE") under the symbol "EEX." Any Common Stock offered hereby will be listed,
subject to official notice of issuance, on the NYSE.
The Securities may be sold on a negotiated or competitive bid basis to
or through underwriters or dealers designated from time to time or to other
purchasers directly or through agents designated from time to time. Certain
terms of any offering and sale of the Securities, including, where applicable,
the names of the underwriters, dealers or agents, if any, the principal amount
or number of shares to be purchased, the purchase price of the Securities, the
proceeds to the Company from such sale and any applicable commissions, discounts
and other items constituting compensation of such underwriters, dealers or
agents will also be set forth in an accompanying Prospectus Supplement.
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN
TRANSACTIONS THAT STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE DEBT
SECURITIES, INCLUDING STABILIZING AND SYNDICATE COVERING TRANSACTIONS. THE
UNDERWRITERS MAY OVER-ALLOT OR EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN
THE MARKET PRICE OF THE COMMON STOCK OF THE COMPANY AT A LEVEL ABOVE THAT WHICH
MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. FOR A DESCRIPTION OF THESE
ACTIVITIES. SEE "PLAN OF DISTRIBUTION."
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the rules
and regulations promulgated thereunder, and, in accordance therewith, files
reports, proxy and information statements and other information with the
Securities and Exchange Commission (the "Commission"). These reports, proxy and
information statements and other information concerning the Company can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's regional offices located at Citicorp Center, 500 West Madison
Street, 14th Floor, Chicago, Illinois 60661 and at Seven World Trade Center,
13th Floor, New York, New York 10048. Copies of such material can also be
obtained from the Commission at prescribed rates through its Public Reference
Section at 450 Fifth Street, N.W., Washington, D.C. 20549. The Commission also
maintains a site on the World Wide Web at http://www.sec.gov that contains
reports, proxy and information statements and other information regarding
registrants such as the Company that file electronically with the Commission.
Such material is also available for inspection at the offices of the New York
Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
The Company has filed with the Commission a Registration Statement on
Form S-3 under the Securities Act with respect to the Securities offered hereby
(including all amendments and supplements thereto, the "Registration
Statement"). This Prospectus, which constitutes a part of the Registration
Statement, does not contain all of the information set forth in the Registration
Statement, certain parts of which have been omitted in accordance with the rules
and regulations of the Commission. For further information with respect to the
Company and such Securities, reference is made to the Registration Statement,
including the documents and exhibits filed or incorporated as a part thereof.
Statements contained herein concerning the provisions of certain documents are
not necessarily complete and, in each instance, reference is made to the copy of
such document filed as an exhibit to the Registration Statement or otherwise
filed with the Commission. Each such statement is qualified in its entirety by
such reference. The Registration Statement and the exhibits thereto can be
inspected and copied at the public reference facilities and regional offices of
the Commission and at the offices of the NYSE referred to above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, heretofore filed by the Company with the
Commission pursuant to the Exchange Act, are hereby incorporated by reference
into this Prospectus and made a part hereof:
1. The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997.
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1998.
3. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998.
4. The Company's Current Report on Form 8-K filed September 29,
1998.
5. The Company's Current Report on Form 8-K filed September 15,
1998.
6. The Company's Current Report on Form 8-K filed September 2, 1998.
7. The Company's Current Report on Form 8-K filed June 25, 1998.
8. The Company's Current Report on Form 8-K filed May 8, 1998.
9. The Company's Current Report on Form 8-K filed February 27, 1998.
10. The Company's Current Report on Form 8-K filed February 26, 1998.
11. The Company's Current Report on Form 8-K filed February 12, 1998.
12. The Company's Current Report on Form 8-K filed January 23, 1998.
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13. The Company's Proxy Statement, dated March 31, 1998, relating to
the 1997 Annual Meeting of Shareholders held May 12, 1998.
14. All other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since December 31, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing of
such documents. Any statement contained in a document or information
incorporated or deemed to be incorporated herein by reference shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any subsequently filed document that also is,
or is deemed to be, incorporated herein by reference, modifies or supersedes
such statement. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Prospectus.
The Company undertakes to provide, without charge, to each person,
including any beneficial owner, to whom a copy of this Prospectus is delivered,
upon the written or oral request of such person, a copy of any and all of the
documents or information referred to above that has been or may be incorporated
by reference in this Prospectus (excluding exhibits to such documents unless
such exhibits are specifically incorporated by reference). Requests should be
directed to Corporate Secretary, EEX Corporation, 2500 CityWest Blvd., Suite
1400, Houston, Texas 77042, telephone (713) 243-3100.
THE COMPANY
OVERVIEW
EEX Corporation and its business predecessors have been engaged in the
exploration for and the development, production and sale of natural gas and
crude oil since 1918. Its activities are currently concentrated in Texas, the
Offshore Gulf of Mexico and international regions. The Company also provides
operation and maintenance services, under contract, to two cogeneration plants
("Plant Operations Business").
HISTORY OF THE COMPANY
The oil and gas exploration and production business of the Company was
conducted, historically, through subsidiary and affiliate entities of ENSERCH
Corporation ("ENSERCH"). From 1985 through December 30, 1994, this business was
conducted primarily through Enserch Exploration Partners, Ltd. ("EP"), a limited
partnership in which a minority interest (less than 1% after 1988) was held by
the public. At year-end 1994, EP and its affiliates were reorganized into a
Texas corporation, Enserch Exploration, Inc. ("Old EEI"), in which ENSERCH
maintained an approximately 99% stock ownership interest, with the balance held
by the public. The public's stock ownership interest increased to approximately
17% following a public sale by Old EEI of its common stock in August 1995.
The Company was organized in the State of Texas in 1992 as a wholly
owned subsidiary of ENSERCH. It conducted the Plant Operations Business of
ENSERCH under the name of Lone Star Energy Plant Operations, Inc. ("LSEPO").
In 1996, ENSERCH entered into a merger agreement with Texas Utilities
Company under which ENSERCH agreed to exit the oil and gas business and divest
all of its interests in Old EEI. This divestiture was accomplished in two steps.
First, Old EEI was merged into LSEPO, with LSEPO being the surviving company
("Merger"). In the Merger, LSEPO changed its name to Enserch Exploration, Inc.
Second, ENSERCH distributed its entire 83% ownership interest in Old EEI pro
rata to its shareholders in a tax-free distribution ("Distribution"). The Merger
and the Distribution were each effective on August 5, 1997.
At a special shareholders' meeting held on December 19, 1997, Enserch
Exploration, Inc. changed its name to EEX Corporation.
4
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The principal offices of the Company are located at 2500 CityWest
Blvd., Suite 1400, Houston, Texas 77042, and its telephone number is (713)
243-3100.
USE OF PROCEEDS
Unless a Prospectus Supplement indicates otherwise, the net proceeds to
be received by the Company from the issue and sale from time to time of the
Securities will be added to the general funds of the Company to be used for
general corporate purposes, capital expenditures and the cash portion of
acquisitions. Pending such application, such net proceeds may be invested in
short-term marketable securities. Each Prospectus Supplement will contain
specific information concerning the use of proceeds from the sale of Securities
to which it relates.
RATIO OF EARNINGS TO FIXED CHARGES
Earnings for the years ended December 31, 1997, 1996, 1995, 1994 and
1993 were inadequate to cover fixed charges by $276 million, $59 million, $68
million, $53 million and $30 million, respectively. For the six months ended
June 30, 1998, earnings were inadequate to cover fixed charges by $28 million.
GENERAL DESCRIPTION OF SECURITIES AND RISK FACTORS
The Company may offer shares of Common Stock, Preferred Stock, Debt
Securities or any combination of the foregoing either individually or as units
consisting of one or more Securities under this Prospectus.
CERTAIN OF THE SECURITIES TO BE OFFERED HEREBY THEMSELVES MAY INVOLVE A
HIGH DEGREE OF RISK. SUCH RISKS WILL BE SET FORTH IN THE PROSPECTUS SUPPLEMENT
RELATING TO SUCH SECURITY. IN ADDITION, CERTAIN RISK FACTORS, IF ANY, RELATING
TO THE COMPANY'S BUSINESS WILL BE SET FORTH IN A PROSPECTUS SUPPLEMENT.
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities
summarizes certain general terms and provisions of the Debt Securities to which
any Prospectus Supplement may relate. The particular terms of the Debt
Securities and the extent, if any, to which such general provisions may apply to
any series of Debt Securities will be described in the Prospectus Supplement
relating to such series.
Senior Debt Securities may be issued from time to time in one or more
series under an Indenture (as amended or supplemented from time to time, the
"Senior Indenture"), between the Company, the Guarantors (as defined below), if
any, and The Bank of New York, as trustee, or such other trustee as shall be
named in a Prospectus Supplement (the "Senior Trustee"). Senior Subordinated
Debt Securities may be issued, from time to time, in one or more series under an
Indenture (as amended or supplemented from time to time, the "Senior
Subordinated Indenture" and, together with the Senior Indenture, the
"Indentures"), between the Company, the Guarantors, if any, and Chase Bank of
Texas, National Association, as trustee, or such other trustee as shall be named
in a Prospectus Supplement (the "Senior Subordinated Trustee" and, together with
the Senior Trustee, the "Trustees"). The forms of Indentures are filed as an
exhibit to the Registration Statement of which this Prospectus is a part and
will be available for inspection at the respective corporate trust office of the
Trustees, or as described above under "Available Information." Each Indenture is
subject to, and governed by, the Trust Indenture Act of 1939, as amended (the
"TIA"). The Company will execute an applicable Indenture if and when the Company
issues any Debt Securities. The statements made hereunder relating to the
Indentures and the respective Debt Securities to be issued thereunder are
summaries of certain provisions thereof and do not purport to be complete and
are subject to, and are qualified in their entirety by reference to, all
provisions of the applicable Indenture (including those terms made a part of the
Indentures by reference to the TIA) and such Debt Securities. Capitalized terms
used but not defined herein shall have the respective meanings set forth in the
Indentures. References below to an "Indenture" are deemed to constitute a
reference to the applicable Indenture under which a particular series of Debt
Securities is issued.
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GENERAL
The Senior Debt Securities will be unsecured senior obligations of the
Company and will rank equally and ratably with other unsecured and
unsubordinated senior debt of the Company, unless the Company shall be required
to secure the Senior Debt Securities as described in any related Prospectus
Supplement. The obligation of the Company pursuant to any Senior Subordinated
Debt Securities will be subordinated in right of payment to all Senior
Indebtedness of the Company with respect to such Senior Subordinated Debt
Securities, and will be described in an accompanying Prospectus Supplement. Debt
Securities will be issued from time to time and offered on terms determined by
market conditions at the time of sale. The Debt Securities may be issued in one
or more series with the same or various maturities, at par, at a premium or at a
discount. Any Debt Securities bearing no interest or interest at a rate which at
the time of issuance is below market rates will be sold at a discount (which may
be substantial) from their stated principal amount. Federal income tax
consequences and other special considerations applicable to any such
substantially discounted Debt Securities will be described in the Prospectus
Supplement relating thereto. Specific terms of each series of Debt Securities
will be contained in authorizing resolutions or a supplemental indenture
relating to that series. There will be Prospectus Supplements relating to each
series of Debt Securities. Each Prospectus Supplement will describe, as to the
Debt Securities to which it relates: (i) the title of the Debt Securities; (ii)
any limit upon the aggregate principal amount of a series of Debt Securities
which may be issued; (iii) the date or dates on which principal of the Debt
Securities will be payable and the amount of principal which will be payable;
(iv) the rate or rates (which may be fixed or variable) at which the Debt
Securities will bear interest, if any, as well as the dates from which interest
will accrue, the dates on which interest will be payable and the record date for
the interest payable on any payment date; (v) the currency or currencies in
which principal, premium, if any, and interest, if any, will be paid; (vi) the
place or places where principal, premium, if any, and interest, if any, on the
Debt Securities will be payable and where Debt Securities which are in
registered form can be presented for registration of transfer or exchange and
the identification of any depository or depositories for any global debt
securities; (vii) any provisions regarding the right of the Company to redeem or
purchase Debt Securities or of holders to require the Company to redeem Debt
Securities; (viii) the right, if any, of holders of the Debt Securities to
convert them into stock or other securities of the Company, including any
provisions intended to prevent dilution of the conversion rights or otherwise;
(ix) any provisions by which the Company will be required or permitted to make
payments to a sinking fund which will be used to redeem Debt Securities or a
purchase fund which will be used to purchase Debt Securities; (x) the percentage
of the principal amount at which Debt Securities will be issued and, if other
than the full principal amount thereof, the percentage of the principal amount
of the Debt Securities which is payable if maturity of the Debt Securities is
accelerated because of a default; (xi) the terms, if any, upon which Debt
Securities may be subordinated to other indebtedness of the Company; (xii) any
additions to, modifications of or deletions from the terms of the Debt
Securities with respect to Events of Default or covenants or other provisions
set forth in the applicable Indenture; and (xiii) any other material terms of
the Debt Securities, which may be different than the terms set forth in this
Prospectus.
Each Prospectus Supplement will describe, as to the Debt Securities to
which it relates, any guarantees (the "Guarantees") by certain direct and
indirect subsidiaries of the Company which may guarantee the Debt Securities
(the "Guarantors"), including the terms of subordination, if any, of any such
Guarantee.
Unless otherwise specified in the Prospectus Supplement, the principal
of, any premium on, and any interest on the Debt Securities will be payable, and
the Debt Securities will be transferable, at the Corporate Trust Office of the
applicable Trustee in New York, New York or Dallas, Texas, provided that payment
of interest, if any, may be made at the option of the Company by check mailed on
or before the payment date, first class mail, to the address of the person
entitled thereto as it appears on the registry books of the Company or its
agent.
Unless otherwise specified in the Prospectus Supplement, the Debt
Securities will be issued only in fully registered form and in denominations of
$1,000 and any integral multiple thereof. No service charge will be made for any
transfer or exchange of any Debt Securities, but the Company may, except in
certain specified cases not involving any transfer, require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. Unless otherwise set forth in the Prospectus Supplement, interest on
outstanding Debt Securities will be paid to holders of record on the date which
is 15 days immediately prior to the date such interest is to be paid.
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The Company's rights and the rights of its creditors (including holders
of Debt Securities) to participate in any distribution of assets of any
subsidiary of the Company upon its liquidation or reorganization or otherwise is
necessarily subject to the prior claims of creditors of the subsidiary, except
to the extent that claims of the Company itself as a creditor of the subsidiary
may be recognized. The operations of the Company are conducted through its
subsidiaries and, therefore, the Company is dependent upon the earnings and cash
flow of its subsidiaries to meet its obligations, including obligations under
the Debt Securities. The Debt Securities will be effectively subordinated to all
indebtedness of the Company's subsidiaries.
EVENTS OF DEFAULT AND REMEDIES
As to any series of Debt Securities, an Event of Default is defined in
each Indenture as being (i) a default for a period of 90 days in payment of any
interest on any Debt Security of such series when it becomes due and payable,
(ii) a default in payment of the principal of (or premium, if any) on any of the
Debt Securities of such series at its maturity, (iii) a default in the payment
of any sinking or purchase fund or analogous obligation, if any, when and as due
by the terms of any Debt Security of such series, (iv) a default by the Company
or any Guarantor for a period of 90 days after notice in the observance or
performance of any other covenants contained in the Indenture relating to such
series, and (v) certain events involving bankruptcy, insolvency or
reorganization of the Company or certain Guarantors.
A default under other indebtedness of the Company will not be a default
under the Indentures and a default under one series of Debt Securities will not
necessarily be a default under another series.
Each Indenture provides that if any Event of Default has occurred and
is continuing with respect to any series of Debt Securities, either the
applicable Trustee or the holders of not less than 25% in aggregate principal
amount of the Debt Securities of such series then outstanding (each such series
acting as a separate class) may declare the principal of all the outstanding
Debt Securities of such series and the interest accrued thereon, if any, to be
due and payable immediately. However, the holders of a majority in aggregate
principal amount of the Debt Securities of such series affected and then
outstanding by written notice to the applicable Trustee and the Company may
waive any Event of Default (other than any Event of Default in payment of
principal or interest or in respect of certain covenants) with respect to such
series of Debt Securities. Holders of a majority in aggregate principal amount
of the then outstanding Debt Securities of any series may rescind an
acceleration with respect to such series and its consequences (except an
acceleration due to nonpayment of principal or interest on such series) if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default with respect to such series have been cured or waived.
The holders of a majority in aggregate principal amount of the Debt
Securities of any series affected and then outstanding will have the right to
direct the time, method and place of conducting any proceedings for any remedy
available to the applicable Trustee with respect to such series, subject to
certain limitations specified in the applicable Indenture. Each Indenture
provides that, in case an Event of Default shall occur and be continuing, the
Trustee thereunder, in exercising its rights and powers under such Indenture,
will be required to use the degree of care of a prudent person in the conduct of
such person's own affairs. Each Indenture further provides that the Trustee
thereunder shall not be required to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties under such
Indenture unless it has reasonable grounds for believing that repayment of such
funds or adequate indemnity against such risk or liability is reasonably assured
to it.
DEFEASANCE OF INDENTURES
Each Indenture permits the Company and the Guarantors to terminate all
of their respective obligations under the applicable Indenture as they relate to
any particular series of Debt Securities (other than the obligation to pay
interest, if any, on and the principal of the Debt Securities of such series and
certain other obligations) at any time by (i) depositing in trust with the
applicable Trustee, under an irrevocable trust agreement, money or U.S.
Government Obligations in an amount sufficient to pay principal of and interest,
if any, on the Debt Securities of such series to their maturity, and (ii)
complying with certain other conditions, including delivery to the applicable
Trustee of an opinion of counsel or a ruling received from the Internal Revenue
Service to the effect that holders thereof will not recognize income, gain or
loss for federal income tax purposes as a result of the Company's exercise of
such right 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 otherwise.
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In addition, each Indenture permits the Company and the Guarantors to
terminate all of their respective obligations under the Indenture as they relate
to any particular series of Debt Securities (including the obligations to pay
interest, if any, on and the principal of the Debt Securities of such series and
certain other obligations) at any time by (i) depositing in trust with the
applicable Trustee, under an irrevocable trust agreement, money or U.S.
government obligations in an amount sufficient to pay principal of and interest,
if any, on the Debt Securities of such series to their maturity, and (ii)
complying with certain other conditions, including delivery to the applicable
Trustee of an opinion of counsel or a ruling received from the Internal Revenue
Service to the effect that holders thereof will not recognize income, gain or
loss for federal income tax purposes as a result of the Company's exercise of
such right 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 otherwise,
which opinion of counsel is based upon a change in the applicable federal tax
law since the date of the applicable Indenture.
The applicable Trustee shall hold in trust cash or U.S. Government
Obligations deposited with it as described above and shall apply the deposited
cash and the proceeds from deposited U.S. Government Obligations to the payment
of principal, premium, if any, and interest with respect to the Debt Securities
of the defeased series.
TRANSFER AND EXCHANGE
A holder of Debt Securities of any series will be able to transfer or
exchange such Debt Securities only in accordance with the provisions of the
applicable Indenture. The registrar of such series of Debt Securities may
require a holder, among other things, to furnish appropriate endorsements and
transfer documents, and to pay any taxes and fees required or permitted by the
applicable Indenture.
AMENDMENT, SUPPLEMENT AND WAIVER
Subject to certain exceptions, each Indenture, the Debt Securities or
the Guarantees of a particular series of Debt Securities may be amended or
supplemented with the consent (which may include consents obtained in connection
with a tender offer or exchange offer for any series of Debt Securities) of the
holders of at least a majority in aggregate principal amount of the Debt
Securities of each series affected by such amendment or supplement then
outstanding, and any existing Default under, or compliance with any provision of
the applicable Indenture relating to a particular series of Debt Securities may
be waived (other than any continuing Default or Event of Default in the payment
of interest on or the principal of such Debt Securities) with the consent (which
may include consents obtained in connection with a tender offer or exchange
offer for Debt Securities) of the holders of a majority in aggregate principal
amount of the Debt Securities of such series affected and then outstanding.
Without the consent of any holder of outstanding Debt Securities, the Company
and the Trustees may amend or supplement the applicable Indenture, the Debt
Securities or the Guarantees to (i) evidence the succession of another Person to
the Company, (ii) add to the covenants of the Company or to surrender a right or
power of the Company, (iii) add any additional Events of Default, (iv) provide
for Debt Securities in bearer form, (v) make any change when no Debt Securities
are outstanding or that does not apply to any Debt Securities previously
entitled to such benefit, (vi) evidence the succession of another Trustee, (vii)
cure any ambiguity, defect or inconsistency or (viii) make any immaterial change
not adverse to any holder of outstanding Debt Securities.
Without the consent of each holder affected, the Company and the
Trustees may not (i) reduce the amount of Debt Securities of such series whose
holders must consent to an amendment, supplement or waiver, (ii) reduce the rate
of or change the time for payment of interest, (iii) reduce the principal of or
change the fixed maturity of any series of Debt Security or alter the provisions
with respect to redemptions or mandatory offers to repurchase Debt Securities
pursuant to certain covenants set forth in the applicable Indenture, (iv) make
any Debt Security payable in money other than that stated in such Debt Security,
(v) modify the ranking or priority of any series of Debt Securities or any
Guarantee, (vi) release any Guarantor from any of its obligations under its
Guarantee or the applicable Indenture otherwise than in accordance with such
Indenture, or (vii) waive a continuing default in the payment of principal of or
interest on any series of Debt Securities.
The right of any holder to participate in any consent required or
sought pursuant to any provision of the Indenture (and the obligation of the
Company to obtain any such consent otherwise required from such holder) may be
subject to the requirement that such holder shall have been the holder of record
of any series of Debt Securities with
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respect to which such consent is required or sought as of a date identified by
the applicable Trustee in a notice furnished to holders in accordance with the
terms of the applicable Indenture.
CONCERNING THE TRUSTEES
Unless otherwise set forth in a Prospectus Supplement, the initial
Trustee for the Senior Debt Securities is The Bank of New York, and the initial
Trustee for the Subordinated Debt Securities is Chase Bank of Texas, National
Association. In certain instances, the Company or the holders of a majority of
the then outstanding principal amount of the Debt Securities issued under an
Indenture may remove the Trustee and appoint a successor Trustee. The Trustees
may become the owner or pledgee of any of the Debt Securities with the same
rights, subject to certain conflict of interest restrictions, it would have if
it were not the Trustee. Each Trustee and any successor trustee must be a
corporation organized and doing business as a commercial bank or trust company
under the laws of the United States or of any state thereof, authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $50,000,000 and subject to examination by federal or state
authority. From time to time and subject to applicable law relating to conflicts
of interest, each Trustee may also serve as trustee under other indentures
relating to Debt Securities issued by the Company or affiliated companies and
may engage in commercial transactions with the Company and affiliated companies.
In the ordinary course of its business, The Bank of New York, the initial
Trustee under the Senior Indenture, provides, and may continue to provide,
services to the Company as a lender under that certain Credit Agreement, dated
as of May 1, 1995, among the Company, Chase Bank of Texas, National Association
(formerly known as Texas Commerce Bank National Association), as administrative
agent, The Chase Manhattan Bank, N.A., as syndication agent, and the other
lenders set forth therein (as amended, the "Credit Agreement"), and as a trustee
under that certain Trust Indenture, Mortgage, Assignment of Lease and Security
Agreement (1996-A), dated November 15, 1996, among Wilmington Trust Company, as
Corporate Grantor Trustee, Thomas P. Laskaris, as individual Grantor Trustee,
The Bank of New York, as Corporate Indenture Trustee, and Frederick W. Clark, as
Individual Indenture Trustee. In the ordinary course of its business, Chase Bank
of Texas, National Association, the initial Trustee under the Senior
Subordinated Indenture, provides, and may continue to provide, services to the
Company as a lender under the Credit Agreement, a custodian for certain of the
Company's employee benefit plans and a depositary for certain of the Company's
collection and disbursement accounts. Each Indenture contains certain
limitations on the rights of the applicable Trustee, if it becomes a creditor of
the Company, to obtain payment of claims in certain cases or to realize on
certain property received in respect of any such claim as security or otherwise.
Each Trustee will be permitted to engage in other transactions; however, if it
acquires any conflicting interest, it must eliminate such conflict or resign.
Each Indenture provides that if an Event of Default occurs and is not
cured, the applicable Trustee will be required, in the exercise of its power, to
use the degree of care of a prudent person in similar circumstances in the
conduct of its own affairs. Each Trustee may refuse to perform any duty or
exercise any right or power under the applicable Indenture, unless it receives
indemnity, satisfactory to it, against any loss, liability or expense.
GOVERNING LAW
The Indentures, the Debt Securities and the Guarantees will be governed
by the laws of the State of New York without giving effect to principles of
conflict of laws.
SENIOR DEBT SECURITIES
In addition to the provisions previously described herein and
applicable to all Debt Securities, the following description of the Senior Debt
Securities summarizes certain general terms and provisions of the Senior Debt
Securities to which any Prospectus Supplement may relate. The particular terms
of the Senior Debt Securities offered by any Prospectus Supplement and the
extent, if any, to which such general provisions may apply to any series of
Senior Debt Securities will be described in the Prospectus Supplement relating
thereto.
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RANKING OF SENIOR DEBT SECURITIES
Unless otherwise specified in a Prospectus Supplement for a particular
series of Debt Securities, all series of Senior Debt Securities will be senior
indebtedness of the Company and will be direct, unsecured obligations of the
Company, ranking on a parity with all other unsecured and unsubordinated senior
indebtedness of the Company.
SENIOR SUBORDINATED DEBT SECURITIES
In addition to the provisions previously described herein and
applicable to all Debt Securities, the following description of the Senior
Subordinated Debt Securities summarizes certain general terms and provisions of
the Senior Subordinated Debt Securities to which any Prospectus Supplement may
relate. The particular terms of the Senior Subordinated Debt Securities offered
by any Prospectus Supplement and the extent, if any, to which such general
provisions may apply to any series of Senior Subordinated Debt Securities will
be described in the Prospectus Supplement relating thereto.
RANKING OF SENIOR SUBORDINATED DEBT SECURITIES
The Senior Subordinated Debt Securities will be subordinated in right
of payment to certain other indebtedness of the Company to the extent set forth
in the applicable Prospectus Supplement.
The payment of the principal of, premium, if any, and interest on the
Senior Subordinated Debt Securities will be subordinated in right of payment to
the prior payment in full of all Senior Indebtedness of the Company and pari
passu with the Company's trade creditors. No payment on account of principal of,
premium, if any, or interest on the Senior Subordinated Debt Securities and no
acquisition of, or payment on account of any sinking fund for, the Senior
Subordinated Debt Securities may be made unless full payment of amounts then due
for principal, premium, if any, and interest then due on all Senior Indebtedness
by reason of the maturity thereof (by lapse of time, acceleration or otherwise)
has been made or duly provided for in cash or in a manner satisfactory to the
holders of such Senior Indebtedness. In addition, the Subordinated Indenture
provides that if a default has occurred giving the holders of such Senior
Indebtedness the right to accelerate the maturity thereof, or an event has
occurred which, with the giving of notice, or lapse of time, or both, would
constitute such an event of default, then unless and until such event shall have
been cured or waived or shall have ceased to exist, no payment on account of
principal, premium, if any, or interest on the Senior Subordinated Debt
Securities and no acquisition of, or payment on account of a sinking fund for,
the Senior Subordinated Debt Securities may be made. The Company shall give
prompt written notice to the Senior Subordinated Trustee of any default under
any Senior Indebtedness or under any agreement pursuant to which Senior
Indebtedness may have been issued. The Subordinated Indenture provisions
described in this paragraph, however, do not prevent the Company from making a
sinking fund payment on Senior Subordinated Debt Securities acquired prior to
the maturity of Senior Indebtedness or, in the case of default, prior to such
default and notice thereof. Upon any distribution of its assets in connection
with any dissolution, liquidation or reorganization of the Company, all Senior
Indebtedness must be paid in full before the holders of the Senior Subordinated
Debt Securities are entitled to any payments whatsoever. As a result of these
subordination provisions, in the event of the Company's insolvency, holders of
the Senior Subordinated Debt Securities may recover ratably less than senior
creditors of the Company.
For purposes of the description of the Senior Subordinated Debt
Securities, the term "Senior Indebtedness" means the principal of and premium,
if any, and interest on the following, whether outstanding on the date of
execution of the Subordinated Indenture or thereafter incurred or created (i)
indebtedness of the Company for money borrowed by the Company (including
purchase money obligations with an original maturity in excess of one year) or
evidenced by securities (other than the Senior Subordinated Debt Securities),
notes, bankers' acceptances or other corporate debt securities or similar
instruments issued by the Company; (ii) unreimbursed drawings under letters of
credit; (iii) indebtedness of the Company constituting a guarantee of
indebtedness of others of the type referred to in the preceding clauses (i) and
(ii); or (iv) renewals, extensions or refundings of any of the indebtedness
referred to in the preceding clauses (i), (ii) and (iii) unless, in the case of
any particular indebtedness, renewal, extension or refunding, under the express
provisions of the instrument creating or evidencing the same, or pursuant to
which the same is outstanding, such indebtedness or such renewal, extension or
refunding thereof is not superior in right of payment to the Senior Subordinated
Debt Securities.
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DESCRIPTION OF PREFERRED STOCK
The Board of Directors has the authority to issue up to 10,000,000
shares of Preferred Stock, in one or more series, and to fix the rights,
preferences, privileges and qualifications thereof without any further vote or
action by the shareholders. The issuance of Preferred Stock could decrease the
amount of earnings and assets available for distribution to holders of Common
Stock, and adversely affect the rights and powers, including voting rights, of
such holders and may have the effect of delaying, deferring or preventing a
change in control of the Company. No shares of Preferred Stock are currently
outstanding, however, 1,000,000 shares of $200 Series A Junior Participating
Preferred Stock have been reserved for issuance upon the exercise of rights
attached to the Common Stock pursuant to the Rights Agreement (as defined
herein). The particular terms of any series of Preferred Stock will be described
in the applicable Prospectus Supplement.
DESCRIPTION OF COMMON STOCK
GENERAL
The Company's authorized capital stock is 400,000,000 shares of Common
Stock, par value $.01 per share. As of September 24, 1998, 127,150,427 shares of
Common Stock were outstanding.
Holders of shares of Common Stock are entitled to one vote for each
share held of record on all matters submitted to a vote of shareholders. There
are no cumulative voting rights with respect to the election of directors.
Accordingly, the holder or holders of a majority of the outstanding shares of
Common Stock will be able to elect the entire Board of Directors of the Company.
Holders of Common Stock have no preemptive rights and are entitled to such
dividends as may be declared by the Board of Directors of the Company out of
funds legally available therefor. The Common Stock is not entitled to any
sinking fund, redemption or conversion provisions. On liquidation, dissolution
or winding up of the Company, the holders of Common Stock are entitled to share
ratably in the net assets of the Company remaining after the payment of all
creditors, if any. The outstanding shares of Common Stock are duly authorized,
validly issued, fully paid and nonassessable. The transfer agent and registrar
for the Common Stock is Harris Trust Company of New York.
"ANTI-TAKEOVER" MATTERS
The following provisions may have the effect of (i) delaying, deferring
or preventing shareholder actions with respect to certain business combinations
and the election and removal of members to the Board, (ii) deterring potential
acquirors from making an offer to shareholders of the Company and (iii) limiting
the opportunity of such shareholders to realize premiums over prevailing market
prices for their shares of Common Stock. As such, these provisions could have
the effect of discouraging open market purchases of the Common Stock because
they may be considered disadvantageous by a shareholder who desires to
participate in a business combination, the election of directors or an offer.
This could be the case notwithstanding that a majority of the Company's
shareholders might benefit from such business combination, election or offer.
CHARTER AND BYLAW PROVISIONS
The following sets forth certain provisions in the Company's charter
and bylaws which could be considered to be "anti-takeover" provisions. The
Company's Bylaws contain provisions requiring that advance notice be delivered
to the Company of any business to be brought by a shareholder before an annual
meeting of shareholders and providing for certain procedures to be followed by
shareholders in nominating persons for election to the Company's board of
directors (the "Board"). The Company's Restated Articles of Incorporation, as
amended (the "Articles"), provide that the number of directors of the Company
shall be fixed from time to time by the Board by the affirmative vote of not
less than a majority of the Continuing Directors (as defined below), but shall
not be less than three, subject to such rights to elect additional directors
under such circumstances as may be granted to holders of the Preferred Stock.
The Articles further provide that directors shall be elected by the affirmative
vote of holders of a majority of the outstanding shares entitled to vote in the
election of directors. Subject to the rights to elect directors under special
circumstances that may be granted to holders of Preferred Stock, directorships
resulting from an increase in the number of directors and
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any vacancies on the Board may be filled solely by the affirmative vote of the
majority of the Continuing Directors even though less than a quorum.
On February 24, 1998, the Board amended the Company's Bylaws (as
amended, the "Bylaws") to implement a classified board of directors. At the
Annual Meeting of Shareholders held on May 12, 1998, five directors were elected
to comprise a board of directors that is divided into three classes of directors
as equal in number as possible. The one director in the first class holds office
for a one-year term, the two directors in the second class hold office for a
two-year term and the two directors of the third class hold office for a
three-year term. At each annual shareholder meeting following the initial
classification of the Board, the successors to the class of directors whose
terms expire at that meeting will be elected for three-year terms, so that
directors from a single class are elected at each annual meeting of
shareholders. Under the Bylaws, any director may be removed from office only for
cause at any special meeting of the Shareholders of the Company, the notice of
which shall state that the removal of a director is among the purposes of the
meeting, by the affirmative vote of the holders of not less than 66 2/3 % of
shares then entitled to vote in the election of directors.
The Articles provide that any action required or permitted to be taken
by the shareholders of the Company must be effected at a duly called annual or
special meeting of such holders and may not be effected by any consent in
writing by such holders. Subject to such rights to call special meetings of
shareholders as may be granted to the holders of Preferred Stock, special
meetings of the shareholders may be called by the Chairman of the Board, by the
President, by not less than a majority of Continuing Directors or by holders of
not less than 50% of the outstanding shares entitled to vote at the meeting. The
Articles provide that the power to alter, amend or repeal the bylaws or adopt
new bylaws shall be vested in, and shall require the approval of, the
affirmative vote of not less than a majority of the Continuing Directors;
provided, however, that any bylaw or amendment thereto adopted by the Board may
be altered, amended, suspended or repealed by a 66 2/3% vote of the shareholders
entitled to vote in the election of directors. No provision of the Bylaws which
has been altered, amended or adopted by shareholder vote may be altered, amended
or repealed, or a new Bylaw in lieu thereof be adopted, by vote of the Board
until two years shall have expired since such action by shareholder vote. Under
the Articles (i) a "Continuing Director" is a director who is not an affiliate
or associate of a Related Person (as defined below) and was a director of the
Company prior to the time that the Related Person became such and any successor
director who is recommended by a majority of the Continuing Directors and is not
affiliated with a Related Person, and (ii) a "Related Person" is any person or
group that is the beneficial owner of not less than 10% of the outstanding
voting stock.
The Articles also contain a "fair price" provision that applies to
certain business combination transactions involving any Related Person. The
"fair price" provision requires the affirmative vote of the holders of (i) not
less than 80% of the voting stock of the Company and (ii) not less than 50% of
the voting stock of the Company not beneficially owned by the Related Person, to
approve certain transactions between the Related Person and the Company or its
subsidiaries, including any merger, consolidation or share exchange, any sale,
lease, exchange, pledge or other disposition of assets of the Company or its
subsidiaries having a fair market value of at least $5 million, any transferor
issuance of securities of the Company or any of its subsidiaries, any adoption
of a plan or proposal by the Company of voluntary liquidation or dissolution of
the Company, certain reclassifications of securities or recapitalizations of the
Company or certain other transactions, in each case involving the Related
Person. This voting requirement will not apply to certain transactions,
including (a) any merger or consolidation within one year of the person being a
Related Person where the cash or fair market value of property to be received by
the holders of the Company's capital stock is not less than the highest price
per share paid by the Related Person in acquiring any of its holdings, or (b)
any transaction approved by the Continuing Directors. This provision could have
the effect of delaying or preventing a change in control of the Company in a
transaction or series of transactions that did not satisfy the "fair price"
criteria. Pursuant to Article Eleven of the Articles, the provisions of the
Articles relating to the Board, the limitation of actions taken by written
consent, the calling of special meetings, the amendment of the Bylaws and the
"fair price" provision may be amended only by the affirmative vote of the
holders of at least 75% of the aggregate voting power of the outstanding capital
stock of the Company entitled to vote for the election of directors. Amendments
to Article Eleven of the Articles and to the "fair price" provisions require, in
addition, the affirmative vote of the holders of not less than 50% of the
aggregate voting power of the outstanding capital stock of the Company,
excluding the vote of any shares owned by a Related Person (such 50% voting
requirement shall not be applicable if the amendment is approved by the
affirmative vote of the holders of not less than 90% of such voting stock).
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RIGHTS PLAN
Attached to each share of Common Stock is one right (a "Right") to
purchase from the Company a unit consisting of two-hundredths (0.02) of a share
(a "Unit") of $200 Series A Junior Participating Preferred Stock, without par
value (the "Junior Preferred Stock"), at a purchase price of $45 per Unit,
subject to adjustment in certain events (the "Purchase Price"). The following
description of the Rights is a summary and does not purport to be complete.
Reference is also made to the more detailed provisions of, and such description
is qualified in its entirety by reference to, that certain Rights Agreement,
dated as of September 10, 1996 (the "Rights Agreement"), between the Company and
Harris Trust Company of New York, a New York trust company.
The Rights are attached to all certificates representing outstanding
shares of the Common Stock and no separate certificates for the Rights ("Rights
Certificates") have been or will be distributed. The Rights will separate from
the Common Stock and a "Distribution Date" will occur upon the earlier of (i) 10
days following a public announcement that a person or group of affiliated or
associated persons (an "Acquiring Person") has acquired, or obtained the right
to acquire, beneficial ownership of 18% or more of the outstanding shares of
Common Stock (the date of the announcement being the "Stock Acquisition Date"),
or (ii) 10 business days (or such later date as may be determined by the Board
of Directors before the Distribution Date occurs) following the commencement of
a tender offer or exchange offer that would result in a person's becoming an
Acquiring Person. Until the Distribution Date, (a) the Rights will be evidenced
by the certificates representing Common Stock and will be transferred with and
only with such certificates, (b) certificates representing Common Stock will
contain a notation incorporating the Rights Agreement by reference and (c) the
surrender for transfer of any certificate for Common Stock will also constitute
the transfer of the Rights associated with the stock represented by such
certificate.
The Rights are not exercisable until the Distribution Date and will
expire at the close of business on September 10, 2006, unless earlier redeemed
or exchanged by the Company as described below.
As soon as practicable after the Distribution Date, Rights Certificates
will be mailed to holders of record of Common Stock as of the close of business
on the Distribution Date and, from and after the Distribution Date, the separate
Rights Certificates alone will represent the Rights. All shares of Common Stock
issued prior to the Distribution Date will be issued with Rights. Shares of
Common Stock issued after the Distribution Date in connection with certain
employee benefit plans or upon conversion of certain securities will be issued
with Rights.
In the event (a "Flip-In Event") that a person becomes an Acquiring
Person (except pursuant to a tender or exchange offer for all outstanding shares
of Common Stock at a price and on terms that a majority of the directors of the
Company who are not officers or employees of the Company and who are not
representatives, nominees, affiliates or associates of the Acquiring Person
determines to be fair to and otherwise in the best interests of the Company and
its shareholders (a "Permitted Offer")), each holder of a Right will thereafter
have the right to receive, upon exercise of such Right, a number of shares of
Common Stock (or, in certain circumstances, cash, property or other securities
of the Company) having a Current Market Price (as defined in the Rights
Agreement) equal to two times the Purchase Price of the Right. Notwithstanding
the foregoing, following the occurrence of any Flip-In Event, all Rights that
are, or (under certain circumstances specified in the Rights Agreement) were,
beneficially owned by any Acquiring Person (or by certain related parties) will
be null and void in the circumstances set forth in the Rights Agreement.
However, the Rights are not exercisable following the occurrence of any Flip-In
Event until such time as the Rights are no longer redeemable by the Company as
set forth below.
In the event (a "Flip-Over Event") that, at any time on or after the
Stock Acquisition Date, (i) the Company is acquired in a merger or other
business combination transaction (other than certain mergers that follow a
Permitted Offer), or (ii) 50% or more of the Company's assets or earning power
is sold or transferred, each holder of a Right (except Rights that previously
have become void as set forth above) shall thereafter have the right to receive,
upon exercise, a number of shares of common stock of the acquiring company
having a Current Market Price equal to two times the Purchase Price of the
Right. Flip-In Events and Flip-Over Events are collectively referred to as
"Triggering Events."
The Purchase Price payable, and the number of Units of Junior Preferred
Stock or other securities or property issuable, upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event of
a
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stock dividend on, or a subdivision, combination or reclassification of, the
Junior Preferred Stock, (ii) if holders of the Junior Preferred Stock are
granted certain rights or warrants to subscribe for Junior Preferred Stock or
certain convertible securities at less than the current market price of the
Junior Preferred Stock or (iii) upon the distribution to holders of the Junior
Preferred Stock of evidences of indebtedness, cash or assets (excluding regular
quarterly cash dividends) or of subscription rights or warrants (other than
those referred to above).
With certain exceptions, no adjustment in the Purchase Price will be
required until cumulative adjustments amount to at least 1% of the Purchase
Price. No fractional Units will be issued and, in lieu thereof, an adjustment in
cash will be made based on the market price of the Junior Preferred Stock on the
last trading date prior to the date of exercise. At any time until 15 days
following the Stock Acquisition Date, or such later date not to exceed one year
from the Stock Acquisition Date which may beset by the Board of Directors while
the Rights are still redeemable, the Company may redeem the Rights in whole, but
not in part, at a price of $.01 per Right. Under certain circumstances set forth
in the Rights Agreement, the decision to redeem or extend the period of
redemption shall require the concurrence of a majority of the Continuing
Directors (as defined in the Rights Agreement). Immediately upon the action of
the Board of Directors ordering redemption of the Rights, the Rights will
terminate and the only right of the holders of Rights will be to receive the
$.01 redemption price.
The Rights will have certain anti-takeover effects. The Rights will
cause substantial dilution to any person or group that attempts to acquire the
Company without the approval of the Board of Directors. As a result, the overall
effect of the Rights may be to render more difficult or discourage any attempt
to acquire the Company even if such acquisition may be favorable to the
interests of the Company shareholders. Because the Board of Directors can redeem
the Rights or approve a Permitted Offer, the Rights should not interfere with a
merger or other business combination approved by the Board of Directors.
TEXAS BUSINESS COMBINATION LAW
The Company is governed by the provisions of the Texas Business
Combination Law, Part 13 of the Texas Business Corporation Act. In general, the
law prohibits a Texas "issuing public corporation" from engaging in a "business
combination" with an "affiliated shareholder," or an affiliate or associate
thereof, for a period of three years after the date of the transaction in which
the person became an affiliate shareholder, unless the business combination is
approved in a prescribed manner. "Business combinations" include mergers, asset
sales and other transactions resulting in a financial benefit to the affiliated
shareholder. An "affiliated shareholder" is a person who, together with
affiliates and associates, owns (or within three years, did own) 20% or more of
the corporation's voting stock. The applicability of the Texas Business
Combination Law to the Company may have an anti-takeover effect.
DESCRIPTION OF WARRANTS
The Company may issue Warrants for the purchase of Debt Securities or
shares of Preferred Stock or Common Stock. Warrants may be issued independently
or together with any Debt Securities or shares of Preferred Stock or Common
Stock offered by any Prospectus Supplement and may be attached to or separate
from such Debt Securities or shares of Preferred Stock or Common Stock. The
Warrants are to be issued under Warrant Agreements to be entered into between
the Company and ___________________, as Warrant Agent, or such other bank or
trust company as is named in the Prospectus Supplement relating to the
particular issue of Warrants (the "Warrant Agent"). The Warrant Agent will act
solely as an agent of the Company in connection with the Warrants and will not
assume any obligation or relationship of agency or trust for or with any holders
of Warrants or beneficial owners of Warrants. The following summaries of certain
provisions of the form of Warrant Agreement and Warrants do not purport to be
complete and are subject to, and are qualified in their entirety by reference
to, all the provisions of the applicable Warrant Agreement and the Warrants.
GENERAL
If Warrants are offered, the Prospectus Supplement will describe the
terms of the Warrants, including the following: (i) the offering price; (ii) the
currency, currencies or currency units for which Warrants may be purchased;
(iii) the designation, aggregate principal amount, currency, currencies or
currency units and terms of the Debt Securities purchasable upon exercise of the
Debt Warrants and the price at which such Debt Securities may be purchased upon
14
<PAGE>
such exercise; (iv) the designation, number of shares and terms of the Preferred
Stock purchasable upon exercise of the Preferred Stock Warrants and the price at
which such shares of Preferred Stock may be purchased upon such exercise; (v)
the designation, number of shares and terms of the Common Stock purchasable upon
exercise of the Common Stock Warrants and the price at which such shares of
Common Stock may be purchased upon such exercise; (vi) if applicable, the
designation and terms of the Debt Securities, Preferred Stock or Common Stock
with which the Warrants are issued and the number of Warrants issued with each
such Debt Security or share of Preferred Stock or Common Stock; (vii) if
applicable, the date on and after which the Warrants and the related Debt
Securities, Preferred Stock or Common Stock will be separately transferable;
(viii) the date on which the right to exercise the Warrants shall commence and
the date (the "Expiration Date") on which such right shall expire; (ix) whether
the Warrants will be issued in registered or bearer form; (x) a discussion of
certain federal income tax, accounting and other special considerations,
procedures and limitations relating to the Warrants; and (xi) any other terms of
the Warrants.
Warrants may be exchanged for new Warrants of different denominations,
may (if in registered form) be presented for registration of transfer, and may
be exercised at the corporate trust office of the Warrant Agent or any other
office indicated in the Prospectus Supplement. Before the exercise of their
Warrants, holders of Warrants will not have any of the rights of holders of the
Debt Securities or shares of Preferred Stock or Common Stock purchasable upon
such exercise, including the right to receive payments of principal of, any
premium on, or any interest on, the Debt Securities purchasable upon such
exercise or to enforce the covenants in the Indentures or to receive payments of
dividends, if any, on the Preferred Stock or Common Stock purchasable upon such
exercise or to exercise any applicable right to vote. If the Company maintains
the ability to reduce the exercise price of any Stock Warrant and such right is
triggered, the Company will comply with the federal securities laws, including
Rule 13e-4 under the Exchange Act, to the extent applicable.
EXERCISE OF WARRANTS
Each Warrant will entitle the holder to purchase such principal amount
of Debt Securities or such number of shares of Preferred Stock or Common Stock
at such exercise price as shall in each case be set forth in, or calculable
from, the Prospectus Supplement relating to the Warrant. Warrants may be
exercised at such times as are set forth in the Prospectus Supplement relating
to such Warrants. After the close of business on the Expiration Date (or such
later date to which such Expiration Date may be extended by the Company),
unexercised Warrants will become void.
Subject to any restrictions and additional requirements that may be set
forth in the Prospectus Supplement relating thereto, Warrants may be exercised
by delivery to the Warrant Agent of the certificate evidencing such Warrants
properly completed and duly executed and of payment as provided in the
Prospectus Supplement of the amount required to purchase the Debt Securities or
shares of Preferred Stock or Common Stock purchasable upon such exercise. The
exercise price will be the price applicable on the date of payment in full, as
set forth in the Prospectus Supplement relating to the Warrants. Upon receipt of
such payment and the certificate representing the Warrants to be exercised,
properly completed and duly executed at the corporate trust office of the
Warrant Agent or any other office indicated in the Prospectus Supplement, the
Company will, as soon as practicable, issue and deliver the Debt Securities or
shares of Preferred Stock or Common Stock purchasable upon such exercise. If
fewer than all of the Warrants represented by such certificate are exercised, a
new certificate will be issued for the remaining amount of Warrants.
ADDITIONAL PROVISIONS
The exercise price payable and the number of shares of Common Stock or
Preferred Stock purchasable upon the exercise of each Stock Warrant will be
subject to adjustment in certain events, including the issuance of a stock
dividend to holders of Common Stock or Preferred Stock, respectively, or a
combination, subdivision or reclassification of Common Stock or Preferred Stock,
respectively. In lieu of adjusting the number of shares of Common Stock or
Preferred Stock purchasable upon exercise of each Stock Warrant, the Company may
elect to adjust the number of Stock Warrants. No adjustment in the number of
shares purchasable upon exercise of the Stock Warrants will be required until
cumulative adjustments require an adjustment of at least 1% thereof. The Company
may, at its option, reduce the exercise price at any time. No fractional shares
will be issued upon exercise of Stock Warrants, but the Company will pay the
cash value of any fractional shares otherwise issuable. Notwithstanding the
foregoing, in case of any consolidation, merger, or sale or conveyance of the
property of the Company as an entirety or substantially as an entirety, the
holder of each outstanding Stock Warrant shall have the right upon the exercise
thereof to the kind and
15
<PAGE>
amount of shares of stock and other securities and property (including cash)
receivable by a holder of the number of shares of Common Stock or Preferred
Stock into which such Stock Warrants were exercisable immediately prior thereto.
NO RIGHTS AS SHAREHOLDERS
Holders of Stock Warrants will not be entitled, by virtue of being such
holders, to vote, to consent, to receive dividends, to receive notice as
shareholders with respect to any meeting of shareholders for the election of
directors of the Company or any other matter, or to exercise any rights
whatsoever as shareholders of the Company.
PLAN OF DISTRIBUTION
The Company may offer and sell the Securities (i) through underwriters
or dealers, (ii) through agents, (iii) directly to purchasers, or (iv) through a
combination of any such methods of sale. Any such underwriter, dealer or agent
may be deemed to be an underwriter within the meaning of the Securities Act.
Each Prospectus Supplement will set forth the terms of the offering of
the particular series of Securities to which the Prospectus Supplement relates,
including the name or names of any underwriters, dealers or agents, the purchase
price or prices of the Securities, the proceeds to the Company from the sale of
such series of Securities, the use of such proceeds, any initial public offering
price or purchase price of such series of Securities, any underwriting discount
or commission, any discounts, concessions or commissions allowed or reallowed or
paid by any underwriters to other dealers, any commissions paid to any agents
and the securities exchanges, if any, on which such Securities will be listed.
Any initial public offering price or purchase price and any discounts,
concessions or commissions allowed or reallowed or paid by any underwriter to
other dealers may be changed from time to time.
Sales of Common Stock offered pursuant to any Prospectus Supplement may
be effected from time to time in one or more transactions through the NYSE, or
in negotiated transactions or any combination of such methods of sale, at market
prices prevailing at the time of sale, at prices related to such prevailing
market prices, or at other negotiated prices.
Any underwriter may engage in stabilizing and syndicate covering
transactions in accordance with Rule 104 under the Exchange Act ("Rule 104").
Rule 104 permits stabilizing bids to purchase the underlying security so long as
the stabilizing bids do not exceed a specified maximum. The underwriters may
over-allot shares of the Common Stock in connection an offering of Common Stock,
thereby creating a short position in the underwriters' account. Syndicate
covering transactions involve purchases of the Debt Securities in the open
market after the distribution has been completed in order to cover syndicate
short positions. Stabilizing and syndicate covering transactions may cause the
price of the Debt Securities to be higher than it would otherwise be in the
absence of such transactions. These transactions, if commenced, may be
discontinued at any time.
In connection with the sale of Securities, underwriters or agents may
receive compensation from the Company, or from purchasers of Securities for whom
they may act as agents in the form of discounts, concessions or commissions.
Underwriters may sell Securities to or through dealers, and such dealers may
receive compensation in the form of discounts, concessions or commissions from
the underwriters and/or commissions from the purchasers for whom they may act as
agents. Underwriters, dealers and agents that participate in the distribution of
Securities may be deemed to be underwriters, and any discounts or commissions
received by them from the Company and any profit on the resale of Securities by
them may be deemed to be underwriting discounts and commissions under the
Securities Act. Any such underwriter or agent will be identified, and any such
compensation received from the Company will be described, in the applicable
Prospectus Supplement.
Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agent involved in the offer or
sale of the Securities in respect of which this Prospectus is delivered will be
named, and any commissions payable by the Company to such agent will be set
forth, in the Prospectus Supplement. Unless otherwise indicated in the
Prospectus Supplement, any such agent will be acting on a best efforts basis for
the period of its appointment.
16
<PAGE>
Under agreements which may be entered into by the Company, underwriters
and agents who participate in the distribution of Securities may be entitled to
indemnification by the Company against certain liabilities, including
liabilities under the Securities Act. The terms and conditions of such
indemnification will be described in an applicable Prospectus Supplement.
Underwriters, dealers and agents may be customers of, engage in transactions
with, or perform services for, the Company in the ordinary course of business.
If so indicated in the applicable Prospectus Supplement, the Company
will authorize underwriters or other persons acting as the Company's agent to
solicit offers by certain institutions to purchase Debt Securities, Preferred
Stock or Common Stock from the Company pursuant to contracts providing for
payment and delivery on a future date. Institutions with which such contracts
may be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions and others,
but in all cases such institutions must be approved by the Company. The
obligations of any purchaser under any such contract will be subject to the
condition that the purchase of the offered Debt Securities, Preferred Stock or
Common Stock shall not at the time of delivery be prohibited under the laws of
the jurisdiction to which such purchaser is subject. The underwriters and such
other agents will not have any responsibility in respect of the validity or
performance of such contracts.
The place and date of delivery for the Securities in respect of which
this Prospectus is being delivered will be set forth in the applicable
Prospectus Supplement.
Unless otherwise indicated in the applicable Prospectus Supplement, the
Securities in respect of which this Prospectus is being delivered (other than
Common Stock) will be a new issue of securities, will not have an established
trading market when issued and will not be listed on any securities exchange.
Any underwriters or agents to or through whom such Securities are sold by the
Company for public offering and sale may make a market in such Securities, but
such underwriters or agents will not be obligated to do so and may discontinue
any market making at any time without notice. No assurance can be given as to
the liquidity of the trading market for any such Securities.
Certain of the underwriters and their affiliates may from time to time
perform various commercial banking and investment banking services for the
Company, for which customary compensation is received.
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon for
the Company by Akin, Gump, Strauss, Hauer & Feld, L.L.P.
EXPERTS
The consolidated financial statements of the Company and subsidiaries
included in the Company's Annual Report on Form 10-K for the year ended December
31, 1997 have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in accounting and auditing.
17
<PAGE>
<TABLE>
<CAPTION>
======================================================= ======================================================
<S> <C>
NO DEALER, SALESPERSON OR ANY OTHER PERSON HAS
BEEN AUTHORIZED TO GIVE ANY INFORMATION OR MAKE ANY
REPRESENTATIONS IN CONNECTION WITH THE OFFER CONTAINED
HEREIN, OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS,
AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN $300,000,000
AUTHORIZED BY THE COMPANY. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY SECURITY OTHER THAN THOSE TO WHICH IT
RELATES NOR DOES IT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, ANY SECURITY TO ANY
PERSON IN ANY JURISDICTION IN WHICH SUCH OFFER OR
SOLICITATION IS NOT AUTHORIZED, OR IN WHICH THE PERSON EEX CORPORATION
MAKING SUCH OFFER OR SOLICITATION IS NOT QUALIFIED TO DO
SO, OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH DEBT SECURITIES
OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS PREFERRED STOCK
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY WARRANTS
CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS COMMON STOCK
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE
DATE HEREOF OR THAT THE INFORMATION CONTAINED HEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE HEREOF.
---------------------
----------------------
TABLE OF CONTENTS PROSPECTUS
PAGE ----------------------
----
Available Information...............................3
Incorporation of Certain Documents By Reference.....3
The Company.........................................4
Use of Proceeds.....................................5
Ratio of Earnings To Fixed Charges..................5
General Description of Securities and Risk Factors..5
Description of Debt Securities......................5
Description of Preferred Stock.....................11
Description of Common Stock........................11
Description of Warrants............................14
Plan of Distribution...............................16
Legal Matters......................................17
Experts............................................17
______________, 1998
======================================================= ======================================================
</TABLE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14 - OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following sets forth expenses, other than underwriting fees and
commissions, expected to be borne by the Registrant in connection with the
distribution of the securities being registered:
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission registration fee............................. $ 88,500
Blue Sky fees and expenses ..................................................... *
Rating agency fees ............................................................. *
Trustee fees and expenses ...................................................... *
Legal fees and expenses......................................................... *
Printing and engraving expenses ................................................ *
Accounting fees and expenses.................................................... *
Miscellaneous(1)................................................................ *
Total (2).............................................................. *
--------
*
========
</TABLE>
- -------------------
(1) Includes estimates of NYSE listing fees and NASD filing fees.
(2) All amounts listed above are estimates, except for the Securities and
Exchange Commission registration fee.
* To be filed by amendment.
ITEM 15 - INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant's Restated Articles of Incorporation (the "Articles")
provide that, to the fullest extent permitted by Texas law, directors of the
Registrant will not be liable to the Registrant or its shareholders for monetary
damages for any act or omission occurring in their capacity as a director. Texas
law does not currently authorize the elimination or limitation of the liability
of a director to the extent the director is found liable for (i) any breach of
the director's duty of loyalty to the Registrant or its shareholders, (ii) acts
or omissions not in good faith that constitute a breach of duty of the director
to the Registrant or which involve intentional misconduct or a knowing violation
of law, (iii) transactions from which the director received an improper benefit,
whether or not the benefit resulted from an action taken within the scope of the
director's office or (iv) acts or omissions for which the liability of a
director is expressly provided by an applicable statute.
The Articles and the Registrant's Bylaws (the "Bylaws") grant mandatory
indemnification to directors and officers of the Registrant to the fullest
extent authorized under the Texas Business Corporation Act (the "TBCA"). Under
the TBCA, a Texas corporation may in general indemnify a director or officer who
was, is or is threatened to be made a named defendant or respondent in a
proceeding by virtue of his position in the corporation if he acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and, in the case of criminal proceedings, had no
reasonable cause to believe his conduct was unlawful. Further, a Texas
corporation may indemnify a director or officer in an action brought by or in
the right of the corporation only if such director or officer was not found
liable to the corporation, unless or only to the extent that a court finds him
to be fairly and reasonably entitled to indemnify for such expenses as the court
deems proper, within statutory limits.
The above discussion of the Articles, Bylaws and TBCA is not intended
to be exhaustive and is qualified in its entirety by the Articles, Bylaws and
TBCA.
The Registrant maintains director and officer liability insurance
providing insurance protection for specified liabilities under specified terms.
II-1
<PAGE>
Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (the "Securities Act"), may be permitted to directors,
officers or persons controlling the Registrant pursuant to the foregoing
provisions, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the
Securities Act and is therefore unenforceable.
ITEM 16 - EXHIBITS
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C> <C>
4.1 Rights Agreement dated as of September 10, 1996, between the Registrant
(formerly Lone Star Energy Plant Operations) and Harris Trust Company of New
York as Rights Agent (incorporated by reference to Exhibit 10.21 to the
Registrant's Registration Statement on Form S-4 (No. 333-13241))
4.2 Form of Indenture for Senior Debt Securities
4.3 Form of Indenture for Senior Subordinated Debt Securities
4.4 Form of Senior Debt Security (included in Exhibit 4.2)
4.5 Form of Senior Subordinated Debt Security (included in Exhibit 4.3)
4.6 Form of Warrant Agreement
4.7 Form of Standard Stock Warrant Agreement Provisions
5.1 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
*12.1 Statement re Computation of Ratios
23.1 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included in Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
*24.1 Power of Attorney (included in the signature page of this Registration
Statement)
*25.1 Statement of Eligibility on Form T-1 of The Bank of New York, as trustee under
the Senior Indenture
*25.2 Statement of Eligibility on Form T-1 of Chase Bank of Texas, National
Association, as trustee under the Senior Subordinated Indenture
* Filed as the exhibit indicated to the Registration Statement on Form S-3 filed
with the Commission on September 28, 1998.
</TABLE>
ITEM 17 - UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of this Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in this Registration Statement;
II-2
<PAGE>
(iii) to include any material information with respect
to the plan of distribution not previously disclosed in this
Registration Statement or any material change to such
information in this Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply
if the information required to be included in a post-effective amendment by
these paragraphs is contained in periodic reports filed with or furnished by the
Registrant pursuant to Section 13 or 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement;
(2) that, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the Offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing this Amendment No. 1 to the Registration
Statement on Form S-3 and has duly caused this Amendment No. 1 to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas, on October 13, 1998.
EEX CORPORATION
By: /s/ T. M Hamilton
-------------------------
T. M Hamilton
Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities indicated on October 13, 1998.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ T. M Hamilton President, Chief Executive Officer, Chairman of the
- ----------------------------------------- Board and Director (Principal Executive Officer)
T. M Hamilton
*/s/ R. S. Langdon Executive Vice President, Finance and Administration,
- ----------------------------------------- Chief Financial Officer (Principal Financial Officer)
R. S. Langdon
*/s/ T. E. Coats Vice President and Controller (Principal
- ----------------------------------------- Accounting Officer)
T. E. Coats
*/s/ F. S. Addy Director
- -----------------------------------------
F. S. Addy
*/s/ B. A. Bridgewater, Jr. Director
- -----------------------------------------
B. A. Bridgewater, Jr.
*/s/ F. M. Lowther Director
- -----------------------------------------
F. M. Lowther
*/s/ M. P. Mallardi Director
- -----------------------------------------
M. P. Mallardi
</TABLE>
- ----------------------------
* By T.M Hamilton as Power of Attorney
S-1
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C> <C>
4.1 Rights Agreement dated as of September 10, 1996, between the Registrant
(formerly Lone Star Energy Plant Operations) and Harris Trust Company of New
York as Rights Agent (incorporated by reference to Exhibit 10.21 to the
Registrant's Registration Statement on Form S-4 (No. 333-13241))
4.2 Form of Indenture for Senior Debt Securities
4.3 Form of Indenture for Senior Subordinated Debt Securities
4.4 Form of Senior Debt Security (included in Exhibit 4.2)
4.5 Form of Senior Subordinated Debt Security (included in Exhibit 4.3)
4.6 Form of Warrant Agreement
4.7 Form of Standard Stock Warrant Agreement Provisions
5.1 Opinion of Akin, Gump, Strauss, Hauer & Feld, L.L.P.
*12.1 Statement re Computation of Ratios
23.1 Consent of Akin, Gump, Strauss, Hauer & Feld, L.L.P. (included in
Exhibit 5.1)
23.2 Consent of Ernst & Young LLP
*24.1 Power of Attorney (included in the signature page of this
Registration Statement)
*25.1 Statement of Eligibility on Form T-1 of The Bank of New York, as trustee under
the Senior Indenture
*25.2 Statement of Eligibility on Form T-1 of Chase Bank of Texas, National
Association, as trustee under the Senior Subordinated Indenture
* Filed as the exhibit indicated to the Registration Statement on Form S-3 filed
with the Commission on September 28, 1998.
</TABLE>
Exhibit 4.2
EEX CORPORATION
and
THE BANK OF NEW YORK,
Trustee
FORM OF
SENIOR INDENTURE
Dated as of ________, 1998
Providing for Issuance of Securities in Series
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION..........................1
Section 101. Definitions......................................................................1
Section 102. Compliance Certificates and Opinions.............................................7
Section 103. Form of Documents Delivered to Trustee...........................................8
Section 104. Acts of Securityholders..........................................................8
Section 105. Notices, etc., to Trustee and Company...........................................10
Section 106. Notices to Securityholders; Waiver..............................................10
Section 107. Conflict with Trust Indenture Act...............................................10
Section 108. Effect of Headings and Table of Contents........................................10
Section 109. Successors and Assigns..........................................................10
Section 110. Separability Clause.............................................................11
Section 111. Benefits of Indenture...........................................................11
Section 112. Governing Law...................................................................11
Section 113. Counterparts....................................................................11
Section 114. Judgment Currency...............................................................11
ARTICLE TWO SECURITY FORMS..................................................................11
Section 201. Forms Generally.................................................................11
Section 202. Forms of Securities.............................................................12
Section 203. Form of Trustee's Certificate of Authentication.................................12
Section 204. Securities Issuable in the Form of a Global Security............................12
ARTICLE THREE THE SECURITIES..................................................................14
Section 301. General Title; General Limitations; Issuable in Series; Terms of
Particular Series......................................................14
Section 302. Denominations...................................................................17
Section 303. Execution, Authentication and Delivery and Dating...............................17
Section 304. Temporary Securities............................................................19
Section 305. Registration, Transfer and Exchange.............................................19
Section 306. Mutilated, Destroyed, Lost and Stolen Securities................................20
Section 307. Payment of Interest; Interest Rights Preserved..................................21
Section 308. Persons Deemed Owners...........................................................22
Section 309. Cancellation....................................................................22
Section 310. Computation of Interest.........................................................22
Section 311. Medium-term Securities..........................................................23
Section 312. CUSIP Numbers...................................................................23
ARTICLE FOUR SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED
MONEYS.....................................................................23
Section 401. Applicability of Article........................................................23
</TABLE>
i
<PAGE>
<TABLE>
<S> <C> <C>
Section 402. Satisfaction and Discharge of Indenture; Defeasance.............................23
Section 403. Conditions of Defeasance........................................................25
Section 404. Application of Trust Money......................................................26
Section 405. Repayment to Company............................................................26
Section 406. Indemnity for U.S. Government Obligations.......................................26
Section 407. Reinstatement...................................................................26
ARTICLE FIVE REMEDIES........................................................................27
Section 501. Events of Default...............................................................27
Section 502. Acceleration of Maturity; Rescission and Annulment..............................28
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.................29
Section 504. Trustee May File Proofs of Claim................................................29
Section 505. Trustee May Enforce Claims Without Possession of Securities.....................30
Section 506. Application of Money Collected..................................................30
Section 507. Limitation on Suits.............................................................31
Section 508. Unconditional Right of Securityholders to Receive Principal,
Premium and Interest..........................................................32
Section 509. Restoration of Rights and Remedies..............................................32
Section 510. Rights and Remedies Cumulative..................................................32
Section 511. Delay or Omission Not Waiver....................................................32
Section 512. Control by Securityholders......................................................33
Section 513. Waiver of Past Defaults.........................................................33
Section 514. Undertaking for Costs...........................................................33
Section 515. Waiver of Stay or Extension Laws................................................34
ARTICLE SIX THE TRUSTEE.....................................................................34
Section 601. Certain Duties and Responsibilities.............................................34
Section 602. Notice of Defaults..............................................................35
Section 603. Certain Rights of Trustee.......................................................35
Section 604. Not Responsible for Recitals or Issuance of Securities..........................36
Section 605. May Hold Securities.............................................................36
Section 606. Money Held in Trust.............................................................37
Section 607. Compensation and Reimbursement..................................................37
Section 608. Disqualification; Conflicting Interests.........................................37
Section 609. Corporate Trustee Required; Eligibility.........................................37
Section 610. Resignation and Removal; Appointment of Successor...............................38
Section 611. Acceptance of Appointment by Successor..........................................39
Section 612. Merger, Conversion, Consolidation or Succession to Business.....................40
Section 613. Preferential Collection of Claims Against Company...............................40
Section 614. Appointment of Authenticating Agent.............................................44
ARTICLE SEVEN SECURITYHOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.......................46
Section 701. Company To Furnish Trustee Names and Addresses of Securityholders...............46
Section 702. Preservation of Information; Communications to Securityholders..................46
Section 703. Reports by Trustee..............................................................47
Section 704. Reports by Company..............................................................49
</TABLE>
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<TABLE>
<S> <C> <C>
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER...................................50
Section 801. Company May Consolidate, etc., only on Certain Terms............................50
Section 802. Successor Corporation Substituted...............................................50
ARTICLE NINE SUPPLEMENTAL INDENTURES.........................................................50
Section 901. Supplemental Indentures Without Consent of Securityholders......................50
Section 902. Supplemental Indentures with Consent of Securityholders.........................51
Section 903. Execution of Supplemental Indentures............................................52
Section 904. Effect of Supplemental Indentures...............................................53
Section 905. Conformity with Trust Indenture Act.............................................53
Section 906. Reference in Securities to Supplemental Indentures..............................53
ARTICLE TEN COVENANTS.......................................................................53
Section 1001. Payment of Principal, Premium and Interest......................................53
Section 1002. Maintenance of Office or Agency.................................................53
Section 1003. Money for Security Payments to be Held in Trust.................................53
Section 1004. Statement as to Compliance......................................................55
Section 1005. Corporate Existence.............................................................55
ARTICLE ELEVEN REDEMPTION OF SECURITIES........................................................55
Section 1101. Applicability of Article........................................................55
Section 1102. Election to Redeem; Notice to Trustee...........................................56
Section 1103. Selection by Trustee of Securities to Be Redeemed...............................56
Section 1104. Notice of Redemption............................................................56
Section 1105. Deposit of Redemption Price.....................................................57
Section 1106. Securities Payable on Redemption Date...........................................57
Section 1107. Securities Redeemed in Part.....................................................57
Section 1108. Provisions with Respect to any Sinking Funds....................................58
</TABLE>
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THIS SENIOR INDENTURE (the "Indenture") between EEX CORPORATION, a Texas
corporation (hereinafter called the "Company") having its principal office at
2500 CityWest Blvd., Suite 1400, Houston, Texas 77042, and The Bank of New York,
a New York banking corporation, as trustee (hereinafter called the "Trustee"),
is made and entered into as of this ___ day of ________, 1998.
Recitals of the Company
The Company has duly authorized the execution and delivery of this Indenture to
provide for the issuance of its Securities, notes, bonds or other evidences of
indebtedness, to be issued in one or more fully registered series.
All things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
Agreements of the Parties
To set forth or to provide for the establishment of the terms and conditions
upon which the Securities are and are to be authenticated, issued and delivered,
and in consideration of the premises and the purchase of Securities by the
Holders thereof, it is mutually covenanted and agreed as follows, for the equal
and proportionate benefit of all Holders of the Securities or of a series
thereof, as the case may be:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions. For all purposes of this Indenture and of any
indenture supplemental hereto, except as otherwise expressly provided or unless
the context otherwise requires:
(1) terms defined in this Article have the meanings assigned to them in
this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture
Act or by Commission rule under the Trust Indenture Act, either directly or by
reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles
and, except as otherwise herein expressly provided, the term "generally accepted
accounting principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally accepted in the
United States of America at the date of such computation;
(4) all references in this instrument to designated "Articles," "Sections"
and other subdivisions are to the designated Articles, Sections and other
subdivisions of this
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instrument as originally executed. 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; and
(5) "including" and words of similar import shall be deemed to be followed
by "without limitation."
Certain terms, used principally in Article Six, are defined in that
Article.
"Act," when used with respect to any Security-holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
authenticate Securities under Section 614.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each day which is neither a Saturday, Sunday or other
day on which banking institutions in the pertinent Place or Places of Payment
are authorized or required by law or executive order to be closed.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request," "Company Order" and "Company Consent" mean,
respectively, a written request, order or consent signed in the name of the
Company by its Chairman of the Board, President or a Vice President, and by its
Treasurer, an Assistant Treasurer, Controller, an Assistant Controller,
Secretary or an Assistant Secretary, and delivered to the Trustee.
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"Corporate Trust Office" means the principal office of the Trustee in New
York, New York at which at any particular time its corporate trust business
shall be principally administered, which office at the date hereof is located at
101 Barclay Street, 21st Floor, New York, New York 10286, except that with
respect to the presentation of Securities for payment or for registration of
transfer and exchange, such term shall mean the office or the agency of the
Trustee in said city at which at any particular time its corporate agency
business shall be conducted, which office at the date hereof is located at 101
Barclay Street, 21st Floor, New York, New York 10286.
"Debt" means indebtedness for money borrowed.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, unless otherwise specified by the Company pursuant to
either Section 204 or 301, with respect to Securities of any series issuable or
issued as a Global Security, The Depository Trust Company, New York, New York,
or any successor thereto registered as a clearing agency under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation.
"Event of Default" has the meaning specified in Article Five.
"Funded Debt" of any person means all indebtedness for borrowed money
created, incurred, assumed or guaranteed in any manner by such person, and all
indebtedness, contingent or otherwise, incurred or assumed by such person in
connection with the acquisition of any business, property or asset, which in
each case matures more than one year after, or which by its terms is renewable
or extendible or payable out of the proceeds of similar indebtedness incurred
pursuant to the terms of any revolving credit agreement or any similar agreement
at the option of such person for a period ending more than one year after the
date as of which Funded Debt is being determined; provided, however, that Funded
Debt shall not include (i) any indebtedness for the payment, redemption or
satisfaction of which money (or evidences of indebtedness, if permitted under
the instrument creating or evidencing such indebtedness) in the necessary amount
shall have been irrevocably deposited in trust with a trustee or proper
depository either on or before the maturity or redemption date thereof or (ii)
any indebtedness of such person to any of its Subsidiaries or of any Subsidiary
to such person or any other Subsidiary, to the extent reflected on the
consolidated balance sheet of the Company or Subsidiary, respectively, or (iii)
any indebtedness incurred in connection with the financing of operating,
construction or acquisition projects, provided that the recourse for such
indebtedness is limited to the assets of such projects.
"Global Security" means with respect to any series of Securities issued
hereunder, a Security which is executed by the Company and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and an indenture supplemental
hereto, if any, or Board Resolution and pursuant to a Company Request, which
shall be registered in the name of the Depositary or its nominee and which shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the Outstanding Securities of such series or any
portion thereof, in either case having the same
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<PAGE>
terms, including, without limitation, the same original issue date, date or
dates on which principal is due, and interest rate or method of determining
interest.
"Holder," when used with respect to any Security, means a Securityholder.
"Indenture" or "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of Securities
established as contemplated by Section 301.
"Interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any series of
Securities, means the Stated Maturity of any installment of interest on those
Securities.
"Maturity," when used with respect to any Securities, means the date on
which the principal of any such Security becomes due and payable as therein or
herein provided, whether on a Repayment Date, at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Mortgage" means any mortgage, pledge, lien, encumbrance, charge or
security interest of any kind.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee. Wherever this
Indenture requires that an Officers' Certificate be signed also by an engineer
or an accountant or other expert, such engineer, accountant or other expert
(except as otherwise expressly provided in this Indenture) may be in the employ
of the Company, and shall be acceptable to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may (except as
otherwise expressly provided in this Indenture) be an employee of or of counsel
to the Company. Such counsel shall be acceptable to the Trustee, whose
acceptance shall not be unreasonably withheld.
"Original Issue Discount Security" means (i) 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, and (ii) any other
Security deemed an Original Issue Discount Security for United States Federal
income tax purposes.
"Outstanding," when used with respect to Securities or Securities of any
series, means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
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<PAGE>
(A) such Securities theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(B) such Securities for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
in trust for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(C) such Securities in exchange for or in lieu of which other Securities have
been authenticated and delivered pursuant to this Indenture, or which shall
have been paid pursuant to the terms of Section 306 (except with respect to
any such Security as to which proof satisfactory to the Trustee is
presented that such Security is held by a person in whose hands such
Security is a legal, valid and binding obligation of the Company).
In determining whether the Holders of the requisite principal amount of
such Securities Outstanding have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, (i) the principal amount of any
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 the taking of such action upon a declaration of acceleration of the Maturity
thereof and (ii) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding. In determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer assigned to the corporate trust department of the Trustee knows to be
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
to act as owner with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or other entity or any agency or political subdivision
thereof.
"Place of Payment" means with respect to any series of Securities issued
hereunder the city or political subdivision so designated with respect to the
series of Securities in question in accordance with the provisions of Section
301.
"Predecessor Securities" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in
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<PAGE>
lieu of a lost, destroyed or stolen Security shall be deemed to evidence the
same debt as the lost, destroyed 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 specified in the Security at which it is to be redeemed pursuant
to this Indenture.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date specified in such Security as the Regular
Record Date.
"Repayment Date," when used with respect to any Security to be repaid,
means the date fixed for such repayment pursuant to such Security.
"Repayment Price," when used with respect to any Security to be repaid,
means the price at which it is to be repaid pursuant to such Security.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer or trust officer, the controller and any assistant
controller 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.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of indebtedness, as the case may
be, of any series authenticated and delivered from time to time under this
Indenture.
"Security Register" shall have the meaning specified in Section 305.
"Security Registrar" means the Person who keeps the Security Register
specified in Section 305.
"Securityholder" means a Person in whose name a Security is registered in
the Security Register.
"Special Record Date" for the payment of any Defaulted Interest (as defined
in Section 307) means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or any installment
of principal thereof or interest thereon means the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
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<PAGE>
"Subsidiary" of any specified corporation means any corporation at least a
majority of whose outstanding Voting Stock shall at the time be owned, directly
or indirectly, by the specified corporation or by one or more of its
Subsidiaries, or both.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, as in force at the date as of
which this instrument was executed except as provided in Section 905.
"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 and
include each Person who is then a Trustee hereunder.
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.
"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof.
"Vice President" when used with respect to the Company or the Trustee means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president," including, without limitation,
an assistant vice president.
"Voting Stock," as applied to the stock of any corporation, means stock of
any class or classes (however designated) having by the terms thereof ordinary
voting power to elect a majority of the members of the board of directors (or
other governing body) of such corporation other than stock having such power
only by reason of the happening of a contingency.
Section 102. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and, if
requested, 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.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except for the written statement
required by Section 1004) shall include
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(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 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
the other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Securityholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by
Securityholders or Securityholders of any series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Securityholders in person or by an 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. If any Securities are
denominated in coin or
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<PAGE>
currency other than that of the United States, then for the purposes of
determining whether the Holders of the requisite principal amount of Securities
have taken any action as herein described, the principal amount of such
Securities shall be deemed to be that amount of United States dollars that could
be obtained for such principal amount on the basis of the spot rate of exchange
into United States dollars for the currency in which such Securities are
denominated (as evidenced to the Trustee by an Officers' Certificate) as of the
date the taking of such action by the Holders of such requisite principal amount
is evidenced to the Trustee as provided in the immediately preceding sentence.
Such instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Securityholders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 601) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness to such execution or by
the certificate of any 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
an officer of a corporation or a member of a partnership, on behalf of such
corporation or partnership, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the person executing the same,
may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, by Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Securities
Outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that
purpose the Securities Outstanding shall be computed as of the record date;
provided that no such authorization, agreement or consent by the Holders on the
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the record
date.
(e) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Security shall bind the Holder of every
Security issued upon the transfer thereof or in exchange therefor or in lieu
thereof, in respect of anything done or suffered to be done by the Trustee or
the Company in reliance thereon whether or not notation of such action is made
upon such Security.
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Section 105. Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Securityholders 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 Securityholder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Securityholder shall be
sufficient for every purpose hereunder (except as provided in Section 501(4) or,
in the case of a request for repayment, as specified in the Security carrying
the right to repayment) if in writing and mailed, first-class postage prepaid,
to the Company addressed to it at the address of its principal office specified
in the first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
Section 106. Notices to Securityholders; Waiver. Where this Indenture or
any Security provides for notice to Securityholders of any event, such notice
shall be sufficiently given (unless otherwise herein or in such Security
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Securityholder 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 Securityholders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Securityholder
shall affect the sufficiency of such notice with respect to other
Securityholders. Where this Indenture or any Security 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 Securityholders 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 as a result of
a strike, work stoppage or otherwise, it shall be impractical to mail notice of
any event to any Securityholder when such notice is required to be given
pursuant to any provision of this Indenture, then any method of notification as
shall be satisfactory to the Trustee and the Company shall be deemed to be a
sufficient giving of such notice.
Section 107. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with the duties imposed by any of Sections 310 to
317, inclusive, of the Trust Indenture Act through the operation of Section
318(c) thereof, such imposed duties shall control.
Section 108. 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 109. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
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Section 110. Separability Clause. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 111. Benefits of Indenture. Nothing in this Indenture or in any
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, any Authenticating Agent or Paying Agent,
the Security Registrar and the Holders of Securities (or such of them as may be
affected thereby), any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 112. Governing Law. This Indenture shall be construed in accordance
with and governed by the laws of the State of New York, without regard to the
conflicts of law principles thereof.
Section 113. Counterparts. 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.
Section 114. Judgment Currency. The Company 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 premium or interest, if any, 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 New York Banking Day (as defined below) preceding that on which
final unappealable judgment is given 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 subsection (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. For purposes of the
foregoing, "New York Banking Day" means any day except a Saturday, Sunday or a
legal holiday in the City of New York or a day on which banking institutions in
the City of New York are authorized or required by law or executive order to
close.
ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally. The Securities shall have 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
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endorsements placed thereon, as may be required to comply with applicable laws
or regulations or with the rules of any securities exchange, or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. Any portion of the text of
any Security may be set forth on the reverse thereof, with an appropriate
reference thereto on the face of the Security.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities, subject, with
respect to the Securities of any series, to the rules of any securities exchange
on which such Securities are listed.
Section 202. Forms of Securities. Each Security shall be in one of the
forms approved from time to time by or pursuant to a Board Resolution, or
established in one or more indentures supplemental hereto. Prior to the delivery
of a Security to the Trustee for authentication in any form approved by or
pursuant to a Board Resolution, the Company shall deliver to the Trustee the
Board Resolution by or pursuant to which such form of Security has been
approved, which Board Resolution shall have attached thereto a true and correct
copy of the form of Security which has been approved thereby or, if a Board
Resolution authorizes a specific officer or officers to approve a form of
Security, a certificate of such officer or officers approving the form of
Security attached thereto. Any form of Security approved by or pursuant to a
Board Resolution must be acceptable as to form to the Trustee, such acceptance
to be evidenced by the Trustee's authentication of Securities in that form or a
certificate signed by a Responsible Officer of the Trustee and delivered to the
Company.
Section 203. Form of Trustee's Certificate of Authentication. The form of
Trustee's Certificate of Authentication for any Security issued pursuant to this
Indenture shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
The Bank of New York,
as Trustee,
Dated: ________________ By: ________________________
Authorized Signatory
Section 204. Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Sections 202 and 301 that
the Securities of a particular series are to be issued in whole or in part in
the form of one or more
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Global Securities, then the Company shall execute and the Trustee or its agent
shall, in accordance with Section 303 and the Company Request delivered to the
Trustee or its agent thereunder, authenticate and deliver, such Global Security
or Securities, which (i) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, the Outstanding Securities of such
series to be represented by such Global Security or Securities, or such portion
thereof as the Company shall specify in a Company Request, (ii) shall be
registered in the name of the Depositary for such Global Security or Securities
or its nominee, (iii) shall be delivered by the Trustee or its agent to the
Depositary or pursuant to the Depositary's instruction and (iv) shall bear a
legend substantially to the following effect: "Unless and until it is exchanged
in whole or in part for the individual Securities represented hereby, this
Global Security may not be transferred except as a whole by the Depositary to a
nominee of the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
(b) Notwithstanding any other provisions of this Section 204 or of Section
305, and subject to the provisions of paragraph (c) below, unless the terms of a
Global Security expressly permit such Global Security to be exchanged in whole
or in part for individual Securities, a Global Security may be transferred, in
whole but not in part and in the manner provided in Section 305, only to a
nominee of the Depositary for such Global Security, or to the Depositary, or a
successor Depositary for such Global Security selected or approved by the
Company, or to a nominee of such successor Depositary unless (i) such Depositary
(A) has notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or (B) has ceased to be a clearing agency
registered as such under the Exchange Act or announces an intention permanently
to cease business or does in fact do so or (ii) there shall have occurred and be
continuing an Event of Default with respect to such Global Security.
(c) (i) If at any time the Depositary for a Global Security notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Security or if at any time the Depositary for the Securities for such series
ceases to be a clearing agency registered under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation, the Company shall
appoint a successor Depositary with respect to such Global Security. If a
successor Depositary for such Global Security is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee or its agent, upon
receipt of a Company Request for the authentication and delivery of individual
Securities of such series in exchange for such Global Security, will
authenticate and deliver, individual Securities of such series of like tenor and
terms in an aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security.
(ii) The Company may at any time and in its sole discretion determine that
the Securities of any series or portion thereof issued or issuable in the
form of one or more Global Securities shall no longer be represented by
such Global Security or Securities. In such event the Company will execute,
and the Trustee, upon receipt of a Company Request for the authentication
and delivery of individual Securities of such
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series in exchange in whole or in part for such Global Security, will
authenticate and deliver individual Securities of such series of like tenor
and terms in definitive form in an aggregate principal amount equal to the
principal amount of such Global Security or Securities representing such
series or portion thereof in exchange for such Global Security or
Securities.
(iii) If specified by the Company pursuant to Sections 202 and 301 with
respect to Securities issued or issuable in the form of a Global Security,
the Depositary for such Global Security may surrender such Global Security
in exchange in whole or in part for individual Securities of such series of
like tenor and terms in definitive form on such terms as are acceptable to
the Company and such Depositary. Thereupon the Company shall execute, and
the Trustee or its agent shall authenticate and deliver, without service
charge, (1) to each Person specified by such Depositary a new Security or
Securities of the same series of like tenor and terms and of any authorized
denomination as requested by such Person in 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 of like
tenor and terms and in an authorized denomination equal to the difference,
if any, between the principal amount of the surrendered Global Security and
the aggregate principal amount of Securities delivered to the Holders
thereof.
(iv) In any exchange provided for in any of the preceding three
subsections, the Company will execute and the Trustee or its agent will
authenticate and deliver individual Securities in definitive registered
form in authorized denominations. Upon the exchange of the entire principal
amount of a Global Security for individual Securities, such Global Security
shall be canceled by the Trustee or its agent. Except as provided in the
preceding paragraph, Securities issued in exchange for a Global Security
pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or the Security Registrar. The
Trustee or the Security Registrar shall deliver such Securities to the
Persons in whose names such Securities are so registered.
ARTICLE THREE
THE SECURITIES
Section 301. General Title; General Limitations; Issuable in Series; Terms
of Particular Series. The aggregate principal amount of Securities which may be
authenticated and delivered and Outstanding under this Indenture is not limited.
The Securities may be issued in one or more series up to an aggregate
principal amount of Securities as from time to time may be authorized by the
Board of Directors. All Securities of each series under this Indenture shall in
all respects be equally and ratably entitled to the benefits hereof with respect
to such series without preference, priority or distinction on account of the
actual time of the authentication and delivery or Stated Maturity of the
Securities of such series.
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Each series of Securities shall be created either by or pursuant to a Board
Resolution or by or pursuant to an indenture supplemental hereto. The Securities
of each such series may bear such date or dates, be payable at such place or
places, have such Stated Maturity or Maturities, be issuable at such premium
over or discount from their face value, bear interest at such rate or rates
(which may be fixed or floating), from such date or dates, payable in such
installments and on such dates and at such place or places to the Holders of
Securities registered as such on such Regular Record Dates, or may bear no
interest, and may be redeemable or repayable at such Redemption Price or Prices
or Repayment Price or Prices, as the case may be, whether at the option of the
Holder or otherwise, and upon such terms, all as shall be provided for in or
pursuant to the Board Resolution or in or pursuant to the supplemental indenture
creating that series. There may also be established in or pursuant to a Board
Resolution or in or pursuant to a supplemental indenture prior to the issuance
of Securities of each such series, provision for:
(1) the exchange or conversion of the Securities of that series, at the
option of the Holders thereof, for or into new Securities of a different series
or other securities or other property of the Company or another Person,
including shares of capital stock of the Company or any subsidiary of the
Company or of any other Person or securities directly or indirectly convertible
into or exchangeable for any such shares;
(2) a sinking or purchase fund or other analogous obligation;
(3) if other than U.S. dollars, the currency or currencies or units based
on or related to currencies (including European Currency Units) in which the
Securities of such series shall be denominated and in which payments of
principal of, and any premium and interest on, such Securities shall or may be
payable;
(4) if the principal of (and premium, if any) or interest, if any, on the
Securities of such series are to be payable, at the election of the Company or a
holder thereof, in a currency or currencies or units based on or related to
currencies (including European Currency Units) other than that in which the
Securities are stated to be payable, the period or periods within which, and the
terms and conditions upon which, such election may be made;
(5) if the amount of payments of principal of (and premium, if any) or
interest, if any, on the Securities of such series may be determined with
reference to an index based on (i) a currency or currencies or units based on or
related to currencies (including European Currency Units) other than that in
which the Securities are stated to be payable, (ii) changes in the price of one
or more other securities or groups or indexes of securities or (iii) changes in
the prices of one or more commodities or groups or indexes of commodities, or
any combination of the foregoing, the manner in which such amounts shall be
determined;
(6) if the aggregate principal amount of the Securities of that series is
to be limited, such limitations, and the maturity date of the principal amount
of the Securities of that series (which may be fixed or extendible), and the
rate or rates (which may be fixed or floating) per annum at which the Securities
of that series will bear interest, if any, or the method of determining such
rate or rates, and the payment dates and record dates relating to such interest
payments;
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(7) the exchange of Securities of that series, at the option of the Holders
thereof, for other Securities of the same series of the same aggregate principal
amount of a different authorized kind or different authorized denomination or
denominations, or both;
(8) the appointment by the Trustee of an Authenticating Agent in one or
more places other than the location of the office of the Trustee with power to
act on behalf of the Trustee and subject to its direction in the authentication
and delivery of the Securities of any one or more series in connection with such
transactions as shall be specified in the provisions of this Indenture or in or
pursuant to the Board Resolution or the supplemental indenture creating such
series;
(9) the percentage of their principal amount at which such Securities will
be issued, and the portion of the principal amount of Securities of the series,
if other than the total principal amount thereof, which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
provable in bankruptcy pursuant to Section 504;
(10) any Event of Default with respect to the Securities of such series, if
not set forth herein and any additions, deletions or other changes to the Events
of Default set forth herein that shall be applicable to the Securities of such
series (including a provision making any Event of Default set forth herein
inapplicable to the Securities of that series);
(11) any covenant solely for the benefit of the Securities of such series
and any additions, deletions or other changes to the provisions of Article Ten
or any definitions relating to such Article that shall be applicable to the
Securities of such series (including a provision making any Section of such
Article inapplicable to the Securities of such series);
(12) the applicability of Section 402(b) of this Indenture to the
Securities of such series;
(13) if the Securities of the series shall be issued in whole or in part in
the form of a Global Security or Global Securities, the terms and conditions, if
any, upon which such Global Security or Global Securities may be exchanged in
whole or in part for other individual Securities; and the Depositary for such
Global Security or Global Securities (if other than the Depositary specified in
Section 101 hereof);
(14) the subordination of the Securities of such series to any other
indebtedness of the Company, including without limitation, the Securities of any
other series; and
(15) any other terms of the series, which shall not be inconsistent with
the provisions of this Indenture, all upon such terms as may be determined in or
pursuant to a Board Resolution or in or pursuant to a supplemental indenture
with respect to such series. All Securities of the same series shall be
substantially identical in tenor and effect, except as to denomination.
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The form of the Securities of each series shall be established pursuant to
the provisions of this Indenture in or pursuant to the Board Resolution or in or
pursuant to the supplemental indenture creating such series. The Securities of
each series shall be distinguished from the Securities of each other series in
such manner, reasonably satisfactory to the Trustee, as the Board of Directors
may determine.
Unless otherwise provided with respect to Securities of a particular
series, the Securities of any series may only be issuable in registered form,
without coupons.
Any terms or provisions in respect of the Securities of any series issued
under this Indenture may be determined pursuant to this Section by providing in
a Board Resolution or supplemental indenture for the method by which such terms
or provisions shall be determined.
Section 302. Denominations. The Securities of each series shall be issuable
in such denominations and currency as shall be provided in the provisions of
this Indenture or in or pursuant to the Board Resolution or the supplemental
indenture creating such series. In the absence of any such provisions with
respect to the Securities of any series, the Securities of that series shall be
issuable only in fully registered form in denominations of $1,000 and any
integral multiple thereof.
Section 303. Execution, Authentication and Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President, one of its Vice Presidents or its Treasurer under its
corporate seal reproduced thereon and attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication; and the Trustee shall, upon Company Order,
authenticate and make available for delivery such Securities as in this
Indenture provided and not otherwise.
Prior to any such authentication and delivery, the Trustee shall be
entitled to receive, in addition to any Officers' Certificate and Opinion of
Counsel required to be furnished to the Trustee pursuant to Section 102, and the
Board Resolution and any certificate relating to the issuance of the series of
Securities required to be furnished pursuant to Section 202, an Opinion of
Counsel stating that:
(1) all instruments furnished to the Trustee conform to the requirements of
the Indenture and constitute sufficient authority hereunder for the Trustee to
authenticate and deliver such Securities;
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(2) the form and terms (or in connection with the issuance of medium-term
Securities under Section 311, the manner of determining the terms) of such
Securities have been established in conformity with the provisions of this
Indenture;
(3) all laws and requirements with respect to the execution and delivery by
the Company of such Securities have been complied with, the Company has the
corporate power to issue such Securities and such Securities have been duly
authorized and delivered by the Company and, assuming due authentication and
delivery by the Trustee, constitute legal, valid and binding obligations of the
Company enforceable in accordance with their terms (subject, as to enforcement
of remedies, to (i) applicable bankruptcy, reorganization, insolvency,
fraudulent conveyance or transfer, moratorium or other laws and legal principles
affecting creditors' rights generally from time to time in effect; (ii) to
general equitable principles, whether applied in an action at law or in equity
and the exercise of discretionary authority of any count before which a
proceeding may be brought; (iii) commercial reasonableness and unconscionability
and an implied covenant of good faith and fair dealing; and (iv) the power of
the courts to award damages in lieu of equitable remedies) and entitled to the
benefits of this Indenture, equally and ratably with all other Securities, if
any, of such series Outstanding; and
(4) such other matters as the Trustee may reasonably request;
and, if the authentication and delivery relates to a new series of Securities
created by an indenture supplemental hereto, also stating that all laws and
requirements with respect to the form and execution by the Company of the
supplemental indenture with respect to that series of Securities have been
complied with, the Company has corporate power to execute and deliver any such
supplemental indenture and has taken all necessary corporate action for those
purposes and any such supplemental indenture has been executed and delivered and
constitutes the legal, valid and binding obligation of the Company enforceable
in accordance with its terms (subject, as to enforcement of remedies, to (i)
applicable bankruptcy, reorganization, insolvency, fraudulent conveyance or
transfer, moratorium or other laws and legal principles affecting creditors'
rights generally from time to time in effect; (ii) to general equitable
principles, whether applied in an action at law or in equity and the exercise of
discretionary authority of any count before which a proceeding may be brought;
(iii) commercial reasonableness and unconscionability and an implied covenant of
good faith and fair dealing; and (iv) the power of the courts to award damages
in lieu of equitable remedies).
The Trustee shall not be required to authenticate such Securities if the
issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture.
Unless otherwise provided in the form of Security for any series, all
Securities shall be dated the date of their authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized
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signatory, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder.
Section 304. Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute, and, upon receipt of the
documents required by Section 303, together with a 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 such series to be prepared without unreasonable delay.
After the preparation of definitive Securities, 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, without charge to the Holder; and upon
surrender for cancellation of any one or more temporary Securities the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of such series of
authorized denominations and of like tenor and terms. Until so exchanged the
temporary Securities of such series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
Section 305. Registration, Transfer and Exchange. The Company shall keep or
cause to be kept a register (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, or of Securities
of a particular series, and for transfers of Securities or of Securities of such
series. Any such register shall be in written form or in any other form capable
of being converted into written form within a reasonable time. At all reasonable
times the information contained in such register or registers shall be available
for inspection by the Trustee at the office or agency to be maintained by the
Company as provided in Section 1002.
Subject to Section 204, upon surrender for transfer of any Security of any
series at the office or agency of the Company in a Place of Payment, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, in the name of the designated transferee or transferees, one or more
new Securities of such series of any authorized denominations, of a like
aggregate principal amount and Stated Maturity and of like tenor and terms.
Subject to Section 204, at the option of the Holder, Securities of any
series may be exchanged for other Securities of such series of any authorized
denominations, of a like aggregate principal amount and Stated Maturity and of
like tenor and terms, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Securityholder making the exchange is
entitled to receive.
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All Securities issued upon any transfer or exchange of Securities shall be
the valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Every Security presented or surrendered for transfer or 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.
Unless otherwise provided in the Security to be transferred or exchanged,
no service charge shall be made on any Securityholder for any transfer or
exchange of Securities, but the Company may (unless otherwise provided in such
Security) require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Securities, other than exchanges pursuant to Section 304 or 906 not
involving any transfer.
The Company shall not be required (i) to issue, transfer or exchange any
Security 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
such series selected for redemption under Section 1103 and ending at the close
of business on the date of such mailing, or (ii) to transfer or exchange any
Security so selected for redemption in whole or in part, except for the portion
of such Security not so selected for redemption.
None of the Company, the Trustee, any agent of the Trustee, any Paying
Agent or the Security Registrar 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.
The Company initially appoints the Trustee to act as Security Registrar for
the Securities on its behalf. The Company may at any time and from time to time
authorize any Person to act as Security Registrar in place of the Trustee with
respect to any series of Securities issued under this Indenture.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities. If (i) any
mutilated Security is surrendered to the Trustee, or the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Security, a new Security
of like tenor, series, Stated Maturity and principal amount, bearing a number
not contemporaneously Outstanding.
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In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, 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 the same 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 307. Payment of Interest; Interest Rights Preserved. Unless
otherwise provided with respect to such Security pursuant to Section 301,
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 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 registered Holder on the
relevant Regular Record Date by virtue of his having been such Holder; and,
except as hereinafter provided, such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (1) or Clause (2)
below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names any such Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
such Security and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited 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 nor 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
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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 the Holder of each such Security
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
mailed as aforesaid, such Defaulted Interest shall be paid to the Persons
in whose names such Securities (or their respective Predecessor Securities)
are registered 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 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.
If any installment of interest the Stated Maturity of which is on or prior
to the Redemption Date for any Security called for redemption pursuant to
Article Eleven is not paid or duly provided for on or prior to the Redemption
Date in accordance with the foregoing provisions of this Section, such interest
shall be payable as part of the Redemption Price of such Securities.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners. The Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name any Security is
registered in the Security Register as the owner of such Security for the
purpose of receiving payment of principal of (and premium, if any), and (subject
to Section 307) interest on, such Security and for all other purposes
whatsoever, whether or not such Security be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
Section 309. Cancellation. All Securities surrendered for payment,
redemption, transfer, conversion or exchange or credit against a sinking fund
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and, if not already canceled, 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 all Securities so delivered shall be
promptly canceled by the Trustee. No Security 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. The Trustee shall return all canceled
Securities to the Company.
Section 310. Computation of Interest. Unless otherwise provided as
contemplated in Section 301, interest on the Securities shall be calculated on
the basis of a 360-day year of twelve 30-day months.
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Section 311. Medium-term Securities. Notwithstanding any contrary provision
herein, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary for the Company to deliver to the Trustee an
Officers' Certificate, Board Resolution, supplemental indenture, Opinion of
Counsel or Company Request otherwise required pursuant to Sections 202, 301 and
303 at or prior to the time of authentication of each Security of such series if
such documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first Security of such series to be
issued; provided that any subsequent request by the Company to the Trustee to
authenticate Securities of such series upon original issuance shall constitute a
representation and warranty by the Company that as of the date of such request,
the statements made in the Officers' Certificate delivered pursuant to Section
102 shall be true and correct as if made on such date.
An Officers' Certificate, supplemental indenture or Board Resolution
delivered by the Company to the Trustee in the circumstances set forth in the
preceding paragraph may provide that Securities which are the subject thereof
will be authenticated and delivered by the Trustee or its agent on original
issue from time to time upon the telephonic or written order of persons
designated in such Officers' Certificate, Board Resolution or supplemental
indenture (any such telephonic instructions to be confirmed promptly in writing
by such persons) and that such persons are authorized to determine, consistent
with such Officers' Certificate, supplemental indenture or Board Resolution,
such terms and conditions of said Securities as are specified in such Officers'
Certificate, supplemental indenture or Board Resolution.
Section 312. CUSIP Numbers. The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such 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 numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE; UNCLAIMED MONEYS
Section 401. Applicability of Article. If, pursuant to Section 301,
provision is made for the defeasance of Securities of a series and if the
Securities of such series are denominated and payable only in Dollars (except as
provided pursuant to Section 301), then the provisions of this Article Four
relating to defeasance of Securities shall be applicable except as otherwise
specified pursuant to Section 301 for Securities of such series. Defeasance
provisions, if any, for Securities denominated in a foreign currency may be
specified pursuant to Section 301.
Section 402. Satisfaction and Discharge of Indenture; Defeasance.
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(a) This Indenture shall cease to be of further effect with respect to any
series of Securities (except as to any surviving rights of conversion, of
transfer or exchange of Securities of such series expressly provided for herein
or in the form of Security for such series, and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series, when (1) either
(A) all Securities of that series theretofore authenticated and delivered (other
than (i) Securities of such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306, and (ii) Securities
of such series 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 1003) have been
delivered to the Trustee canceled or for cancelation; or (B) all such Securities
of that series not theretofore delivered to the Trustee canceled or for
cancelation (i) have become due and payable, or (ii) will become due and payable
at their Stated Maturity within one year, or (iii) are to be called for
redemption within one year under arrangements sarisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company, and the Company, in the case of (i), (ii) or (iii)
above, has deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount sufficient to pay and discharge the entire
indebtedness on such Securities not theretofore delivered to the Trustee
canceled or for cancelation, 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 the Securities paid all other sums payable hereunder
by the Company with respect to the Securities of such series; and (3) the
Company has delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture with respect to the
Securities of such series have been complied with. Notwithstanding the
satisfaction and discharge of this Indenture with respect to any series of
Securities, the obligations of the Company to the Trustee with respect to that
series under Section 607 shall survive and the obligations of the Company to the
Trustee under Section 404 and 1003 shall survive.
(b) Subject to Sections 402(c), 403 and 407, the Company at any time may
terminate, with respect to Securities of a particular series, (i) all its
obligations under the Securities of such series and this Indenture with respect
to the Securities of such series ("legal defeasance option") or (ii) its
obligations with respect to the Securities of such series under Section 1006 or
1007 and clause (3) of Section 801 ("covenant defeasance option"). The Company
may exercise its legal defeasance option notwithstanding its prior exercise of
its covenant defeasance option.
If the Company exercises its legal defeasance option, payment of the
Securities of the defeased series may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option, payment of the
Securities may not be accelerated because of an Event of Default specified in
Section 501(4) to the extent it relates to Section 1006 or 1007.
Upon satisfaction of the conditions set forth herein and upon request of
the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
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(c) Notwithstanding clause (a) above and the exercise of the legal
defeasance option in clause (b) above, the Company's obligations in Sections
304, 305, 306, 310, 1002, 701, 607, 608, 404, 405, 406 and 407 shall survive
until the Securities of the defeased series have been paid in full. Thereafter,
the Company's obligations in Sections 607, 405 and 406 shall survive.
Section 403. Conditions of Defeasance. The Company may exercise its legal
defeasance option or its covenant defeasance option with respect to Securities
of a particular series only if:
(1) the Company irrevocably deposits in trust with the Trustee money or
U.S. Government Obligations for the payment of principal of, and premium, if
any, and interest on, the Securities of such series to maturity or redemption,
as the case may be;
(2) the Company delivers to the Trustee a certificate from a nationally
recognized firm of independent public accountants expressing their opinion that
the payments of principal and interest when due and without reinvestment on the
deposited U.S. Government Obligations plus any deposited money without
investment will provide cash at such times and in such amounts as will be
sufficient to pay the principal, premium, if any, and interest when due on all
the Securities of such series to maturity or redemption, as the case may be;
(3) 91 days pass after the deposit is made and during the 91-day period no
Default specified in Section 501(5) or (6) with respect to the Company occurs
which is continuing at the end of the period;
(4) no Default has occurred and is continuing on the date of such deposit
and after giving effect thereto;
(5) the deposit does not constitute a default under any other agreement
binding on the Company;
(6) the Company delivers to the Trustee an Opinion of Counsel to the effect
that the trust resulting from the deposit does not constitute, or is qualified
as, a regulated investment company under the Investment Company Act of 1940;
(7) in the event of the legal defeasance option, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the Company has
received from the Internal Revenue Service a ruling, or (ii) since the date of
this Indenture there has been a change in the applicable Federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel
shall confirm that, the Holders of Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
had not occurred;
(8) in the event of the covenant defeasance option, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders of
Securities of such
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series will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not occurred;
and
(9) the Company delivers to the Trustee an Officers' Certificate and an
Opinion of Counsel, each stating that all conditions precedent to the defeasance
and discharge of the Securities of such series as contemplated by this Article
Four have been complied with.
Before or after a deposit, the Company may make arrangements satisfactory
to the Trustee for the redemption of Securities of such series at a future date
in accordance with Article Four.
Section 404. Application of Trust Money. The Trustee shall hold in trust
money or U.S. Government Obligations deposited with it pursuant to this Article
Four. It shall apply the deposited money and the money from U.S. Government
Obligations through any paying agent and in accordance with this Indenture to
the payment of principal of, and premium, if any, and interest on, the
Securities of the defeased series.
Section 405. Repayment to Company. The Trustee and any paying agent shall
promptly turn over to the Company upon request any excess money or securities
held by them at any time.
Subject to any applicable abandoned property law, the Trustee and any
paying agent shall pay to the Company upon request any money held by them for
the payment of principal, premium or interest that remains unclaimed for two
years, and, thereafter, Holders entitled to such money must look to the Company
for payment as general creditors and all liability of the Trustee or such paying
agent with respect to such money shall thereupon cease.
Section 406. Indemnity for U.S. Government Obligations. The Company shall
pay and shall indemnify the Trustee and the Holders against any tax, fee or
other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such U.S. Government
Obligations.
Section 407. Reinstatement. If the Trustee or any paying agent is unable to
apply any money or U.S. Government Obligations in accordance with this Article
Four by reason of any legal proceeding or by reason of any order or judgment of
any court or government authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture and
the Securities of the defeased series shall be revived and reinstated as though
no deposit had occurred pursuant to this Article Four until such time as the
Trustee or any paying agent is permitted to apply all such money or U.S.
Government Obligations in accordance with this Article Four; provided, however,
that, if the Company makes any payment of principal or premium, if any, or
interest, if any, on any Securities following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
paying agent.
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ARTICLE FIVE
REMEDIES
Section 501. Events of Default. "Event of Default," wherever used herein,
means with respect to any series of Securities 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), unless such event is either inapplicable
to a particular series or it is specifically deleted or modified in the
supplemental indenture creating such series of Securities or in the form of
Security for such series:
(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
90 days; or
(2) default in the payment of the principal of (or premium, if any, on) any
Security of that series at its Maturity; or
(3) default in the payment of any sinking or purchase fund or analogous
obligation when the same becomes due by the terms of the Securities of such
series; or
(4) default in the performance, or breach, of any covenant or warranty of
the Company in this Indenture in respect of the Securities of such series (other
than a covenant or warranty in respect of the Securities of such series a
default in the performance of which or the breach of which is elsewhere in this
Section specifically dealt with), all of such covenants and warranties in the
Indenture which are not expressly stated to be for the benefit of a particular
series of Securities being deemed in respect of the Securities of all series for
this purpose, 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 such 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 entry of an order for relief against the Company under the Federal
Bankruptcy Code by a court having jurisdiction in the premises or a decree or
order by a court having jurisdiction in the premises adjudging the Company a
bankrupt or insolvent under any other applicable Federal or State law, or the
entry of a decree or order approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company under the Federal Bankruptcy Code or any other applicable Federal or
State law, or appointing a receiver, liquidator, assignee, trustee, sequestrator
(or other similar official) of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for a period of
60 consecutive days; or
(6) the consent by the Company to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under the Federal Bankruptcy Code or
any other applicable Federal or State law, or the
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consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company in furtherance of any such action;
or
(7) any other Event of Default provided in the supplemental indenture under
which such series of Securities is issued or in the form of Security for such
series.
Section 502. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default described in paragraph (1), (2), (3), (4) or (7) (if the Event
of Default under paragraph (4) or (7) is with respect to less than all series of
Securities then Outstanding) of Section 501 occurs and is continuing with
respect to any series, then and in each and every such case, unless the
principal of all the Securities of such series shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding hereunder
(each such series acting as a separate class), by notice in writing to the
Company (and to the Trustee if given by Holders), may declare the principal
amount (or, if the Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of all the Securities of such series then Outstanding and
all accrued interest thereon to be due and payable immediately, and upon any
such declaration the same shall become and shall be immediately due and payable,
anything in this Indenture or in the Securities of such series contained to the
contrary notwithstanding. If an Event of Default described in paragraph (4) or
(7) (if the Event of Default under paragraph (4) or (7) is with respect to all
series of Securities then Outstanding), or (5) or (6) of Section 501 occurs and
is continuing, then and in each and every such case, unless the principal of all
the Securities shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of all the
Securities then Outstanding hereunder (treated as one class), by notice in
writing to the Company (and to the Trustee if given by Holders), may declare the
principal amount (or, if any Securities are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms thereof)
of all the Securities then Outstanding and all accrued interest thereon to be
due and payable immediately, and upon any such declaration the same shall become
and shall be immediately due and payable, anything in this Indenture or in the
Securities contained to the contrary notwithstanding.
At any time after such a declaration of acceleration has been made with
respect to the Securities of any series and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay
(A) all overdue installments of interest on the Securities of such
series,
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(B) the principal of (and premium, if any, on) any Securities of such
series which have become due otherwise than by such declaration of
acceleration, and interest thereon at the rate or rates prescribed therefor
by the terms of the Securities of such series, to the extent that payment
of such interest is lawful,
(C) interest upon overdue installments of interest at the rate or
rates prescribed therefor by the terms of the Securities of such series to
the extent that payment of such interest is lawful, 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 all other amounts due the Trustee under
Section 607;
and
(2) all Events of Default with respect to such series of Securities, other
than the nonpayment of the principal of the Securities of such series which have
become due solely by such acceleration, have been cured or waived as provided in
Section 513. No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Security of any series when such interest becomes due and payable, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof, or
(3) default is made in the payment of any sinking or purchase fund or
analogous obligation when the same becomes due by the terms of the
Securities of any series,
and any such default continues for any period of grace provided with
respect to the Securities of such series, the Company will, upon demand of the
Trustee, pay to it, for the benefit of the Holder of any such Security (or the
Holders of any such series in the case of Clause (3) above), the whole amount
then due and payable on any such Security (or on the Securities of any such
series in the case of Clause (3) above) for principal (and premium, if any) and
interest, with interest, to the extent that payment of such interest shall be
legally enforceable, upon the overdue principal (and premium, if any) and upon
overdue installments of interest, at such rate or rates as may be prescribed
therefor by the terms of any such Security (or of Securities of any such series
in the case of Clause (3) above); 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 and all other amounts due the Trustee under
Section 607.
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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, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities of such series and
collect the money adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to any series of Securities 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 504. Trustee May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor 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 for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such
proceedings 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 and
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 all other amounts due the Trustee
under Section 607) and of the Securityholders 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 receiver, assignee, trustee, liquidator, sequestrator (or other
similar official) in any such judicial proceeding is hereby authorized by each
Securityholder to make such payment to the Trustee and in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan or reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
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Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities of any
series may be prosecuted and enforced by the Trustee without the possession of
any of the Securities of such series or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agent and counsel, be
for the ratable benefit of the Holders of the Securities of the series in
respect of which such judgment has been recovered.
Section 506. Application of Money Collected. Any money collected by the
Trustee with respect to a series of Securities pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities of such series 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 607.
SECOND: To the payment of the amounts then due and unpaid upon the
Securities of that series for principal (and premium, if any) and interest, 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 premium, if any) and
interest, respectively.
THIRD: To the Company.
Section 507. Limitation on Suits. No Holder of any Security of any series
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to Securities of
such series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of such 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
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(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of such
series;
it being understood and intended that no one or more Holders of Securities of
such series 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 Holders of Securities of such series, or to obtain or to
seek to obtain priority or preference over any other such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal and proportionate benefit of all the Holders of all Securities of such
series.
Section 508. Unconditional Right of Securityholders to Receive Principal,
Premium and Interest. Notwithstanding any other provisions in this Indenture,
the Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repayment, on the Redemption Date or Repayment Date, as the case may be) and to
institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies. If the Trustee or any
Securityholder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, then and in every such case the Company, the Trustee and the
Securityholders shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Securityholders shall
continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Trustee or to the Securityholders 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 511. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security 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 or by law to the Trustee or to the
Securityholders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Securityholders, as the case may be.
Section 512. Control by Securityholders. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising
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any trust or power conferred on the Trustee with respect to the Securities of
such series, provided that
(1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or would conflict with this
Indenture or if the Trustee in good faith shall, by a Responsible Officer,
determine that the proceedings so directed would involve it in personal
liability or be unjustly prejudicial to the Holders not taking part in such
direction, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default not theretofore cured
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or in the payment of any sinking
or purchase fund or analogous obligation with respect to the Securities of
such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant 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 the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder, or
group of Securityholders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series to which the suit relates, or
to any suit instituted by any Securityholder for the enforcement of the payment
of the principal of (or premium, if any) or interest on any Security on or after
the respective Stated Maturities expressed in such Security (or, in the case of
redemption or repayment, on or after the Redemption Date or Repayment Date).
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Section 515. Waiver of Stay or Extension Laws. The Company 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
the Company (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 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to
any series of Securities,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture with respect to the
Securities of such series, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may, with
respect to Securities of such series, 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 with respect to any series of Securities
has occurred and is continuing, the Trustee shall exercise with respect to the
Securities of such series 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 person would exercise or use under the circumstances in the conduct of
such person's 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;
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(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 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 602. Notice of Defaults. Within 90 days after the occurrence of any
default hereunder with respect to Securities of any series, the Trustee shall
transmit by mail to all Securityholders of such series, as their names and
addresses appear in the Security Register, notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security of such series or
in the payment of any sinking or purchase fund installment or analogous
obligation 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 interests of the Securityholders of such series; and provided,
further, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series no such notice to
Securityholders of such series shall be given until at least 90 days after the
occurrence thereof. For the purpose of this Section, the term "default," with
respect to Securities of any series, means any event which is, or after notice
or lapse of time or both would become, an Event of Default with respect to
Securities of such series.
Section 603. Certain Rights of Trustee. Except as otherwise provided in
Section 601:
(a) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
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(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) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(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 Securityholders pursuant to this Indenture, unless such Securityholders
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 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; and
(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.
Section 604. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the certificates of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities. The Trustee, any Paying Agent, the
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.
Section 606. 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 with the Company.
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Section 607. Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time such compensation for all
services rendered by it hereunder as the parties shall agree from time to
time (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 the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this trust, 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.
Section 608. Disqualification; Conflicting Interests. The Trustee for the
Securities of any series issued hereunder shall be subject to the provisions of
Section 310(b) of the Trust Indenture Act during the period of time provided for
therein. In determining whether the Trustee has a conflicting interest as
defined in Section 310(b) of the Trust Indenture Act with respect to the
Securities of any series, there shall be excluded for purposes of the
conflicting interest provisions of such Section 310(b) the Securities of every
other series issued under this Indenture and every series of securities issued
under that certain Trust Indenture, Mortgage, Assignment of Lease and Security
Agreement (1996-A), dated November 15, 1996, among Wilmington Trust Company, as
Corporate Grantor Trustee, Thomas P. Laskaris, as individual Grantor Trustee,
the Trustee, as Corporate Indenture Trustee, and Frederick W. Clark, as
Individual Indenture Trustee as such may be amended from time to time. Nothing
herein shall prevent the Trustee from filing with the Commission the application
referred to in the second to last paragraph of Section 310(b) of the Trust
Indenture Act.
Section 609. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee hereunder with respect to each series of Securities, which
shall be a corporation organized and doing business under the laws of the United
States of America or of any State, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000, and 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 the aforesaid supervising or examining
authority, then for the purposes of
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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. If at any time the Trustee with respect to any
series of Securities shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign with respect to any series of Securities at any
time by giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee 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.
(c) The Trustee may be removed with respect to any series of Securities at
any time by Act of the Holders of a majority in principal amount of the
Outstanding Securities of that series, delivered to the Trustee and to the
Company. If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 30 days after the giving of such notice of
removal, the removed Trustee may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the Trust
Indenture Act pursuant to Section 608(a) with respect to any series of
Securities after written request therefor by the Company or by any
Securityholder who has been a bona fide Holder of a Security of that series
for at least 6 months, or
(2) the Trustee shall cease to be eligible under Section 609 with
respect to any series of Securities and shall fail to resign after written
request therefor by the Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting with respect to any
series of Securities, or
(4) the Trustee 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 the series, or in the case of Clause (4), with
respect to all series, or (ii) subject to
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Section 514, any Securityholder who has been a bona fide Holder of a Security of
such series for at least 6 months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee with respect to the
series, or, in the case of Clause (4), with respect to all series.
(e) If the Trustee shall resign, be removed or become incapable of acting
with respect to any series of Securities, or if a vacancy shall occur in the
office of the Trustee with respect to any series of Securities for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee
for that series of Securities. If, within one year after such resignation,
removal or incapacity, or the occurrence of such vacancy, a successor Trustee
with respect to such series of Securities 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, become
the successor Trustee with respect to such series and supersede the successor
Trustee appointed by the Company with respect to such series. If no successor
Trustee with respect to such series shall have been so appointed by the Company
or the Securityholders of such series and accepted appointment in the manner
hereinafter provided, any Securityholder who has been a bona fide Holder of a
Security of that series for at least 6 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 such series.
(f) The Company shall give notice of each resignation and each removal of
the Trustee with respect to any series and each appointment of a successor
Trustee with respect to any series by mailing written notice of such event by
first-class mail, postage prepaid, to the Holders of Securities of that series
as their names and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee and the address of its principal
Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the predecessor Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the predecessor
Trustee shall become effective with respect to any series as to which it is
resigning or being removed as Trustee, and such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the predecessor Trustee with respect
to any such series; but, on request of the Company or the successor
Trustee, such predecessor Trustee shall, upon payment of its reasonable
charges, if any, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the predecessor
Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such predecessor Trustee hereunder
with respect to all or any such series, subject nevertheless to its lien,
if any, provided for in Section 607. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully
and certainly vesting in and confirming to such successor Trustee all such
rights, powers and trusts.
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 predecessor
Trustee and each successor
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Trustee with respect to the Securities of any applicable series shall execute
and deliver an indenture supplemental hereto which shall contain such provisions
as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the predecessor Trustee with respect to the
Securities of any series as to which the predecessor Trustee is not being
succeeded shall continue to be vested in the predecessor Trustee, and 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.
No successor Trustee with respect to any series of Securities shall accept
its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible with respect to that series under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of 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,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the Trustee shall be or
shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within 3 months prior to a default, as defined in Subsection (c) of this
Section, or subsequent to such a default, then, unless and until such default
shall be cured, the Trustee shall set apart and hold in a special account for
the benefit of the Trustee individually, the Holders of the Securities and the
holders of other indenture securities (as defined in Subsection (c) of this
Section):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such 3-month period and valid as against
the Company and its other creditors, except any such reduction resulting
from the receipt or disposition of any property described in paragraph (2)
of this Subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been filed by
or against the Company upon the date of such default; and
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(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such 3-month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee
(A) to retain for its own account (i) payments made on account of any
such claim by any Person (other than the Company) who is liable thereon,
and (ii) the proceeds of the bona fide sale of any such claim by the
Trustee to a third person, and (iii) distributions made in cash, securities
or other property in respect of claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to
the Federal Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held by it as
security for any such claim, if such property was so held prior to the
beginning of such 3-month period;
(C) to realize, for its own account, but only to the extent of the
claim hereinafter mentioned, upon any property held by it as security for
any such claim, if such claim was created after the beginning of such
3-month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default as defined in
Subsection (c) of this Section would occur within 3 months; or
(D) to receive payment on any claim referred to in paragraph (B) or
(C), against the release of any property held as security for such claim as
provided in paragraph (B) or (C), as the case may be, to the extent of the
fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such 3-month period for property held as security at the time
of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as
such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between the
Trustee, the Securityholders and the holders of other indenture securities in
such manner that the Trustee, the Securityholders
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and the holders of other indenture securities realize, as a result of payments
from such special account and payments of dividends on claims filed against the
Company in bankruptcy or receivership or in proceedings for reorganization
pursuant to the Federal Bankruptcy Act or applicable State law, the same
percentage of their respective claims, figured before crediting to the claim of
the Trustee anything on account of the receipt by it from the Company of the
funds and property in such special account and before crediting to the
respective claims of the Trustee and the Securityholders and the holders of
other indenture securities dividends on claims filed against the Company in
bankruptcy or receivership or in proceedings for reorganization pursuant to the
Federal Bankruptcy Act or applicable State law, but after crediting thereon
receipts on account of the indebtedness represented by their respective claims
from all sources other than from such dividends and from the funds and property
so held in such special account. As used in this paragraph, with respect to any
claim, the term "dividends" shall include any distribution with respect to such
claim, in bankruptcy or receivership or proceedings for reorganization pursuant
to the Federal Bankruptcy Act or applicable State law, whether such distribution
is made in cash, securities, or other property, but shall not include any such
distribution with respect to the secured portion, if any, of such claim. The
court in which such bankruptcy, receivership or proceedings for reorganization
is pending shall have jurisdiction (i) to apportion between the Trustee and the
Securityholders and the holders of other indenture securities in accordance with
the provisions of this paragraph, the funds and property held in such special
account and proceeds thereof, or (ii) in lieu of such apportionment, in whole or
in part, to give to the provisions of this paragraph due consideration in
determining the fairness of the distributions to be made to the Trustee and the
Securityholders and the holders of other indenture securities with respect to
their respective claims, in which event it shall not be necessary to liquidate
or to appraise the value of any securities or other property held in such
special account or as security for any such claim, or to make a specific
allocation of such distributions as between the secured and unsecured portions
of such claims, or otherwise to apply the provisions of this paragraph as a
mathematical formula.
Any Trustee which has resigned or been removed after the beginning of such
3-month period shall be subject to the provisions of this Subsection as though
such resignation or removal had not occurred. If any Trustee has resigned or
been removed prior to the beginning of such 3-month period, it shall be subject
to the provisions of this Subsection if and only if the following conditions
exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such 3-month period; and
(ii) such receipt of property or reduction of claim occurred within 3
months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of this
Section a creditor relationship arising from
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(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Securityholders at the time and in the
manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in Subsection (c) of this
Section;
(5) the ownership of stock or of other securities of a corporation
organized under the provisions of Section 25(a) of the Federal Reserve Act,
as amended, which is directly or indirectly a creditor of the Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self liquidating paper as defined in Subsection (c) of
this Section.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make payment in full of
the principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due and
payable.
(2) The term "other indenture securities" means securities upon which
the Company is an obligor outstanding under any other indenture (i) under
which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and (iii) under
which a default exists at the time of the apportionment of the funds and
property held in such special account.
(3) The term "cash transaction" means any transaction in which full
payment for goods or securities sold is made within 7 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.
(4) The term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred
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by the Company 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 arising from the making, drawing, negotiating or incurring of the
draft, bill of exchange, acceptance or obligation.
(5) The term "Company" means any obligor upon the Securities.
Section 614. Appointment of Authenticating Agent. At any time when any of
the Securities remain Outstanding the Trustee, with the approval of the Company,
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 306, 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 an Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and,
if other than the Company itself, 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 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, if other than the Company, to the Company. The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating
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Agent and, if other than the Company, to the Company. 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, with the approval of the Company, may
appoint a successor Authenticating Agent which shall be acceptable to the
Company 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.
The Trustee agrees to pay to each Authenticating Agent (other than an
Authenticating Agent appointed at the request of the Company from time to time)
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an 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.
The Bank of New York,
as Trustee
By:_____________________________
As Authenticating Agent
Date: _____________________ By:_____________________________
Authorized Signatory
ARTICLE SEVEN
SECURITYHOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company To Furnish Trustee Names and Addresses of
Securityholders. 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, in each year in such form as the Trustee may reasonably require, a
list of the names and addresses of the Holders of Securities of such series
as of such date, and
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(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,
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to
Securityholders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities contained in
the most recent list furnished to the Trustee as provided in Section 701
and the names and addresses of Holders of Securities received by the
Trustee in its capacity as Security Registrar. The Trustee may destroy any
list furnished to it as provided in Section 701 upon receipt of a new list
so furnished.
(b) If 3 or more Holders of Securities of any series (hereinafter
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 of such series for a period of at least 6 months preceding the
date of such application, and such application states that the applicants
desire to communicate with other Holders of Securities of such series or
with the Holders of all Securities with respect to their rights under this
Indenture or under such 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 5 Business Days after the receipt of such
application, at its election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of Holders of
Securities of such series or all Securities, as the case may be, whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 702(a), and as to the approximate cost
of mailing to such Securityholders 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 of a Security of such series or to all Securityholders, as
the case may be, whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 702(a), a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless, within 5 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 interests of the Holders of
Securities of such series or all Securityholders, as the case may be, 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
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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 Securityholders of such series or all
Securityholders, as the case may be, with reasonable promptness after the entry
of such order and the renewal of such tender; otherwise the Trustee shall be
relieved of any obligation or duty to such applicants respecting their
application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders of Securities in
accordance with Section 702(b), regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under Section
702(b).
Section 703. Reports by Trustee.
(a) The term "reporting date" as used in this Section means May 15 of
each year. Within 60 days after the reporting date in each year, beginning
in 199__, the Trustee shall transmit by mail to all Securityholders, as
their names and addresses appear in the Security Register, a brief report
dated as of such reporting date with respect to any of the following events
which may have occurred during the 12 months preceding the date of such
report (but if no such event has occurred within such period no report need
be transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the Trust
Indenture Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof)
made by the Trustee (as such) which remain unpaid on the date of such
report, and for the reimbursement of which it claims or may claim a
lien or charge, prior to that of Securities of any series, on any
property or funds held or collected by it as Trustee, except that the
Trustee shall not be required (but may elect) to report such advances
if such advances so remaining unpaid aggregate not more than 1/2 of 1%
of the principal amount of the Securities of such series outstanding
on the date of such report;
(4) any change to the amount, interest rate and maturity date of
all other indebtedness owing by the Company (or by any other obligor
on the Securities) to the Trustee in its individual capacity, on the
date of such report, with a brief description of any property held as
collateral security therefor, except
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an indebtedness based upon a creditor relationship arising in a manner
described in Section 613(b)(2), (3), (4) or (6);
(5) any change to the property and funds, if any, physically in
the possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of property subject
to the lien of this instrument (and the consideration therefor, if
any) which the Trustee has not previously reported;
(7) any additional issue of Securities which the Trustee has not
previously reported; and
(8) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of
a default, notice of which has been or is to be withheld by the
Trustee in accordance with Section 602.
(b) The Trustee shall transmit to all Securityholders, a brief report
with respect to the release, or release and substitution, of property
subject to the lien of this instrument, if any (and the consideration
therefor, if any) unless the fair value of such property is less than 10%,
of the principal amount of Securities outstanding at the time of such
release, or such release and substitution, such report to be transmitted
within 90 dys after such time; and the character and amount of any advances
(and if the Trustee elects so to state, the circumstances surrounding the
making thereof) made by the Trustee (as such) since the date of the last
report transmitted pursuant to Subsection (a) of this Section (or if no
such report has yet been so transmitted, since the date of execution of
this instrument) for the reimbursement of which it claims or may claim a
lien or charge, prior to that of the Securities of any series, on property
or funds held or collected by it as Trustee, and which it has not
previously reported pursuant to this Subsection, except that the Trustee
shall not be required (but may elect) to report such advances if such
advances remaining unpaid at any time aggregate 10% or less of the
principal amount of the Securities Outstanding of such series at such time,
such report to be transmitted within 90 days after such time.
(c) Each such report pursuant to paragraphs (a) and (b) above shall be
transmitted by mail:
(1) To all registered Securityholders as their names and
addresses appear in the Security Register; and
(2) To such Securityholders as have, within the two years
preceding such report, filed their names and addresses with the
Trustee for such purpose.
(d) A copy of each such report shall, at the time of such transmission
to Securityholders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, and also with the Commission.
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Section 704. Reports by Company. The Company will
(1) 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 Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports
pursuant to either of said Sections, then it will 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 Securities Exchange Act
of 1934 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;
(2) 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
(3) transmit by mail to all Securityholders, 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
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Company May Consolidate, etc., only on Certain Terms. The
Company shall not consolidate with or merge into any other corporation or convey
or transfer its properties and assets substantially as an entirety to any
Person, unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company substantially as an
entirety shall be a corporation organized and existing under the laws
of the United States of America or any State or the District of
Columbia, 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
premium, if any) and interest on all the Securities and the
performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
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(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 happened and be
continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied
with.
Section 802. Successor Corporation Substituted. Upon any consolidation or
merger, or any conveyance or transfer of the properties and assets of the
Company substantially as an entirety in accordance with Section 801, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance or transfer 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 corporation had been
named as the Company herein. In the event of any such conveyance or transfer,
the Company as the predecessor corporation may be dissolved, wound up or
liquidated at any time thereafter.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Securityholders.
Without the consent of the Holders of any Securities, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company, and the assumption by any such successor of the covenants of
the Company herein and in the Securities contained; or
(2) to add to the covenants of the Company, or to surrender any
right or power herein conferred upon the Company, for the benefit of
the Holders of the Securities of any or all series (and if such
covenants or the surrender of such right or power are to be for the
benefit of less than all series of Securities, stating that such
covenants are expressly being included or such surrenders are
expressly being made solely for the benefit of one or more specified
series); or
(3) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions
arising under this Indenture; or
(4) to add to this Indenture such provisions as may be expressly
permitted by the TIA, excluding, however, the provisions referred to
in Section 316(a)(2) of the TIA as
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in effect at the date as of which this instrument was executed or any
corresponding provision in any similar federal statute hereafter
enacted; or
(5) to establish any form of Security, as provided in Article
Two, and to provide for the issuance of any series of Securities as
provided in Article Three and to set forth the terms thereof, and/or
to add to the rights of the Holders of the Securities of any series;
or
(6) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to
one or more series of Securities 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 Section 611; or
(7) to add any additional Events of Default in respect of the
Securities of any or all series (and if such additional Events of
Default are to be in respect of less than all series of Securities,
stating that such Events of Default are expressly being included solely
for the benefit of one or more specified series); or
(8) to provide for the issuance of Securities in coupon as well
as fully registered form.
No supplemental indenture for the purposes identified in Clauses (2), (3),
(5) or (7) above may be entered into if to do so would adversely affect the
interest of the Holders of Securities of any series.
Section 902. Supplemental Indentures with Consent of Securityholders. With
the consent of the Holders of not less than a majority in principal amount of
the Outstanding Securities of each series affected by such supplemental
indenture or indentures, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of the Securities of each 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 Maturity of the principal of, or the Stated
Maturity of any premium on, or any installment of interest on, any
Security, or reduce the principal amount thereof or the interest or
any premium thereon, or change the method of computing the amount of
principal thereof or interest thereon on any date or change any Place
of Payment where, or the coin or currency in which, any Security or
any premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Maturity or the Stated Maturity, as the case may be, thereof (or, in
the case of redemption or repayment, on or after the Redemption Date
or the Repayment Date, as the case may be); or
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(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences,
provided for in this Indenture; or
(3) modify any of the provisions of this Section or Section 513,
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.
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 Securityholders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not (except to the extent required in
the case of a supplemental indenture entered into under Section 901(4) or
901(6)) 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 904. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby to the
extent provided therein.
Section 905. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the TIA as then in effect.
Section 906. Reference in Securities to Supplemental Indentures. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Board
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of Directors, 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.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest. With respect to
each series of Securities, the Company will duly and punctually pay the
principal of (and premium, if any) and interest on such Securities in New York,
New York in accordance with their terms and this Indenture, and will duly comply
with all the other terms, agreements and conditions contained in, or made in the
Indenture for the benefit of, the Securities of such series.
Section 1002. Maintenance of Office or Agency. The Company will maintain an
office or agency in New York, New York an each Place of Payment where Securities
may be presented or surrendered for payment, where Securities may be surrendered
for transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities and this Indenture may be served. The Company will
give prompt written notice to the Trustee of the location, and of any change in
the location, of such office or agency. If at any time the Company shall fail to
maintain such 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 principal Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Section 1003. Money for Security Payments to be Held in Trust. If the
Company shall at any time act as its own Paying Agent for any series of
Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest on, any of the Securities of such series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or 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
to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, on or prior to each due date of the principal of (and
premium, if any) or interest on, any Securities of such series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal (and premium, if any) 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.
(1) The Company will cause each Paying Agent other than the
Trustee for any series of Securities 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 hold all sums held by it for the payment of principal of
(and premium, if any) or interest on Securities of such 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;
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(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
such payment of principal (and premium, if any) or interest on the
Securities of such 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 may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture with respect to any series of Securities 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 in
respect of each and every series of Securities as to which it seeks to discharge
this Indenture or, if for any other purpose, all sums so held in trust by the
Company in respect of all Securities, 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.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease. The Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company mail to
the Holders of the Securities as to which the money to be repaid was held in
trust, as their names and addresses appear in the Security Register, a notice
that such moneys remain unclaimed and that, after a date specified in the
notice, which shall not be less than 30 days from the date on which the notice
was first mailed to the Holders of the Securities as to which the money to be
repaid was held in trust, any unclaimed balance of such moneys then remaining
will be paid to the Company free of the trust formerly impressed upon it.
The Company initially authorizes the Trustee to act as Paying Agent for the
Securities on its behalf. The Company may at any time and from time to time
authorize one or more Persons to act as Paying Agent in addition to or in place
of the Trustee with respect to any series of Securities issued under this
Indenture.
Section 1004. Statement as to Compliance. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year, a written statement
signed by the principal executive officer, principal financial officer or
principal accounting officer of the Company, stating that
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(1) a review of the activities of the Company during such year
and of the Company's performance under this Indenture and under the
terms of the Securities has been made under his supervision; and
(2) to the best of his knowledge, based on such review, the
Company has complied with all conditions and covenants under this
Indenture through such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known
to him and the nature and status thereof.
For purposes of this Section 1004, compliance shall be determined without
regard to any grace period or requirement of notice provided pursuant to the
terms of this Indenture.
Section 1005. Corporate Existence. Subject to Article Eight the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article. The Company may reserve the right
to redeem and pay before Stated Maturity all or any part of the Securities of
any series, either by optional redemption, sinking or purchase fund or analogous
obligation or otherwise, by provision therefor in the form of Security for such
series established and approved pursuant to Section 202 and on such terms as are
specified in such form or in the Board Resolution or indenture supplemental
hereto with respect to Securities of such series as provided in Section 301.
Redemption of Securities of any series shall be made in accordance with the
terms of such Securities and, to the extent that this Article does not conflict
with such terms, the succeeding Sections of this Article.
Section 1102. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities redeemable at the election of the Company shall
be evidenced by, or made pursuant to authority granted by, a Board Resolution.
In case of any redemption at the election of the Company of any Securities of
any series, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
of Securities of such series to be redeemed.
In the case of any redemption of Securities (i) prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, or (ii) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
Section 1103. Selection by Trustee of Securities to Be Redeemed. If less
than all the Securities of like tenor and terms of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such
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method as the Trustee shall deem fair and appropriate and which may include
provision for the selection for redemption of portions of the principal of
Securities of such series of a denomination larger than the minimum authorized
denomination for Securities of that series. Unless otherwise provided in the
terms of a particular series of Securities, the portions of the principal of
Securities so selected for partial redemption shall be equal to the minimum
authorized denomination of the Securities of such series, or an integral
multiple thereof, and the principal amount which remains outstanding shall not
be less than the minimum authorized denomination for Securities of such series.
If less than all the Securities of unlike tenor and terms of a series are to be
redeemed, the particular Securities to be redeemed shall be selected by the
Company.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed.
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 Security redeemed or to be redeemed only in part, to the portion of
the principal of such Security which has been or is to be redeemed.
Section 1104. Notice of Redemption. Notice of redemption shall be given by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date, to each holder of Securities to be redeemed, at
his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all Outstanding Securities of any series are to
be redeemed, the identification, including CUSIP numbers, (and, in the
case of partial redemption, the respective principal amounts) of the
Securities to be redeemed, from the Holder to whom the notice is
given;
(4) that on the Redemption Date the Redemption Price will become
due and payable upon each such Security, and that interest, if any,
thereon shall cease to accrue from and after said date;
(5) the place where such Securities are to be surrendered for
payment of the Redemption Price, which shall be the office or agency
of the Company in the Place of Payment; and
(6) that the redemption is on account of a sinking or purchase
fund, or other analogous obligation, if that be the case.
56
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Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. Such notice shall be
deemed to have been given to each Holder if sent in accordance with Section 105
hereof.
Section 1105. Deposit of Redemption Price. On or prior to 10:00 a.m. on 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 1003) an amount of money sufficient to pay the
Redemption Price of all the Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date. Notice of Redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Securities shall cease to bear interest.
Upon surrender of such Securities for redemption in accordance with the notice,
such Securities shall be paid by the Company at the Redemption Price.
Installments of interest the Stated Maturity of which is on or prior to the
Redemption Date shall be payable to the Holders of such Securities registered as
such on the relevant Regular Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by the Security, or as otherwise provided in
such Security.
Section 1107. Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at the office or agency of the
Company in the Place of Payment with respect to that series (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 Stated Maturity and of like tenor and terms, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
Section 1108. Provisions with Respect to any Sinking Funds. Unless the form
or terms of any series of Securities shall provide otherwise, in lieu of making
all or any part of any mandatory sinking fund payment with respect to such
series of Securities in cash, the Company may at its option (1) deliver to the
Trustee for cancellation any Securities of such series theretofore acquired by
the Company, or (2) receive credit for any Securities of such series (not
previously so credited) acquired by the Company and theretofore delivered to the
Trustee for cancelation or redeemed by the Company other than through the
mandatory sinking fund, and if it does so then (i) Securities so delivered or
credited shall be credited at the applicable sinking fund Redemption Price with
respect to Securities of such series, and (ii) on or before the 60th
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day next preceding each sinking fund Redemption Date with respect to such series
of Securities, the Company will deliver to the Trustee (A) an Officers'
Certificate specifying the portions of such sinking fund payment to be satisfied
by payment of cash and by delivery or credit of Securities of such series
acquired by the Company or so redeemed, and (B) such Securities so acquired, to
the extent not previously surrendered. Such Officers' Certificate shall also
state the basis for such credit and that the Securities for which the Company
elects to receive credit have not been previously so credited and were not
redeemed by the Company through operation of the mandatory sinking fund, if any,
provided with respect to such Securities and shall also state that no Event of
Default with respect to Securities of such series has occurred and is
continuing. All Securities so delivered to the Trustee shall be canceled by the
Trustee and no Securities shall be authenticated in lieu thereof.
If the sinking fund payment or payments (mandatory or optional) with
respect to any series of Securities made in cash plus any unused balance of any
preceding sinking fund payments with respect to Securities of such series made
in cash shall exceed $50,000 (or a lesser sum if the Company shall so request),
unless otherwise provided by the terms of such series of Securities, that cash
shall be applied by the Trustee on the sinking fund Redemption Date with respect
to Securities of such series next following the date of such payment to the
redemption of Securities of such series at the applicable sinking fund
Redemption Price with respect to Securities of such series, together with
accrued interest, if any, to the date fixed for redemption, with the effect
provided in Section 1106. The Trustee shall select, in the manner provided in
Section 1103, for redemption on such sinking fund Redemption Date a sufficient
principal amount of Securities of such series to utilize that cash and shall
thereupon cause notice of redemption of the Securities of such series for the
sinking fund to be given in the manner provided in Section 1104 (and with the
effect provided in Section 1106) for the redemption of Securities in part at the
option of the Company. Any sinking fund moneys not so applied or allocated by
the Trustee to the redemption of Securities of such series shall be added to the
next cash sinking fund payment with respect to Securities of such series
received by the Trustee and, together with such payment, shall be applied in
accordance with the provisions of this Section 1108. Any and all sinking fund
moneys with respect to Securities of any series held by the Trustee at the
Maturity of Securities of such series, and not held for the payment or
redemption of particular Securities of such series, shall be applied by the
Trustee, together with other moneys, if necessary, to be deposited sufficient
for the purpose, to the payment of the principal of the Securities of such
series at Maturity.
On or before each sinking fund Redemption Date provided with respect to
Securities of any series, the Company shall pay to the Trustee in cash a sum
equal to all accrued interest, if any, to the date fixed for redemption on
Securities to be redeemed on such sinking fund Redemption Date pursuant to this
Section 1108.
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.
EEX CORPORATION
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By:_____________________________
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By:_____________________________
Name:
Title:
59
Exhibit 4.3
EEX CORPORATION
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
Trustee
FORM OF
SUBORDINATED INDENTURE
Dated as of ________, 1998
Providing for Issuance of Securities in Series
<PAGE>
TABLE OF CONTENTS
Page
Recitals of the Company....................................................... 1
Agreements of the Parties .................................................... 1
ARTICLE ONE: DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions ..................................................... 1
Section 102 Compliance Certificates and Opinions............................. 7
Section 103 Form of Documents Delivered to Trustee .......................... 7
Section 104 Acts of Securityholders ......................................... 8
Section 105 Notices, etc., to Trustee and Company ........................... 9
Section 106 Notices to Securityholders; Waiver ............................. 9
Section 107 Conflict with Trust Indenture Act .............................. 10
Section 108 Effect of Headings and Table of Contents ....................... 10
Section 109 Successors and Assigns ......................................... 10
Section 110 Separability Clause ............................................ 10
Section 111 Benefits of Indenture .......................................... 10
Section 112 Governing Law .................................................. 10
Section 113 Counterparts ................................................... 10
Section 114 Judgment Currency .............................................. 10
ARTICLE TWO: SECURITY FORMS.
Section 201 Forms Generally ................................................ 11
Section 202 Forms of Securities ........................................... 11
Section 203 Form of Trustee's Certificate of Authentication ................ 12
Section 204 Securities Issuable in the Form of a Global Security ........... 12
ARTICLE THREE: THE SECURITIES.
Section 301 General Title; General Limitations; Issuable in Series; Terms of
Particular Series ............................................. 14
Section 302 Denominations .................................................. 16
Section 303 Execution, Authentication and Delivery and Dating .............. 16
Section 304 Temporary Securities ........................................... 18
Section 305 Registration, Transfer and Exchange ............................ 19
Section 306 Mutilated, Destroyed, Lost and Stolen Securities ............... 20
Section 307 Payment of Interest; Interest Rights Preserved ................. 20
Section 308 Persons Deemed Owners .......................................... 21
Section 309 Cancellation ................................................... 22
Section 310 Computation of Interest ........................................ 22
Section 311 Medium-term Securities ......................................... 22
Section 312 CUSIP Numbers .................................................. 22
Contents, p.1
<PAGE>
ARTICLE FOUR: SATISFACTION AND DISCHARGE OF INDENTURE; DEFEASANCE;
UNCLAIMED MONEYS
Section 401 Applicability of Article ....................................... 23
Section 402 Satisfaction and Discharge of Indenture; Defeasance ............ 23
Section 403 Conditions of Defeasance ....................................... 24
Section 404 Application of Trust Money ..................................... 25
Section 405 Repayment to Company ........................................... 25
Section 406 Indemnity for U.S. Government Obligations ...................... 25
Section 407 Reinstatement .................................................. 26
ARTICLE FIVE: REMEDIES
Section 501 Events of Default .............................................. 26
Section 502 Acceleration of Maturity; Rescission and Annulment ............. 27
Section 503 Trustee May File Proofs of Claim ............................... 28
Section 504 Trustee May Enforce Claims Without Possession of Securities .... 29
Section 505 Application of Money Collected ................................. 30
Section 506 Limitation on Suits ............................................ 30
Section 507 Unconditional Right of Securityholders to Receive Principal,
Premium and Interest .......................................... 30
Section 508 Restoration of Rights and Remedies ............................ 31
Section 509 Rights and Remedies Cumulative ................................ 31
Section 510 Delay or Omission Not Waiver .................................. 31
Section 511 Control by Securityholders .................................... 32
Section 512 Waiver of Past Defaults ....................................... 32
Section 513 Undertaking for Costs ......................................... 32
Section 514 Waiver of Stay or Extension Laws .............................. 32
ARTICLE SIX: THE TRUSTEE
Section 601 Certain Duties and Responsibilities ............................ 33
Section 602 Notice of Defaults ............................................. 34
Section 603 Certain Rights of Trustee ...................................... 34
Section 604 Not Responsible for Recitals or Issuance of Securities ......... 35
Section 605 May Hold Securities ............................................ 35
Section 606 Money Held in Trust ............................................ 35
Section 607 Compensation and Reimbursement ................................. 36
Section 608 Disqualification; Conflicting Interests ........................ 36
Section 609 Corporate Trustee Required; Eligibility ........................ 36
Section 610 Resignation and Removal; Appointment of Successor .............. 37
Section 611 Acceptance of Appointment by Successor ......................... 38
Section 612 Merger, Conversion, Consolidation or Succession to Business .... 39
Section 613 Preferential Collection of Claims Against Company .............. 39
Section 614 Appointment of Authenticating Agent ............................ 42
Contents, p.2
<PAGE>
ARTICLE SEVEN: SECURITYHOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701 Company To Furnish Trustee Names and Addresses of
Securityholders ............................................... 44
Section 702 Preservation of Information; Communications to Securityholders . 44
Section 703 Reports by Trustee ............................................. 45
Section 704 Reports by Company ............................................. 47
ARTICLE EIGHT: CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801 Company May Consolidate, etc., only on Certain Terms ........... 48
Section 802 Successor Corporation Substituted .............................. 48
ARTICLE NINE: SUPPLEMENTAL INDENTURES
Section 901 Supplemental Indentures Without Consent of Securityholders ..... 48
Section 902 Supplemental Indentures with Consent of Securityholders ........ 49
Section 903 Execution of Supplemental Indentures ........................... 50
Section 904 Effect of Supplemental Indentures .............................. 50
Section 905 Conformity with Trust Indenture Act ............................ 51
Section 906 Reference in Securities to Supplemental Indentures ............. 51
ARTICLE TEN: COVENANTS
Section 1001 Payment of Principal, Premium and Interest .................... 51
Section 1002 Maintenance of Office or Agency ............................... 51
Section 1003 Money for Security Payments to be Held in Trust ............... 51
Section 1004 Statement as to Compliance .................................... 53
Section 1005 Corporate Existence ........................................... 53
ARTICLE ELEVEN: REDEMPTION OF SECURITIES
Section 1101 Applicability of Article ...................................... 53
Section 1102 Election to Redeem; Notice to Trustee ......................... 53
Section 1103 Selection by Trustee of Securities to Be Redeemed ............. 54
Section 1104 Notice of Redemption .......................................... 54
Section 1105 Deposit of Redemption Price ................................... 55
Section 1106 Securities Payable on Redemption Date ......................... 55
Section 1107 Securities Redeemed in Part ................................... 55
Section 1108 Provisions with Respect to any Sinking Funds .................. 55
ARTICLE TWELVE: SUBORDINATION
Section 1201 Agreement of Securityholders that Securities Subordinated to
Extent Provided .............................................. 56
Section 1202 Company Not to Make Payments With Respect to Securities in
Certain Circumstances ........................................ 57
Section 1203 Securities Subordinated to Prior Payments of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of
the Company .................................................. 58
Section 1204 Securityholders to be Subrogated to Right of Holders of Senior
Indebtedness ................................................. 58
Contents, p.3
<PAGE>
Section 1205 Obligation of the Company Unconditional ....................... 59
Section 1206 Trustee Entitled to Assume Payments Not Prohibited in Absence
of Notice .................................................... 59
Section 1207 Application by Trustee of Monies Deposited With It ............ 59
Section 1208 Subordination Rights Not Impaired by Acts or Omissions of
Company or Holders of Senior Indebtedness .................... 60
Section 1209 Securityholders Authorize Trustee to Effectuate Subordination
of Securities ................................................ 60
Section 1210 Right of Trustee to Hold Senior Indebtedness .................. 60
Section 1211 Article Twelve Not to Prevent Events of Default ............... 60
Contents, p.4
<PAGE>
THIS SUBORDINATED INDENTURE (the "Indenture") between EEX CORPORATION, a
Texas corporation (hereinafter called the "Company") having its principal office
at 2500 CityWest Blvd., Suite 1400, Houston, Texas 77042, and Chase Bank of
Texas, National Association, a national banking corporation, as trustee
(hereinafter called the "Trustee"), is made and entered into as of this ___ day
of ________, 1998.
Recitals of the Company
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its Securities, notes, bonds or other
evidences of indebtedness, to be issued in one or more fully registered series.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
Agreements of the Parties
To set forth or to provide for the establishment of the terms and
conditions upon which the Securities are and are to be authenticated, issued and
delivered, and in consideration of the premises and the purchase of Securities
by the Holders thereof, it is mutually covenanted and agreed as follows, for the
equal and proportionate benefit of all Holders of the Securities or of a series
thereof, as the case may be:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions. For all purposes of this Indenture and of any
indenture supplemental hereto, except as otherwise expressly provided or unless
the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act or by Commission rule under the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them
therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted in the United States of America at the date of such
computation;
(4) all references in this instrument to designated "Articles,"
"Sections" and other subdivisions are to the designated Articles, Sections
and other subdivisions of this
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instrument as originally executed. 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; and
(5) "including" and words of similar import shall be deemed to be
followed by "without limitation." Certain terms, used principally in
Article Six, are defined in that Article.
"Act," when used with respect to any Security-holder, has the meaning
specified in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
authenticate Securities under Section 614.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each day which is neither a Saturday, Sunday or other
day on which banking institutions in the pertinent Place or Places of Payment
are authorized or required by law or executive order to be closed.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Securities Exchange Act of 1934, or, if at
any time after the execution of this instrument such Commission is not existing
and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first paragraph of
this instrument until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Request," "Company Order" and "Company Consent" mean,
respectively, a written request, order or consent signed in the name of the
Company by its Chairman of the Board, President or a Vice President, and by its
Treasurer, an Assistant Treasurer, Controller, an Assistant Controller,
Secretary or an Assistant Secretary, and delivered to the Trustee.
"Corporate Trust Office" means the principal office of the Trustee in
Dallas, Texas at which at any particular time its corporate trust business shall
be principally administered, which
2
<PAGE>
office at the date hereof is located at ___________, Dallas, Texas _____, except
that with respect to the presentation of Securities for payment or for
registration of transfer and exchange, such term shall mean the office or the
agency of the Trustee in said city at which at any particular time its corporate
agency business shall be conducted, which office at the date hereof is located
at ____________, New York, New York _____.
"Debt" means indebtedness for money borrowed.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, unless otherwise specified by the Company pursuant to
either Section 204 or 301, with respect to Securities of any series issuable or
issued as a Global Security, The Depository Trust Company, New York, New York,
or any successor thereto registered as a clearing agency under the Securities
Exchange Act of 1934, as amended, or other applicable statute or regulation.
"Event of Default" has the meaning specified in Article Five.
"Global Security" means with respect to any series of Securities issued
hereunder, a Security which is executed by the Company and authenticated and
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instruction, all in accordance with this Indenture and an indenture supplemental
hereto, if any, or Board Resolution and pursuant to a Company Request, which
shall be registered in the name of the Depositary or its nominee and which shall
represent, and shall be denominated in an amount equal to the aggregate
principal amount of, all of the Outstanding Securities of such series or any
portion thereof, in either case having the same terms, including, without
limitation, the same original issue date, date or dates on which principal is
due, and interest rate or method of determining interest.
"Holder," when used with respect to any Security, means a Securityholder.
"Indenture" or "this Indenture" means this instrument as originally
executed or as it may from time to time be supplemented or amended by one or
more indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of particular series of Securities
established as contemplated by Section 301.
"Interest," when used with respect to an Original Issue Discount Security
which by its terms bears interest only after Maturity, means interest payable
after Maturity.
"Interest Payment Date," when used with respect to any series of
Securities, means the Stated Maturity of any installment of interest on those
Securities.
"Maturity," when used with respect to any Securities, means the date on
which the principal of any such Security becomes due and payable as therein or
herein provided, whether on a Repayment Date, at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an
3
<PAGE>
Assistant Controller, the Secretary or an Assistant Secretary of the Company,
and delivered to the Trustee. Wherever this Indenture requires that an Officers'
Certificate be signed also by an engineer or an accountant or other expert, such
engineer, accountant or other expert (except as otherwise expressly provided in
this Indenture) may be in the employ of the Company, and shall be acceptable to
the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may (except as
otherwise expressly provided in this Indenture) be an employee of or of counsel
to the Company. Such counsel shall be acceptable to the Trustee, whose
acceptance shall not be unreasonably withheld.
"Original Issue Discount Security" means (i) 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, and (ii) any other
Security deemed an Original Issue Discount Security for United States Federal
income tax purposes.
"Outstanding," when used with respect to Securities or Securities of any
series, means, as of the date of determination, all such Securities theretofore
authenticated and delivered under this Indenture, except:
(i) such Securities theretofore canceled by the Trustee or delivered
to the Trustee for cancellation;
(ii) such Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent in trust for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) such Securities in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this
Indenture, or which shall have been paid pursuant to the terms of Section
306 (except with respect to any such Security as to which proof
satisfactory to the Trustee is presented that such Security is held by a
person in whose hands such Security is a legal, valid and binding
obligation of the Company).
In determining whether the Holders of the requisite principal amount of such
Securities Outstanding have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, (i) the principal amount of any 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
the taking of such action upon a declaration of acceleration of the Maturity
thereof and (ii) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding. In determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer assigned to the corporate trust department of the Trustee knows to be
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee
4
<PAGE>
the pledgee's right to act as owner with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, limited liability
company, joint venture, association, joint-stock company, trust, unincorporated
organization, government or other entity or any agency or political subdivision
thereof.
"Place of Payment" means the office of the Trustee or an agent of the
Trustee in New York, New York.
"Predecessor Securities" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in lieu of a lost, destroyed or
stolen Security shall be deemed to evidence the same debt as the lost, destroyed
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 specified in the Security at which it is to be redeemed pursuant
to this Indenture.
"Regular Record Date" for the interest payable on any Security on any
Interest Payment Date means the date specified in such Security as the Regular
Record Date.
"Repayment Date," when used with respect to any Security to be repaid,
means the date fixed for such repayment pursuant to such Security.
"Repayment Price," when used with respect to any Security to be repaid,
means the price at which it is to be repaid pursuant to such Security.
"Responsible Officer," when used with respect to the Trustee, means the
chairman or vice-chairman of the board of directors, the chairman or
vice-chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer, the cashier, any assistant cashier, any
senior trust officer or trust officer, the controller and any assistant
controller 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.
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"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of indebtedness, as the case may
be, of any series authenticated and delivered from time to time under this
Indenture.
"Security Register" shall have the meaning specified in Section 305.
"Security Registrar" means the Person who keeps the Security Register
specified in Section 305.
"Securityholder" means a Person in whose name a Security is registered in
the Security Register.
"Senior Indebtedness" means the principal of and premium, if any, and
interest on the following whether outstanding on the date of execution of this
Indenture or thereafter incurred or created (i) indebtedness of the Company for
money borrowed by the Company (including purchase money obligations with an
original maturity in excess of one year) or evidenced by securities (other than
the Securities), notes, bankers' acceptances or other corporate debt securities
or similar instruments issued by the Company; (ii) unreimbursed drawings under
letters of credit; (iii) indebtedness of the Company constituting a guarantee of
indebtedness of others of the type referred to in the preceding clauses (i) and
(ii); or (iv) renewals, extensions or refundings of any of the indebtedness
referred to in the preceding clauses (i), (ii) and (iii) unless, in the case of
any particular indebtedness, renewal, extension or refunding, under the express
provisions of the instrument creating or evidencing the same, or pursuant to
which the same is outstanding, such indebtedness or such renewal, extension or
refunding thereof is not superior in right of payment to the Securities.
"Special Record Date" for the payment of any Defaulted Interest (as defined
in Section 307) means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" when used with respect to any Security or any installment
of principal thereof or interest thereon means the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable.
"Subsidiary" of any specified corporation means any corporation at least a
majority of whose outstanding Voting Stock shall at the time be owned, directly
or indirectly, by the specified corporation or by one or more of its
Subsidiaries, or both.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939, as
amended by the Trust Indenture Reform Act of 1990, as in force at the date as of
which this instrument was executed except as provided in Section 905.
"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 and
include each Person who is then a Trustee hereunder. 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.
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"U.S. Government Obligations" means securities that are (x) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (y) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America, the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or redeemable at the option of the issuer thereof.
"Vice President" when used with respect to the Company or the Trustee means
any vice president, whether or not designated by a number or a word or words
added before or after the title "vice president," including, without limitation,
an assistant vice president.
"Voting Stock," as applied to the stock of any corporation, means stock of
any class or classes (however designated) having by the terms thereof ordinary
voting power to elect a majority of the members of the board of directors (or
other governing body) of such corporation other than stock having such power
only by reason of the happening of a contingency.
Section 102. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and, if
requested, 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.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture (except for the written statement
required by Section 1004) 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 103. Form of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such
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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 the other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Securityholders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Securityholders or Securityholders of any series may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Securityholders in person or by an 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. If any Securities are
denominated in coin or currency other than that of the United States, then for
the purposes of determining whether the Holders of the requisite principal
amount of Securities have taken any action as herein described, the principal
amount of such Securities shall be deemed to be that amount of United States
dollars that could be obtained for such principal amount on the basis of the
spot rate of exchange into United States dollars for the currency in which such
Securities are denominated (as evidenced to the Trustee by an Officers'
Certificate) as of the date the taking of such action by the Holders of such
requisite principal amount is evidenced to the Trustee as provided in the
immediately preceding sentence. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Securityholders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness to such
execution or by the certificate of any 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 an officer of a corporation or a member of a partnership, on
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behalf of such corporation or partnership, such certificate or affidavit shall
also constitute sufficient proof of his authority. The fact and date of the
execution of any such instrument or writing, or the authority of the person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other action, the Company
may, at its option, by Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other action, but the Company shall have
no obligation to do so. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other action may be given
before or after the record date, but only the Holders of record at the close of
business on the record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Securities
Outstanding have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other action, and for that
purpose the Securities Outstanding shall be computed as of the record date;
provided that no such authorization, agreement or consent by the Holders on the
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than six months after the record
date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other action by the Holder of any Security shall bind the Holder of
every Security issued upon the transfer thereof or in exchange therefor or in
lieu thereof, in respect of anything done or suffered to be done by the Trustee
or the Company in reliance thereon whether or not notation of such action is
made upon such Security.
Section 105. Notices, etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Securityholders 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 Securityholder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Securityholder shall be
sufficient for every purpose hereunder (except as provided in Section
501(4) or, in the case of a request for repayment, as specified in the
Security carrying the right to repayment) if in writing and mailed,
first-class postage prepaid, to the Company addressed to it at the address
of its principal office specified in the first paragraph of this instrument
or at any other address previously furnished in writing to the Trustee by
the Company.
Section 106. Notices to Securityholders; Waiver. Where this Indenture or
any Security provides for notice to Securityholders of any event, such notice
shall be sufficiently given (unless otherwise herein or in such Security
expressly provided) if in writing and mailed, first-
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class postage prepaid, to each Securityholder 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 Securityholders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Securityholder shall affect the sufficiency of such notice with
respect to other Securityholders. Where this Indenture or any Security 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
Securityholders 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 as a result of
a strike, work stoppage or otherwise, it shall be impractical to mail notice of
any event to any Securityholder when such notice is required to be given
pursuant to any provision of this Indenture, then any method of notification as
shall be satisfactory to the Trustee and the Company shall be deemed to be a
sufficient giving of such notice.
Section 107. Conflict with Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with the duties imposed by any of Sections 310 to
317, inclusive, of the Trust Indenture Act through the operation of Section
318(c) thereof, such imposed duties shall control.
Section 108. 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 109. Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
Section 110. Separability Clause. In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 111. Benefits of Indenture. Nothing in this Indenture or in any
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, any Authenticating Agent or Paying Agent,
the Security Registrar and the Holders of Securities (or such of them as may be
affected thereby), any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 112. Governing Law. This Indenture shall be construed in accordance
with and governed by the laws of the State of New York, without regard to the
conflicts of law principles thereof.
Section 113. Counterparts. 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.
Section 114. Judgment Currency. The Company 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
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court it is necessary to convert the sum due in respect of the principal of, or
premium or interest, if any, 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 New York Banking
Day (as defined below) preceding that on which final unappealable judgment is
given 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
subsection (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. For purposes of the foregoing, "New York Banking Day" means any
day except a Saturday, Sunday or a legal holiday in the City of New York or a
day on which banking institutions in the City of New York are authorized or
required by law or executive order to close.
ARTICLE TWO
Security Forms
Section 201. Forms Generally. The Securities shall have 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 applicable laws or regulations or with the rules of any
securities exchange, or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. Any portion of the text of any Security may be set forth on the
reverse thereof, with an appropriate reference thereto on the face of the
Security.
The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders or may be
produced in any other manner, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities, subject, with
respect to the Securities of any series, to the rules of any securities exchange
on which such Securities are listed.
Section 202. Forms of Securities. Each Security shall be in one of the
forms approved from time to time by or pursuant to a Board Resolution, or
established in one or more indentures supplemental hereto. Prior to the delivery
of a Security to the Trustee for authentication in any form approved by or
pursuant to a Board Resolution, the Company shall deliver to the Trustee the
Board Resolution by or pursuant to which such form of Security has been
approved, which Board Resolution shall have attached thereto a true and correct
copy of the form of Security which has been approved thereby or, if a Board
Resolution authorizes a specific officer or officers to approve a form of
Security, a certificate of such officer or officers approving the form of
Security attached thereto. Any form of Security approved by or pursuant to a
Board
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Resolution must be acceptable as to form to the Trustee, such acceptance to be
evidenced by the Trustee's authentication of Securities in that form or a
certificate signed by a Responsible Officer of the Trustee and delivered to the
Company.
Section 203. Form of Trustee's Certificate of Authentication. The form of
Trustee's Certificate of Authentication for any Security issued pursuant to this
Indenture shall be substantially as follows:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Chase Bank of Texas, National Association,
as Trustee,
Dated: By:
--------------------------- ---------------------------------------
Authorized Signatory
Section 204. Securities Issuable in the Form of a Global Security.
(a) If the Company shall establish pursuant to Sections 202 and 301 that
the Securities of a particular series are to be issued in whole or in part in
the form of one or more Global Securities, then the Company shall execute and
the Trustee or its agent shall, in accordance with Section 303 and the Company
Request delivered to the Trustee or its agent thereunder, authenticate and
deliver, such Global Security or Securities, which (i) shall represent, and
shall be denominated in an amount equal to the aggregate principal amount of,
the Outstanding Securities of such series to be represented by such Global
Security or Securities, or such portion thereof as the Company shall specify in
a Company Request, (ii) shall be registered in the name of the Depositary for
such Global Security or Securities or its nominee, (iii) shall be delivered by
the Trustee or its agent to the Depositary or pursuant to the Depositary's
instruction and (iv) shall bear a legend substantially to the following effect:
"Unless and until it is exchanged in whole or in part for the individual
Securities represented hereby, this Global Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary."
(b) Notwithstanding any other provisions of this Section 204 or of Section
305, and subject to the provisions of paragraph (c) below, unless the terms of a
Global Security expressly permit such Global Security to be exchanged in whole
or in part for individual Securities, a Global Security may be transferred, in
whole but not in part and in the manner a provided in Section 305, only to a
nominee of the Depositary for such Global Security, or to the Depositary, or a
successor Depositary for such Global Security selected or approved by the
Company, or to a nominee of such successor Depositary unless (i) such Depositary
(A) has
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notified the Company that it is unwilling or unable to continue as Depositary
for such Global Security or (B) has ceased to be a clearing agency registered as
such under the Exchange Act or announces an intention permanently to cease
business or does in fact do so or (ii) there shall have occurred and be
continuing an Event of Default with respect to such Global Security.
(c) (i) If at any time the Depositary for a Global Security notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Security or if at any time the Depositary for the Securities for such series
ceases to be a clearing agency registered under the Securities Exchange Act of
1934, as amended, or other applicable statute or regulation, the Company shall
appoint a successor Depositary with respect to such Global Security. If a
successor Depositary for such Global Security is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company will execute, and the Trustee or its agent, upon
receipt of a Company Request for the authentication and delivery of individual
Securities of such series in exchange for such Global Security, will
authenticate and deliver, individual Securities of such series of like tenor and
terms in an aggregate principal amount equal to the principal amount of the
Global Security in exchange for such Global Security.
(ii) The Company may at any time and in its sole discretion determine
that the Securities of any series or portion thereof issued or issuable in
the form of one or more Global Securities shall no longer be represented by
such Global Security or Securities. In such event the Company will execute,
and the Trustee, upon receipt of a Company Request for the authentication
and delivery of individual Securities of such series in exchange in whole
or in part for such Global Security, will authenticate and deliver
individual Securities of such series of like tenor and terms in definitive
form in an aggregate principal amount equal to the principal amount of such
Global Security or Securities representing such series or portion thereof
in exchange for such Global Security or Securities.
(iii) If specified by the Company pursuant to Sections 202 and 301
with respect to Securities issued or issuable in the form of a Global
Security, the Depositary for such Global Security may surrender such Global
Security in exchange in whole or in part for individual Securities of such
series of like tenor and terms in definitive form on such terms as are
acceptable to the Company and such Depositary. Thereupon the Company shall
execute, and the Trustee or its agent shall authenticate and deliver,
without service charge, (1) to each Person specified by such Depositary a
new Security or Securities of the same series of like tenor and terms and
of any authorized denomination as requested by such Person in 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 of like tenor and terms and in an authorized denomination equal to
the difference, if any, between the principal amount of the surrendered
Global Security and the aggregate principal amount of Securities delivered
to the Holders thereof.
(iv) In any exchange provided for in any of the preceding three
subsections, the Company will execute and the Trustee or its agent will
authenticate and deliver individual Securities in definitive registered
form in authorized denominations.
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Upon the exchange of the entire principal amount of a Global Security for
individual Securities, such Global Security shall be canceled by the
Trustee or its agent. Except as
provided in the preceding paragraph, Securities issued in exchange for a
Global Security pursuant to this Section shall be registered in such names
and in such authorized denominations as the Depositary for such Global
Security, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee or the Security Registrar. The
Trustee or the Security Registrar shall deliver such Securities to the
Persons in whose names such Securities are so registered.
ARTICLE THREE
The Securities
Section 301. General Title; General Limitations; Issuable in Series; Terms
of Particular Series. The aggregate principal amount of Securities which may be
authenticated and delivered and Outstanding under this Indenture is not limited.
The Securities may be issued in one or more series up to an aggregate
principal amount of Securities as from time to time may be authorized by the
Board of Directors. All Securities of each series under this Indenture shall in
all respects be equally and ratably entitled to the benefits hereof with respect
to such series without preference, priority or distinction on account of the
actual time of the authentication and delivery or Stated Maturity of the
Securities of such series.
Each series of Securities shall be created either by or pursuant to a Board
Resolution or by or pursuant to an indenture supplemental hereto. The Securities
of each such series may bear such date or dates, be payable at such place or
places, have such Stated Maturity or Maturities, be issuable at such premium
over or discount from their face value, bear interest at such rate or rates
(which may be fixed or floating), from such date or dates, payable in such
installments and on such dates and at such place or places to the Holders of
Securities registered as such on such Regular Record Dates, or may bear no
interest, and may be redeemable or repayable at such Redemption Price or Prices
or Repayment Price or Prices, as the case may be, whether at the option of the
Holder or otherwise, and upon such terms, all as shall be provided for in or
pursuant to the Board Resolution or in or pursuant to the supplemental indenture
creating that series. There may also be established in or pursuant to a Board
Resolution or in or pursuant to a supplemental indenture prior to the issuance
of Securities of each such series, provision for:
(1) the exchange or conversion of the Securities of that series, at
the option of the Holders thereof, for or into new Securities of a
different series or other securities or other property of the Company or
another Person, including shares of capital stock of the Company or any
subsidiary of the Company or of any other Person or securities directly or
indirectly convertible into or exchangeable for any such shares;
(2) a sinking or purchase fund or other analogous obligation;
(3) if other than U.S. dollars, the currency or currencies or units
based on or related to currencies (including European Currency Units) in
which the Securities of such series shall be denominated and in which
payments of principal of, and any premium and interest on, such Securities
shall or may be payable;
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(4) if the principal of (and premium, if any) or interest, if any, on
the Securities of such series are to be payable, at the election of the
Company or a holder thereof, in a currency or currencies or units based on
or related to currencies (including European Currency Units) other than
that in which the Securities are stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made;
(5) if the amount of payments of principal of (and premium, if any) or
interest, if any, on the Securities of such series may be determined with
reference to an index based on (i) a currency or currencies or units based
on or related to currencies (including European Currency Units) other than
that in which the Securities are stated to be payable, (ii) changes in the
price of one or more other securities or groups or indexes of securities or
(iii) changes in the prices of one or more commodities or groups or indexes
of commodities, or any combination of the foregoing, the manner in which
such amounts shall be determined;
(6) if the aggregate principal amount of the Securities of that series
is to be limited, such limitations, and the maturity date of the principal
amount of such Securities of that series (which may be fixed or
extendible), and the rate or rates (which may be fixed or floating) per
annum at which the Securities of that series will bear interest, if any, or
the method of determining such rate or rates, and the payment dates and
record dates relating to such interest payments;
(7) the exchange of Securities of that series, at the option of the
Holders thereof, for other Securities of the same series of the same
aggregate principal amount of a different authorized kind or different
authorized denomination or denominations, or both;
(8) the appointment by the Trustee of an Authenticating Agent in one
or more places other than the location of the office of the Trustee with
power to act on behalf of the Trustee and subject to its direction in the
authentication and delivery of the Securities of any one or more series in
connection with such transactions as shall be specified in the provisions
of this Indenture or in or pursuant to the Board Resolution or the
supplemental indenture creating such series;
(9) the percentage of their principal amount at which such Securities
will be issued, and the portion of the principal amount of Securities of
the series, if other than the total principal amount thereof, which shall
be payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or provable in bankruptcy pursuant to Section 504;
(10) any Event of Default with respect to the Securities of such
series, if not set forth herein and any additions, deletions or other
changes to the Events of Default set forth herein that shall be applicable
to the Securities of such series (including a provision making any Event of
Default set forth herein inapplicable to the Securities of that series);
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(11) any covenant solely for the benefit of the Securities of such
series and any additions, deletions or other changes to the provisions of
Article Ten or any definitions relating to such Article that shall be
applicable to the Securities of such series (including a provision making
any Section of such Article inapplicable to the Securities of such series);
(12) the applicability of Section 402(b) of this Indenture to the
Securities of such series;
(13) if the Securities of the series shall be issued in whole or in
part in the form of a Global Security or Global Securities, the terms and
conditions, if any, upon which such Global Security or Global Securities
may be exchanged in whole or in part for other individual Securities; and
the Depositary for such Global Security or Global Securities (if other than
the Depositary specified in Section 101 hereof);
(14) the subordination of the Securities of such series to any other
indebtedness of the Company, including without limitation, the Securities
of any other series; and
(15) any other terms of the series, which shall not be inconsistent
with the provisions of this Indenture,
all upon such terms as may be determined in or pursuant to a Board Resolution or
in or pursuant to a supplemental indenture with respect to such series. All
Securities of the same series shall be substantially identical in tenor and
effect, except as to denomination.
The form of the Securities of each series shall be established pursuant to
the provisions of this Indenture in or pursuant to the Board Resolution or in or
pursuant to the supplemental indenture creating such series. The Securities of
each series shall be distinguished from the Securities of each other series in
such manner, reasonably satisfactory to the Trustee, as the Board of Directors
may determine.
Unless otherwise provided with respect to Securities of a particular
series, the Securities of any series may only be issuable in registered form,
without coupons.
Any terms or provisions in respect of the Securities of any series issued
under this Indenture may be determined pursuant to this Section by providing in
a Board Resolution or supplemental indenture for the method by which such terms
or provisions shall be determined.
Section 302. Denominations. The Securities of each series shall be issuable
in such denominations and currency as shall be provided in the provisions of
this Indenture or in or pursuant to the Board Resolution or the supplemental
indenture creating such series. In the absence of any such provisions with
respect to the Securities of any series, the Securities of that series shall be
issuable only in fully registered form in denominations of $1,000 and any
integral multiple thereof.
Section 303. Execution, Authentication and Delivery and Dating. The
Securities shall be executed on behalf of the Company by its Chairman of the
Board, its President, one of its Vice
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Presidents or its Treasurer under its corporate seal reproduced thereon and
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee for authentication; and the Trustee shall, upon Company Order,
authenticate and make available for delivery such Securities as in this
Indenture provided and not otherwise.
Prior to any such authentication and delivery, the Trustee shall be
entitled to receive, in addition to any Officers' Certificate and Opinion of
Counsel required to be furnished to the Trustee pursuant to Section 102, and the
Board Resolution and any certificate relating to the issuance of the series of
Securities required to be furnished pursuant to Section 202, an Opinion of
Counsel stating that:
(1) all instruments furnished to the Trustee conform to the
requirements of the Indenture and constitute sufficient authority hereunder
for the Trustee to authenticate and deliver such Securities;
(2) the form and terms (or in connection with the issuance of
medium-term Securities under Section 311, the manner of determining the
terms) of such Securities have been established in conformity with the
provisions of this Indenture;
(3) all laws and requirements with respect to the execution and
delivery by the Company of such Securities have been complied with, the
Company has the corporate power to issue such Securities and such
Securities have been duly authorized and delivered by the Company and,
assuming due authentication and delivery by the Trustee, constitute legal,
valid and binding obligations of the Company enforceable in accordance with
their terms (subject, as to enforcement of remedies, to (i) applicable
bankruptcy, reorganization, insolvency, fraudulent conveyance or transfer,
moratorium or other laws and legal principles affecting creditors' rights
generally from time to time in effect; (ii) general equitable principles,
whether applied in an action at law or in equity, and the exercise of
discretionary authority of any court before which a proceeding may be
brought; (iii) commercial reasonableness and unconscionability and an
implied covenant of good faith and fair dealing; and (iv) the power of the
courts to award damages in lieu of equitable remedies) and entitled to the
benefits of this Indenture, equally and ratably with all other Securities,
if any, of such series Outstanding; and
(4) such other matters as the Trustee may reasonably request;
and, if the authentication and delivery relates to a new series of Securities
created by an indenture supplemental hereto, also stating that all laws and
requirements with respect to the
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form and execution by the Company of the supplemental indenture with respect to
that series of Securities have been complied with, the Company has corporate
power to execute and deliver any such supplemental indenture and has taken all
necessary corporate action for those purposes and any such supplemental
indenture has been executed and delivered and constitutes the legal, valid and
binding obligation of the Company enforceable in accordance with its terms
(subject, as to enforcement of remedies, to (i) applicable bankruptcy,
reorganization, insolvency, fraudulent conveyance or transfer, moratorium or
other laws and legal principles affecting creditors' rights generally from time
to time in effect; (ii) general equitable principles, whether applied in an
action at law or in equity, and the exercise of discretionary authority of any
court before which a proceeding may be brought; (iii) commercial reasonableness
and unconscionability and an implied covenant of good faith and fair dealing;
and (iv) the power of the courts to award damages in lieu of equitable
remedies).
The Trustee shall not be required to authenticate such Securities if the
issue thereof will adversely affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture.
Unless otherwise provided in the form of Security for any series, all
Securities shall be dated the date of their authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
Section 304. Temporary Securities. Pending the preparation of definitive
Securities of any series, the Company may execute, and, upon receipt of the
documents required by Section 303, together with a 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 such series to be prepared without unreasonable delay.
After the preparation of definitive Securities, 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, without charge to the Holder; and upon
surrender for cancellation of any one or more temporary Securities the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of such series of
authorized denominations and of like tenor and terms. Until so exchanged the
temporary Securities of such series shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities of such series.
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Section 305. Registration, Transfer and Exchange. The Company shall keep or
cause to be kept a register (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, or of Securities
of a particular series, and for transfers of Securities or of Securities of such
series. Any such register shall be in written form or in any other form capable
of being converted into written form within a reasonable time. At all reasonable
times the information contained in such register or registers shall be available
for inspection by the Trustee at the office or agency to be maintained by the
Company as provided in Section 1002.
Subject to Section 204, upon surrender for transfer of any Security of any
series at the office or agency of the Company in a Place of Payment, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, in the name of the designated transferee or transferees, one or more
new Securities of such series of any authorized denominations, of a like
aggregate principal amount and Stated Maturity and of like tenor and terms.
Subject to Section 204, at the option of the Holder, Securities of any
series may be exchanged for other Securities of such series of any authorized
denominations, of a like aggregate principal amount and Stated Maturity and of
like tenor and terms, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and make available for
delivery, the Securities which the Securityholder making the exchange is
entitled to receive.
All Securities issued upon any transfer or exchange of Securities shall be
the valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Securities surrendered upon such
transfer or exchange.
Every Security presented or surrendered for transfer or 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.
Unless otherwise provided in the Security to be transferred or exchanged,
no service charge shall be made on any Securityholder for any transfer or
exchange of Securities, but the Company may (unless otherwise provided in such
Security) require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Securities, other than exchanges pursuant to Section 304 or 906 not
involving any transfer.
The Company shall not be required (i) to issue, transfer or exchange any
Security 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
such series selected for redemption under Section 1103 and ending at the close
of business on the date of such mailing, or (ii) to transfer or exchange any
Security so selected for redemption in whole or in part, except for the portion
of such Security not so selected for redemption.
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None of the Company, the Trustee, any agent of the Trustee, any Paying
Agent or the Security Registrar 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.
The Company initially appoints the Trustee to act as Security Registrar for
the Securities on its behalf. The Company may at any time and from time to time
authorize any Person to act as Security Registrar in place of the Trustee with
respect to any series of Securities issued under this Indenture.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities. If (i) any
mutilated Security is surrendered to the Trustee, or the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) there is delivered to the Company and the Trustee such
security or indemnity as may be required by them to save each of them harmless,
then, in the absence of notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute and upon
its request the Trustee shall authenticate and deliver, in exchange for or in
lieu of any such mutilated, destroyed, lost or stolen Security, a new Security
of like tenor, series, Stated Maturity and principal amount, bearing a number
not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, 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 the same 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 307. Payment of Interest; Interest Rights Preserved. Unless
otherwise provided with respect to such Security pursuant to Section 301,
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 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 registered Holder on the
relevant Regular Record Date by virtue of his having
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been such Holder; and, except as hereinafter provided, such Defaulted Interest
may be paid by the Company, at its election in each case, as provided in Clause
(1) or Clause (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names any such Securities (or their respective
Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each
such Security and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited 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 nor 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 the Holder of each such Security 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 mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names such Securities (or their respective Predecessor Securities) are
registered 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 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.
If any installment of interest the Stated Maturity of which is on or prior
to the Redemption Date for any Security called for redemption pursuant to
Article Eleven is not paid or duly provided for on or prior to the Redemption
Date in accordance with the foregoing provisions of this Section, such interest
shall be payable as part of the Redemption Price of such Securities.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners. The Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name any Security is
registered in the
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Security Register as the owner of such Security for the purpose of receiving
payment of principal of (and premium, if any), and (subject to Section 307)
interest on, such Security and for all other purposes whatsoever, whether or not
such Security be overdue, and neither the Company, the Trustee nor any agent of
the Company or the Trustee shall be affected by notice to the contrary.
Section 309. Cancellation. All Securities surrendered for payment,
redemption, transfer, conversion or exchange or credit against a sinking fund
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and, if not already canceled, 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 all Securities so delivered shall be
promptly canceled by the Trustee. No Security 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. The Trustee shall return all canceled
Securities to the Company.
Section 310. Computation of Interest. Unless otherwise provided as
contemplated in Section 301, interest on the Securities shall be calculated on
the basis of a 360-day year of twelve 30-day months.
Section 311. Medium-term Securities. Notwithstanding any contrary provision
herein, if all Securities of a series are not to be originally issued at one
time, it shall not be necessary for the Company to deliver to the Trustee an
Officers' Certificate, Board Resolution, supplemental indenture, Opinion of
Counsel or Company Request otherwise required pursuant to Sections 202, 301 and
303 at or prior to the time of authentication of each Security of such series if
such documents are delivered to the Trustee or its agent at or prior to the
authentication upon original issuance of the first Security of such series to be
issued; provided that any subsequent request by the Company to the Trustee to
authenticate Securities of such series upon original issuance shall constitute a
representation and warranty by the Company that as of the date of such request,
the statements made in the Officers' Certificate delivered pursuant to Section
102 shall be true and correct as if made on such date.
An Officers' Certificate, supplemental indenture or Board Resolution
delivered by the Company to the Trustee in the circumstances set forth in the
preceding paragraph may provide that Securities which are the subject thereof
will be authenticated and delivered by the Trustee or its agent on original
issue from time to time upon the telephonic or written order of persons
designated in such Officers' Certificate, Board Resolution or supplemental
indenture (any such telephonic instructions to be confirmed promptly in writing
by such persons) and that such persons are authorized to determine, consistent
with such Officers' Certificate, supplemental indenture or Board Resolution,
such terms and conditions of said Securities as are specified in such Officers'
Certificate, supplemental indenture or Board Resolution.
Section 312. CUSIP Numbers. The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such 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
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by any defect in or omission of such numbers. The Company will promptly notify
the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
Satisfaction and Discharge of Indenture;
Defeasance; Unclaimed Moneys
Section 401. Applicability of Article. If, pursuant to Section 301,
provision is made for the defeasance of Securities of a series and if the
Securities of such series are denominated and payable only in Dollars (except as
provided pursuant to Section 301), then the provisions of this Article Four
relating to defeasance of Securities shall be applicable except as otherwise
specified pursuant to Section 301 for Securities of such series. Defeasance
provisions, if any, for Securities denominated in a foreign currency may be
specified pursuant to Section 301.
Section 402. Satisfaction and Discharge of Indenture; Defeasance.
(a) This Indenture shall cease to be of further effect with respect to any
series of Securities (except as to any surviving rights of conversion, transfer
or exchange of Securities of such series expressly provided for herein or in the
form of Security for such series) and the Trustee, on demand of and at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture as to such series, when (1) either
(A) all Securities of that series theretofore authenticated and delivered (other
than (i) Securities of such series which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306, and (ii) Securities
of such series of 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 1003) have been delivered
to the Trustee canceled or for cancelation; or (B) all such Securities of that
series not theretofore delivered to the Trustee canceled or for cancelation (i)
have become due and payable, or (ii) will become due and payable at their Stated
Maturity within one year, or (iii) are to be called for redemption within one
year under arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company, and
the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to
be deposited with the Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee canceled or for cancelation, 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 the
Securities of such series; and (3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture with respect to the Securities of such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture with respect to
any series of Securities, the obligations of the Company to the Trustee with
respect to that series under Section 607 shall survive and the obligations of
the Trustee under Sections 404 and 1003 shall survive.
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(b) Subject to Sections 402(c), 403 and 407, the Company at any time
may terminate, with respect to Securities of a particular series, (i) all its
obligations under the Securities of such series and this Indenture with respect
to the Securities of such series ("legal defeasance option") or (ii) its
obligations with respect to the Securities of such series under clause (3) of
Section 801 ("covenant defeasance option"). The Company may exercise its legal
defeasance option notwithstanding its prior exercise of its covenant defeasance
option.
If the Company exercises its legal defeasance option, payment of the
Securities of the defeased series may not be accelerated because of an Event of
Default. If the Company exercises its covenant defeasance option, payment of the
Securities may not be accelerated because of an Event of Default related to the
specified covenants.
Upon satisfaction of the conditions set forth herein and upon request of
the Company, the Trustee shall acknowledge in writing the discharge of those
obligations that the Company terminates.
(c) Notwithstanding clause (a) above and the exercise of the legal
defeasance option in clause (b) above, the Company's obligations in Sections
304, 305, 306, 310, 1002, 701, 607, 608, 404, 405, 406 and 407 shall survive
until the Securities of the defeased series have been paid in full. Thereafter,
the Company's obligations in Sections 607, 405 and 406 shall survive.
Section 403. Conditions of Defeasance. The Company may exercise its legal
defeasance option or its covenant defeasance option with respect to Securities
of a particular series only if:
(1) the Company irrevocably deposits in trust with the Trustee money
or U.S. Government Obligations for the payment of principal of, and
premium, if any, and interest on, the Securities of such series to maturity
or redemption, as the case may be;
(2) the Company delivers to the Trustee a certificate from a
nationally recognized firm of independent public accountants expressing
their opinion that the payments of principal and interest when due and
without reinvestment on the deposited U.S. Government Obligations plus any
deposited money without investment will provide cash at such times and in
such amounts as will be sufficient to pay the principal, premium, if any,
and interest when due on all the Securities of such series to maturity or
redemption, as the case may be;
(3) 91 days pass after the deposit is made and during the 91-day
period no Default specified in Section 501(5) or (6) with respect to the
Company occurs which is continuing at the end of the period;
(4) no Default has occurred and is continuing on the date of such
deposit and after giving effect thereto;
(5) the deposit does not constitute a default under any other
agreement binding on the Company;
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(6) the Company delivers to the Trustee an Opinion of Counsel to the
effect that the trust resulting from the deposit does not constitute, or is
qualified as, a regulated investment company under the Investment Company
Act of 1940;
(7) in the event of the legal defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from the Internal Revenue Service a ruling, or (ii)
since the date of this Indenture there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of
Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred;
(8) in the event of the covenant defeasance option, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of such covenant
defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such covenant defeasance had not occurred; and
(9) the Company delivers to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent to the
defeasance and discharge of the Securities of such series as contemplated
by this Article Four have been complied with.
Before or after a deposit, the Company may make arrangements satisfactory
to the Trustee for the redemption of Securities of such series at a future date
in accordance with Article Four.
Section 404. Application of Trust Money. The Trustee shall hold in trust
money or U.S. Government Obligations deposited with it pursuant to this Article
Four. It shall apply the deposited money and the money from U.S. Government
Obligations through any paying agent and in accordance with this Indenture to
the payment of principal of, and premium, if any, and interest on, the
Securities of the defeased series.
Section 405. Repayment to Company. The Trustee and any paying agent shall
promptly turn over to the Company upon request any excess money or securities
held by them at any time.
Subject to any applicable abandoned property law, the Trustee and any
paying agent shall pay to the Company upon request any money held by them for
the payment of principal, premium or interest that remains unclaimed for two
years, and, thereafter, Holders entitled to such money must look to the Company
for payment as general creditors and all liability of the Trustee or such paying
agent with respect to such money shall thereupon cease.
Section 406. Indemnity for U.S. Government Obligations. The Company shall
pay and shall indemnify the Trustee and the Holders against any tax, fee or
other charge imposed on or
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assessed against deposited U.S. Government Obligations or the principal and
interest received on such U.S. Government Obligations.
Section 407. Reinstatement. If the Trustee or any paying agent is unable to
apply any money or U.S. Government Obligations in accordance with this Article
Four by reason of any legal proceeding or by reason of any order or judgment of
any court or government authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture and
the Securities of the defeased series shall be revived and reinstated as though
no deposit had occurred pursuant to this Article Four until such time as the
Trustee or any paying agent is permitted to apply all such money or U.S.
Government Obligations in accordance with this Article Four; provided, however,
that, if the Company makes any payment of principal or, premium, if any, or
interest, if any, on any Securities following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
paying agent.
ARTICLE FIVE
Remedies
Section 501. Events of Default. "Event of Default," wherever used herein,
means with respect to any series of Securities 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), unless such event is either inapplicable
to a particular series or it is specifically deleted or modified in the
supplemental indenture creating such series of Securities or in the form of
Security for such series:
(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 90 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the payment of any sinking or purchase fund or
analogous obligation when the same becomes due by the terms of the
Securities of such series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture in respect of the Securities of such
series (other than a covenant or warranty in respect of the Securities of
such series a default in the performance of which or the breach of which is
elsewhere in this Section specifically dealt with), all of such covenants
and warranties in the Indenture which are not expressly stated to be for
the benefit of a particular series of Securities being deemed in respect of
the Securities of all series for this purpose, 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 such series, a written notice
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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 entry of an order for relief against the Company under the
Federal Bankruptcy Code by a court having jurisdiction in the premises or a
decree or order by a court having jurisdiction in the premises adjudging
the Company a bankrupt or insolvent under any other applicable Federal or
State law, or the entry of a decree or order approving as properly filed a
petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Company under the Federal Bankruptcy Code or any other
applicable Federal or State law, or appointing a receiver, liquidator,
assignee, trustee, sequestrator (or other similar official) of the Company
or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order
unstayed and in effect for a period of 60 consecutive days; or
(6) the consent by the Company to the institution of bankruptcy or
insolvency proceedings against it, or the filing by it of a petition or
answer or consent seeking reorganization or relief under the Federal
Bankruptcy Code or any other applicable Federal or State law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(7) any other Event of Default provided in the supplemental indenture
under which such series of Securities is issued or in the form of Security
for such series.
Section 502. Acceleration of Maturity; Rescission and Annulment. If an
Event of Default described in paragraph (1), (2), (3), (4) or (7) (if the Event
of Default under paragraph (4) or (7) is with respect to less than all series of
Securities then Outstanding) of Section 501 occurs and is continuing with
respect to any series, then and in each and every such case, unless the
principal of all the Securities of such series shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities of such series then Outstanding hereunder
(each such series acting as a separate class), by notice in writing to the
Company (and to the Trustee if given by Holders), may declare the principal
amount (or, if the Securities of such series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of that series) of all the Securities of such series then Outstanding and
all accrued interest thereon to be due and payable immediately, and upon any
such declaration the same shall become and shall be immediately due and payable,
anything in this Indenture or in the Securities of such series contained to the
contrary notwithstanding. If an Event of Default described in paragraph (4) or
(7) (if the Event of Default under paragraph (4) or (7) is with respect to all
series of Securities then Outstanding), or (5) or (6) of Section 501 occurs and
is continuing, then and in each and every such case, unless the principal of all
the Securities shall have already become due and payable, either the Trustee or
the Holders of not less than 25% in aggregate principal amount of all the
Securities then Outstanding hereunder (treated as one class), by notice in
writing to the Company (and to the Trustee if given by Holders), may
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declare the principal amount (or, if any Securities are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms thereof) of all the Securities then Outstanding and all accrued interest
thereon to be due and payable immediately, and upon any such declaration the
same shall become and shall be immediately due and payable, anything in this
Indenture or in the Securities contained to the contrary notwithstanding.
At any time after such a declaration of acceleration has been made with
respect to the Securities of any series and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of such series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue installments of interest on the Securities of
such series,
(B) the principal of (and premium, if any, on) any Securities of
such series which have become due otherwise than by such declaration of
acceleration, and interest thereon at the rate or rates prescribed therefor
by the terms of the Securities of such series, to the extent that payment
of such interest is lawful,
(C) interest upon overdue installments of interest at the rate or
rates prescribed therefor by the terms of the Securities of such series to
the extent that payment of such interest is lawful, 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 all other amounts due the Trustee under
Section 607;
and
(2) all Events of Default with respect to such series of Securities,
other than the nonpayment of the principal of the Securities of such series
which have become due solely by such acceleration, have been cured or
waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(1) default is made in the payment of any installment of interest on
any Security of any series when such interest becomes due and payable, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof, or
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(3) default is made in the payment of any sinking or purchase fund or
analogous obligation when the same becomes due by the terms of the
Securities of any series,
and any such default continues for any period of grace provided with respect to
the Securities of such series, the Company will, upon demand of the Trustee, pay
to it, for the benefit of the Holder of any such Security (or the Holders of any
such series in the case of Clause (3) above), the whole amount then due and
payable on any such Security (or on the Securities of any such series in the
case of Clause (3) above) for principal (and premium, if any) and interest, with
interest, to the extent that payment of such interest shall be legally
enforceable, upon the overdue principal (and premium, if any) and upon overdue
installments of interest, at such rate or rates as may be prescribed therefor by
the terms of any such Security (or of Securities of any such series in the case
of Clause (3) above); 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 and all other amounts due the Trustee under Section 607.
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, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company or any other obligor upon the Securities of such series and
collect the money adjudged or decreed to be payable in the manner provided by
law out of the property of the Company or any other obligor upon such
Securities, wherever situated.
If an Event of Default with respect to any series of Securities 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 504. Trustee May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor 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 for the payment of overdue
principal or interest) shall be entitled and empowered, by intervention in such
proceedings 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 and
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 all other amounts due the Trustee
under Section 607) and of the Securityholders allowed in such judicial
proceeding, and
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(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator, sequestrator (or other similar
official) in any such judicial proceeding is hereby authorized by each
Securityholder to make such payment to the Trustee and in the event that the
Trustee shall consent to the making of such payments directly to the
Securityholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder any
plan or reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Securityholder in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities of any
series may be prosecuted and enforced by the Trustee without the possession of
any of the Securities of such series or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agent and counsel, be
for the ratable benefit of the Holders of the Securities of the series in
respect of which such judgment has been recovered.
Section 506. Application of Money Collected. Any money collected by the
Trustee with respect to a series of Securities pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities of such series 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 607.
SECOND: To the payment of the amounts then due and
unpaid upon the Securities of that series
for principal (and premium, if any) and
interest, 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 premium, if any) and
interest, respectively.
THIRD: To the Company.
Section 507. Limitation on Suits. No Holder of any Security of any series
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to Securities of such series;
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(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such 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 such series;
it being understood and intended that no one or more Holders of Securities of
such series 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 Holders of Securities of such series, or to obtain or to
seek to obtain priority or preference over any other such Holders or to enforce
any right under this Indenture, except in the manner herein provided and for the
equal and proportionate benefit of all the Holders of all Securities of such
series.
Section 508. Unconditional Right of Securityholders to Receive Principal,
Premium and Interest. Notwithstanding any other provisions in this Indenture,
the Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and
(subject to Section 307) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repayment, on the Redemption Date or Repayment Date, as the case may be) and to
institute suit for the enforcement of any such payment, and such right shall not
be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies. If the Trustee or any
Securityholder has instituted any proceeding to enforce any right or remedy
under this Indenture and such proceeding has been discontinued or abandoned for
any reason, then and in every such case the Company, the Trustee and the
Securityholders shall, subject to any determination in such proceeding, be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and the Securityholders shall
continue as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative. No right or remedy herein
conferred upon or reserved to the Trustee or to the Securityholders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
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Section 511. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Security 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 or by law to the Trustee or to the
Securityholders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Securityholders, as the case may be.
Section 512. Control by Securityholders. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series, provided that
(1) the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the
action so directed may not lawfully be taken or would conflict with this
Indenture or if the Trustee in good faith shall, by a Responsible Officer,
determine that the proceedings so directed would involve it in personal
liability or be unjustly prejudicial to the Holders not taking part in such
direction, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series waive any past
default hereunder with respect to such series and its consequences, except a
default not theretofore cured
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or in the payment of any sinking
or purchase fund or analogous obligation with respect to the Securities of
such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series.
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
Section 514. Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant 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 the provisions of this Section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder, or
group of
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Securityholders, holding in the aggregate more than 10% in principal amount of
the Outstanding Securities of any series to which the suit relates, or to any
suit instituted by any Securityholder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption or repayment, on or after the Redemption Date or Repayment Date).
Section 515. Waiver of Stay or Extension Laws. The Company 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
the Company (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 601. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default with respect to
any series of Securities,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture with respect to the
Securities of such series, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may, with
respect to Securities of such series, 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 with respect to any series of
Securities has occurred and is continuing, the Trustee shall exercise with
respect to the Securities of such series 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 person would exercise or use under the circumstances in
the conduct of such person's 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
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(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 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 602. Notice of Defaults. Within 90 days after the occurrence of any
default hereunder with respect to Securities of any series, the Trustee shall
transmit by mail to all Securityholders of such series, as their names and
addresses appear in the Security Register, notice of such default hereunder
known to the Trustee, unless such default shall have been cured or waived;
provided, however, that, except in the case of a default in the payment of the
principal of (or premium, if any) or interest on any Security of such series or
in the payment of any sinking or purchase fund installment or analogous
obligation 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 interests of the Securityholders of such series; and provided,
further, that in the case of any default of the character specified in Section
501(4) with respect to Securities of such series no such notice to
Securityholders of such series shall be given until at least 90 days after the
occurrence thereof. For the purpose of this Section, the term "default," with
respect to Securities of any series, means any event which is, or after notice
or lapse of time or both would become, an Event of Default with respect to
Securities of such series.
Section 603. Certain Rights of Trustee. Except as otherwise provided in
Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
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(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) 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) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
written advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(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 Securityholders pursuant to this Indenture, unless such
Securityholders 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 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; and
(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.
Section 604. Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Securities, except the certificates of
authentication, shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities. The Trustee shall not be accountable for the use or application by
the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities. The Trustee, any Paying Agent, the
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar or such
other agent.
Section 606. 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
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under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 607. Compensation and Reimbursement. The Company agrees
(1) to pay to the Trustee from time to time such compensation for all
services rendered by it hereunder as the parties shall agree from time to
time (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 the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this trust, 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.
Section 608. Disqualification; Conflicting Interests. The Trustee for the
Securities of any series issued hereunder shall be subject to the provisions of
Section 310(b) of the Trust Indenture Act during the period of time provided for
therein. In determining whether the Trustee has a conflicting interest as
defined in Section 310(b) of the Trust Indenture Act with respect to the
Securities of any series, there shall be excluded for purposes of the
conflicting interest provisions of such Section 310(b) the Securities of every
other series issued under this Indenture. Nothing herein shall prevent the
Trustee from filing with the Commission the application referred to in the
second to last paragraph of Section 310(b) of the Trust Indenture Act.
Section 609. Corporate Trustee Required; Eligibility. There shall at all
times be a Trustee hereunder with respect to each series of Securities, which
shall be a corporation organized and doing business under the laws of the United
States of America or of any State, authorized under such laws to exercise
corporate trust powers, having a combined capital and surplus of at least
$50,000,000, and 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 the aforesaid 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.
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If at any time the Trustee with respect to any series of Securities shall
cease to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
Section 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee under Section 611.
(b) The Trustee may resign with respect to any series of Securities at
any time by giving written notice thereof to the Company. If an instrument of
acceptance by a successor Trustee 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.
(c) The Trustee may be removed with respect to any series of
Securities at any time by Act of the Holders of a majority in principal amount
of the Outstanding Securities of that series, delivered to the Trustee and to
the Company. If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of such
notice of removal, the removed Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 310(b) of the
Trust Indenture Act pursuant to Section 608(a) with respect to any series
of Securities after written request therefor by the Company or by any
Securityholder who has been a bona fide Holder of a Security of that series
for at least 6 months, or
(2) the Trustee shall cease to be eligible under Section 609 with
respect to any series of Securities and shall fail to resign after written
request therefor by the Company or by any such Securityholder, or
(3) the Trustee shall become incapable of acting with respect to
any series of Securities, or
(4) the Trustee 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 the series, or in the case of Clause (4), with respect
to all series, or (ii) subject to Section 514, any Securityholder who has been a
bona fide Holder of a Security of such series for at least 6 months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee with respect to the series, or, in the case of Clause (4),
with respect to all series.
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(e) If the Trustee shall resign, be removed or become incapable of
acting with respect to any series of Securities, or if a vacancy shall occur in
the office of the Trustee with respect to any series of Securities for any
cause, the Company, by a Board Resolution, shall promptly appoint a successor
Trustee for that series of Securities. If, within one year after such
resignation, removal or incapacity, or the occurrence of such vacancy, a
successor Trustee with respect to such series of Securities 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, become the successor Trustee with respect to such series and
supersede the successor Trustee appointed by the Company with respect to such
series. If no successor Trustee with respect to such series shall have been so
appointed by the Company or the Securityholders of such series and accepted
appointment in the manner hereinafter provided, any Securityholder who has been
a bona fide Holder of a Security of that series for at least 6 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 such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to any series and each appointment of a successor
Trustee with respect to any series by mailing written notice of such event by
first-class mail, postage prepaid, to the Holders of Securities of that series
as their names and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee and the address of its principal
Corporate Trust Office.
Section 611. Acceptance of Appointment by Successor. Every successor
Trustee appointed hereunder shall execute, acknowledge and deliver to the
Company and to the predecessor Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the predecessor Trustee shall become
effective with respect to any series as to which it is resigning or being
removed as Trustee, and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the predecessor Trustee with respect to any such series; but, on request of
the Company or the successor Trustee, such predecessor Trustee shall, upon
payment of its reasonable charges, if any, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the
predecessor Trustee, and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such predecessor Trustee
hereunder with respect to all or any such series, subject nevertheless to its
lien, if any, provided for in Section 607. Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
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 predecessor
Trustee and each successor Trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the predecessor
Trustee is not being succeeded shall continue to be vested in the predecessor
Trustee, and shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the
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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.
No successor Trustee with respect to any series of Securities shall accept
its appointment unless at the time of such acceptance such successor Trustee
shall be qualified and eligible with respect to that series under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of 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,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims Against Company.
(a) Subject to Subsection (b) of this Section, if the Trustee shall be
or shall become a creditor, directly or indirectly, secured or unsecured, of the
Company within 3 months prior to a default, as defined in Subsection (c) of this
Section, or subsequent to such a default, then, unless and until such default
shall be cured, the Trustee shall set apart and hold in a special account for
the benefit of the Trustee individually, the Holders of the Securities and the
holders of other indenture securities (as defined in Subsection (c) of this
Section):
(1) an amount equal to any and all reductions in the amount due and
owing upon any claim as such creditor in respect of principal or interest,
effected after the beginning of such 3-month period and valid as against
the Company and its other creditors, except any such reduction resulting
from the receipt or disposition of any property described in paragraph (2)
of this Subsection, or from the exercise of any right of set-off which the
Trustee could have exercised if a petition in bankruptcy had been filed by
or against the Company upon the date of such default; and
(2) all property received by the Trustee in respect of any claim as
such creditor, either as security therefor, or in satisfaction or
composition thereof, or otherwise, after the beginning of such 3-month
period, or an amount equal to the proceeds of any such property, if
disposed of, subject, however, to the rights, if any, of the Company and
its other creditors in such property or such proceeds.
Nothing herein contained, however, shall affect the right of the Trustee
(A) to retain for its own account (i) payments made on account of
any such claim by any Person (other than the Company) who is liable
thereon, and (ii)
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the proceeds of the bona fide sale of any such claim by the Trustee to a
third person, and (iii) distributions made in cash, securities or other
property in respect of claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law;
(B) to realize, for its own account, upon any property held by it
as security for any such claim, if such property was so held prior to the
beginning of such 3-month period;
(C) to realize, for its own account, but only to the extent of
the claim hereinafter mentioned, upon any property held by it as security
for any such claim, if such claim was created after the beginning of such
3-month period and such property was received as security therefor
simultaneously with the creation thereof, and if the Trustee shall sustain
the burden of proving that at the time such property was so received the
Trustee had no reasonable cause to believe that a default as defined in
Subsection (c) of this Section would occur within 3 months; or
(D) to receive payment on any claim referred to in paragraph (B)
or (C), against the release of any property held as security for such claim
as provided in paragraph (B) or (C), as the case may be, to the extent of
the fair value of such property.
For the purposes of paragraphs (B), (C) and (D), property substituted after
the beginning of such 3-month period for property held as security at the time
of such substitution shall, to the extent of the fair value of the property
released, have the same status as the property released, and, to the extent that
any claim referred to in any of such paragraphs is created in renewal of or in
substitution for or for the purpose of repaying or refunding any pre-existing
claim of the Trustee as such creditor, such claim shall have the same status as
such pre-existing claim.
If the Trustee shall be required to account, the funds and property held in
such special account and the proceeds thereof shall be apportioned between the
Trustee, the Securityholders and the holders of other indenture securities in
such manner that the Trustee, the Securityholders and the holders of other
indenture securities realize, as a result of payments from such special account
and payments of dividends on claims filed against the Company in bankruptcy or
receivership or in proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, the same percentage of their respective
claims, figured before crediting to the claim of the Trustee anything on account
of the receipt by it from the Company of the funds and property in such special
account and before crediting to the respective claims of the Trustee and the
Securityholders and the holders of other indenture securities dividends on
claims filed against the Company in bankruptcy or receivership or in proceedings
for reorganization pursuant to the Federal Bankruptcy Act or applicable State
law, but after crediting thereon receipts on account of the indebtedness
represented by their respective claims from all sources other than from such
dividends and from the funds and property so held in such special account. As
used in this paragraph, with respect to any claim, the term "dividends" shall
include any distribution with respect to such claim, in bankruptcy or
receivership or proceedings for reorganization pursuant to the Federal
Bankruptcy Act or applicable State law, whether such distribution is made in
cash, securities, or other property, but shall not include any such distribution
with respect to the
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secured portion, if any, of such claim. The court in which such bankruptcy,
receivership or proceedings for reorganization is pending shall have
jurisdiction (i) to apportion between the Trustee and the Securityholders and
the holders of other indenture securities in accordance with the provisions of
this paragraph, the funds and property held in such special account and proceeds
thereof, or (ii) in lieu of such apportionment, in whole or in part, to give to
the provisions of this paragraph due consideration in determining the fairness
of the distributions to be made to the Trustee and the Securityholders and the
holders of other indenture securities with respect to their respective claims,
in which event it shall not be necessary to liquidate or to appraise the value
of any securities or other property held in such special account or as security
for any such claim, or to make a specific allocation of such distributions as
between the secured and unsecured portions of such claims, or otherwise to apply
the provisions of this paragraph as a mathematical formula.
Any Trustee which has resigned or been removed after the beginning of such
3-month period shall be subject to the provisions of this Subsection as though
such resignation or removal had not occurred. If any Trustee has resigned or
been removed prior to the beginning of such 3-month period, it shall be subject
to the provisions of this Subsection if and only if the following conditions
exist:
(i) the receipt of property or reduction of claim, which would have
given rise to the obligation to account, if such Trustee had continued as
Trustee, occurred after the beginning of such 3-month period; and
(ii) such receipt of property or reduction of claim occurred within 3
months after such resignation or removal.
(b) There shall be excluded from the operation of Subsection (a) of
this Section a creditor relationship arising from
(1) the ownership or acquisition of securities issued under any
indenture, or any security or securities having a maturity of one year or
more at the time of acquisition by the Trustee;
(2) advances authorized by a receivership or bankruptcy court of
competent jurisdiction, or by this Indenture, for the purpose of preserving
any property which shall at any time be subject to the lien of this
Indenture or of discharging tax liens or other prior liens or encumbrances
thereon, if notice of such advances and of the circumstances surrounding
the making thereof is given to the Securityholders at the time and in the
manner provided in this Indenture;
(3) disbursements made in the ordinary course of business in the
capacity of trustee under an indenture, transfer agent, registrar,
custodian, paying agent, fiscal agent or depositary, or other similar
capacity;
(4) an indebtedness created as a result of services rendered or
premises rented; or an indebtedness created as a result of goods or
securities sold in a cash transaction as defined in Subsection (c) of this
Section;
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(5) the ownership of stock or of other securities of a
corporation organized under the provisions of Section 25(a) of the Federal
Reserve Act, as amended, which is directly or indirectly a creditor of the
Company; or
(6) the acquisition, ownership, acceptance or negotiation of any
drafts, bills of exchange, acceptances or obligations which fall within the
classification of self liquidating paper as defined in Subsection (c) of
this Section.
(c) For the purposes of this Section only:
(1) The term "default" means any failure to make payment in full
of the principal of or interest on any of the Securities or upon the other
indenture securities when and as such principal or interest becomes due and
payable.
(2) The term "other indenture securities" means securities upon
which the Company is an obligor outstanding under any other indenture (i)
under which the Trustee is also trustee, (ii) which contains provisions
substantially similar to the provisions of this Section, and (iii) under
which a default exists at the time of the apportionment of the funds and
property held in such special account.
(3) The term "cash transaction" means any transaction in which
full payment for goods or securities sold is made within 7 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.
(4) The term "self-liquidating paper" means any draft, bill of
exchange, acceptance or obligation which is made, drawn, negotiated or
incurred by the Company 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 arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation.
(5) The term "Company" means any obligor upon the Securities.
Section 614. Appointment of Authenticating Agent. At any time when any of
the Securities remain Outstanding the Trustee, with the approval of the Company,
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 306, 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
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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 an Authenticating Agent, having a combined capital and
surplus of not less than $50,000,000 and, if other than the Company itself,
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 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, if other than the Company, to the Company. The
Trustee may at any time terminate the agency of an Authenticating Agent by
giving written notice thereof to such Authenticating Agent and, if other than
the Company, to the Company. 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,
with the approval of the Company, may appoint a successor Authenticating Agent
which shall be acceptable to the Company 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.
The Trustee agrees to pay to each Authenticating Agent (other than an
Authenticating Agent appointed at the request of the Company from time to time)
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant to
this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
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This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Chase Bank of Texas, National Association,
as Trustee
By:
---------------------------------------
As Authenticating Agent
Date: By:
----------------------------- ---------------------------------------
Authorized Signatory
ARTICLE SEVEN
Securityholders' Lists and Reports by
Trustee and Company
Section 701. Company To Furnish Trustee Names and Addresses of
Securityholders. 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, in each year in such form as the Trustee may reasonably require, a list of
the names and addresses of the Holders of Securities of such series as of such
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,
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications to
Securityholders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Securities contained in the
most recent list furnished to the Trustee as provided in Section 701 and the
names and addresses of Holders of Securities received by the Trustee in its
capacity as Security Registrar. The Trustee may destroy any list furnished to it
as provided in Section 701 upon receipt of a new list so furnished.
(b) If 3 or more Holders of Securities of any series (hereinafter
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 of such
series for a period of at least 6 months preceding the date of such application,
and such application states that the applicants desire to communicate with other
Holders of Securities of such series or with the Holders of all Securities with
respect to their rights under this Indenture or under such Securities and is
accompanied by a
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copy of the form of proxy or other communication which such applicants propose
to transmit, then the Trustee shall, within 5 Business Days after the receipt of
such application, at its election, either
(i) afford such applicants access to the information preserved at
the time by the Trustee in accordance with Section 702(a), or
(ii) inform such applicants as to the approximate number of
Holders of Securities of such series or all Securities, as the case may be,
whose names and addresses appear in the information preserved at the time
by the Trustee in accordance with Section 702(a), and as to the approximate
cost of mailing to such Securityholders 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 of a Security of such series or to all Securityholders, as
the case may be, whose names and addresses appear in the information preserved
at the time by the Trustee in accordance with Section 702(a), a copy of the form
of proxy or other communication which is specified in such request, with
reasonable promptness after a tender to the Trustee of the material to be mailed
and of payment, or provision for the payment, of the reasonable expenses of
mailing, unless, within 5 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 interests of the Holders of
Securities of such series or all Securityholders, as the case may be, 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 Securityholders of such series or all Securityholders, as
the case may be, with reasonable promptness after the entry of such order and
the renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Holders of Securities in accordance with
Section 702(b), regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under Section 702(b).
Section 703. Reports by Trustee.
(a) The term "reporting date" as used in this Section means May 15 of
each year. Within 60 days after the reporting date in each year, beginning in
199__, the Trustee shall transmit by mail to all Securityholders, as their names
and addresses appear in the Security Register, a brief report dated as of such
reporting date with respect to any of the following events
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which may have occurred during the 12 months preceding the date of such report
(but if no such event has occurred within such period no report need be
transmitted):
(1) any change to its eligibility under Section 609 and its
qualifications under Section 608;
(2) the creation of or any material change to a relationship
specified in Section 310(b)(1) through Section 310(b)(10) of the Trust
Indenture Act;
(3) the character and amount of any advances (and if the Trustee
elects so to state, the circumstances surrounding the making thereof) made
by the Trustee (as such) which remain unpaid on the date of such report,
and for the reimbursement of which it claims or may claim a lien or charge,
prior to that of Securities of any series, on any property or funds held or
collected by it as Trustee, except that the Trustee shall not be required
(but may elect) to report such advances if such advances so remaining
unpaid aggregate not more than 1/2 of 1% of the principal amount of the
Securities of such series outstanding on the date of such report;
(4) any change to the amount, interest rate and maturity date of
all other indebtedness owing by the Company (or by any other obligor on the
Securities) to the Trustee in its individual capacity, on the date of such
report, with a brief description of any property held as collateral
security therefor, except an indebtedness based upon a creditor
relationship arising in a manner described in Section 613(b)(2), (3), (4)
or (6);
(5) any change to the property and funds, if any, physically in
the possession of the Trustee as such on the date of such report;
(6) any release, or release and substitution, of property subject
to the lien of this instrument (and the consideration therefor, if any)
which the Trustee had not previously reported;
(7) any additional issue of Securities which the Trustee has not
previously reported
(8) any action taken by the Trustee in the performance of its
duties hereunder which it has not previously reported and which in its
opinion materially affects the Securities, except action in respect of a
default, notice of which has been or is to be withheld by the Trustee in
accordance with Section 602.
(b) The Trustee shall transmit to all Securityholders, a brief report
with respect to the release, or release and substitution, of property subject to
the lien of this instrument, if any (and the consideration therefor, if any),
unless the fair value of such property is less than 10% of the principal amount
of Securities outstanding at the time of such release, or such release and
substitution, such report to be so transmitted within 90 days after such time;
and the character and amount of any advances (and if the Trustee elects so to
state, the circumstances surrounding the making thereof) made by the Trustee (as
such) since the date of the last report transmitted pursuant to Subsection (a)
of this Section (or if no such report has yet been so transmitted, since the
date of execution of this instrument) for the reimbursement of which it
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claims or may claim a lien or charge, prior to that of the Securities of any
series, on property or funds held or collected by it as Trustee, and which it
has not previously reported pursuant to this Subsection, except that the Trustee
shall not be required (but may elect) to report such advances if such advances
remaining unpaid at any time aggregate 10% or less of the principal amount of
the Securities Outstanding of such series at such time, such report to be
transmitted within 90 days after such time.
(c) Each such report pursuant to paragraphs (a) and (b) above shall be
transmitted by mail:
(1) To all registered Securityholders as their names and
addresses appear in the Security Register; and
(2) To such Securityholders as have, within the two years
preceding such report, filed their names and addresses with the Trustee for
such purpose.
(d) A copy of each such report shall, at the time of such transmission
to Securityholders, be filed by the Trustee with each stock exchange upon which
the Securities are listed, and also with the Commission.
Section 704. Reports by Company. The Company will
(1) 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
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it will 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 Securities Exchange Act of 1934 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;
(2) 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
(3) transmit by mail to all Securityholders, 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 paragraphs (1) and
(2) of this Section as may be required by rules and regulations prescribed
from time to time by the Commission.
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ARTICLE EIGHT
Consolidation, Merger, Conveyance or Transfer
Section 801. Company May Consolidate, etc., only on Certain Terms. The
Company shall not consolidate with or merge into any other corporation or convey
or transfer its properties and assets substantially as an entirety to any
Person, unless:
(1) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Company substantially as an entirety shall
be a corporation organized and existing under the laws of the United States
of America or any State or the District of Columbia, 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 premium, if any) and interest on all the
Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(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 happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
Section 802. Successor Corporation Substituted. Upon any consolidation or
merger, or any conveyance or transfer of the properties and assets of the
Company substantially as an entirety in accordance with Section 801, the
successor corporation formed by such consolidation or into which the Company is
merged or to which such conveyance or transfer 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 corporation had been
named as the Company herein. In the event of any such conveyance or transfer,
the Company as the predecessor corporation may be dissolved, wound up or
liquidated at any time thereafter.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without Consent of Securityholders.
Without the consent of the Holders of any Securities, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another corporation to the Company,
and the assumption by any such successor of the covenants of the Company
herein and in the Securities contained; or
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(2) to add to the covenants of the Company, or to surrender any right
or power herein conferred upon the Company, for the benefit of the Holders
of the Securities of any or all series (and if such covenants or the
surrender of such right or power are to be for the benefit of less than all
series of Securities, stating that such covenants are expressly being
included or such surrenders are expressly being made solely for the benefit
of one or more specified series); or
(3) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; or
(4) to add to this Indenture such provisions as may be expressly
permitted by the TIA, excluding, however, the provisions referred to in
Section 316(a)(2) of the TIA as in effect at the date as of which this
instrument was executed or any corresponding provision in any similar
federal statute hereafter enacted; or
(5) to establish any form of Security, as provided in Article Two, and
to provide for the issuance of any series of Securities as provided in
Article Three and to set forth the terms thereof, and/or to add to the
rights of the Holders of the Securities of any series; or
(6) to evidence and provide for the acceptance of appointment by
another corporation as a successor Trustee hereunder with respect to one or
more series of Securities 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 Section 611; or
(7) to add any additional Events of Default in respect of the
Securities of any or all series (and if such additional Events of Default
are to be in respect of less than all series of Securities, stating that
such Events of Default are expressly being included solely for the benefit
of one or more specified series); or
(8) to provide for the issuance of Securities in coupon as well as
fully registered form.
No supplemental indenture for the purposes identified in Clauses (2), (3),
(5) or (7) above may be entered into if to do so would adversely affect the
interest of the Holders of Securities of any series.
Section 902. Supplemental Indentures with Consent of Securityholders. With
the consent of the Holders of not less than a majority in principal amount of
the Outstanding Securities of each series affected by such supplemental
indenture or indentures, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of the Securities of each 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,
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(1) change the Maturity of the principal of, or the Stated Maturity of
any premium on, or any installment of interest on, any Security, or reduce
the principal amount thereof or the interest or any premium thereon, or
change the method of computing the amount of principal thereof or interest
thereon on any date or change any Place of Payment where, or the coin or
currency in which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Maturity or the Stated Maturity, as the case
may be, thereof (or, in the case of redemption or repayment, on or after
the Redemption Date or the Repayment Date, as the case may be); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences, provided for in this
Indenture; or
(3) modify any of the provisions of this Section or Section 513,
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.
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 Securityholders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and (subject to Section
601) shall be fully protected in relying upon, an Opinion of Counsel stating
that the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not (except to the extent required in
the case of a supplemental indenture entered into under Section 901(4) or
901(6)) 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 904. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby to the
extent provided therein.
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Section 905. Conformity with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the TIA as then in effect.
Section 906. Reference in Securities to Supplemental Indentures. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, 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.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest. With respect to
each series of Securities, the Company will duly and punctually pay the
principal of (and premium, if any) and interest on such Securities in New York,
New York in accordance with their terms and this Indenture, and will duly comply
with all the other terms, agreements and conditions contained in, or made in the
Indenture for the benefit of, the Securities of such series.
Section 1002. Maintenance of Office or Agency. The Company will maintain an
office or agency in New York, New York and each Place of Payment where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and of
any change in the location, of such office or agency. If at any time the Company
shall fail to maintain such 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 principal Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee its agent to receive all
such presentations, surrenders, notices and demands.
Section 1003. Money for Security Payments to be Held in Trust. If the
Company shall at any time act as its own Paying Agent for any series of
Securities, it will, on or before each due date of the principal of (and
premium, if any) or interest on, any of the Securities of such series, segregate
and hold in trust for the benefit of the Persons entitled thereto a sum
sufficient to pay the principal (and premium, if any) or 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
to act.
Whenever the Company shall have one or more Paying Agents for any series of
Securities, it will, on or prior to each due date of the principal of (and
premium, if any) or interest on, any Securities of such series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal (and premium, if any) 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.
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The Company will cause each Paying Agent other than the Trustee for any
series of Securities 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 principal of (and
premium, if any) or interest on Securities of such 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 such series) in the making of any such
payment of principal (and premium, if any) or interest on the Securities of
such 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 may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture with respect to any series of Securities 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 in
respect of each and every series of Securities as to which it seeks to discharge
this Indenture or, if for any other purpose, all sums so held in trust by the
Company in respect of all Securities, 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.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of (and premium, if any)
or interest on any Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease. The Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company mail to
the Holders of the Securities as to which the money to be repaid was held in
trust, as their names and addresses appear in the Security Register, a notice
that such moneys remain unclaimed and that, after a date specified in the
notice, which shall not be less than 30 days from the date on which the notice
was first mailed to the Holders of the Securities as to which the money to be
repaid was held in trust, any unclaimed balance of such moneys then remaining
will be paid to the Company free of the trust formerly impressed upon it.
The Company initially authorizes the Trustee to act as Paying Agent for the
Securities on its behalf. The Company may at any time and from time to time
authorize one or more Persons to act as Paying Agent in addition to or in place
of the Trustee with respect to any series of Securities issued under this
Indenture.
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Section 1004. Statement as to Compliance. The Company will deliver to the
Trustee, within 120 days after the end of each fiscal year, a written statement
signed by the principal executive officer, principal financial officer or
principal accounting officer of the Company, stating that
(1) a review of the activities of the Company during such year and of
the Company's performance under this Indenture and under the terms of the
Securities has been made under his supervision; and
(2) to the best of his knowledge, based on such review, the Company
has complied with all conditions and covenants under this Indenture through
such year, or, if there has been a default in the fulfillment of any such
obligation, specifying each such default known to him and the nature and
status thereof.
For purposes of this Section 1004, compliance shall be determined without regard
to any grace period or requirement of notice provided pursuant to the terms of
this Indenture.
Section 1005. Corporate Existence. Subject to Article Eight the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article. The Company may reserve the right
to redeem and pay before Stated Maturity all or any part of the Securities of
any series, either by optional redemption, sinking or purchase fund or analogous
obligation or otherwise, by provision therefor in the form of Security for such
series established and approved pursuant to Section 202 and on such terms as are
specified in such form or in the Board Resolution or indenture supplemental
hereto with respect to Securities of such series as provided in Section 301.
Redemption of Securities of any series shall be made in accordance with the
terms of such Securities and, to the extent that this Article does not conflict
with such terms, the succeeding Sections of this Article.
Section 1102. Election to Redeem; Notice to Trustee. The election of the
Company to redeem any Securities redeemable at the election of the Company shall
be evidenced by, or made pursuant to authority granted by, a Board Resolution.
In case of any redemption at the election of the Company of any Securities of
any series, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
of Securities of such series to be redeemed.
In the case of any redemption of Securities (i) prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, or (ii) pursuant to an election of the Company
which is subject to a condition specified in the terms of such Securities, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction or condition.
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Section 1103. Selection by Trustee of Securities to Be Redeemed. If less
than all the Securities of like tenor and terms of any series are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may include provision
for the selection for redemption of portions of the principal of Securities of
such series of a denomination larger than the minimum authorized denomination
for Securities of that series. Unless otherwise provided in the terms of a
particular series of Securities, the portions of the principal of Securities so
selected for partial redemption shall be equal to the minimum authorized
denomination of the Securities of such series, or an integral multiple thereof,
and the principal amount which remains outstanding shall not be less than the
minimum authorized denomination for Securities of such series. If less than all
the Securities of unlike tenor and terms of a series are to be redeemed, the
particular Securities to be redeemed shall be selected by the Company.
The Trustee shall promptly notify the Company in writing of the Securities
selected for redemption and, in the case of any Security selected for partial
redemption, the principal amount thereof to be redeemed.
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 Security redeemed or to be redeemed only in part, to the portion of
the principal of such Security which has been or is to be redeemed.
Section 1104. Notice of Redemption. Notice of redemption shall be given by
first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days
prior to the Redemption Date, to each holder of Securities to be redeemed, at
his address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification, including CUSIP numbers, (and, in the case of
partial redemption, the respective principal amounts) of the Securities to
be redeemed, from the Holder to whom the notice is given;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, and that interest, if any, thereon
shall cease to accrue from and after said date;
(5) the place where such Securities are to be surrendered for payment
of the Redemption Price, which shall be the office or agency of the Company
in the Place of Payment; and
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(6) that the redemption is on account of a sinking or purchase fund,
or other analogous obligation, if that be 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. Such notice shall be
deemed to have been given to each Holder if sent in accordance with Section 105
hereof.
Section 1105. Deposit of Redemption Price. On or prior to 10:00 a.m. of 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 1003) an amount of money sufficient to pay the
Redemption Price of all the Securities which are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date. Notice of Redemption
having been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified and from and after such date (unless the Company shall default in the
payment of the Redemption Price) such Securities shall cease to bear interest.
Upon surrender of such Securities for redemption in accordance with the notice,
such Securities shall be paid by the Company at the Redemption Price.
Installments of interest the Stated Maturity of which is on or prior to the
Redemption Date shall be payable to the Holders of such Securities registered as
such on the relevant Regular Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon surrender
thereof for redemption, the principal shall, until paid, bear interest from the
Redemption Date at the rate borne by the Security, or as otherwise provided in
such Security.
Section 1107. Securities Redeemed in Part. Any Security which is to be
redeemed only in part shall be surrendered at the office or agency of the
Company in the Place of Payment with respect to that series (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 Stated Maturity and of like tenor and terms, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
Section 1108. Provisions with Respect to any Sinking Funds. Unless the form
or terms of any series of Securities shall provide otherwise, in lieu of making
all or any part of any mandatory sinking fund payment with respect to such
series of Securities in cash, the Company may at its option (1) deliver to the
Trustee for cancellation any Securities of such series theretofore acquired by
the Company, or (2) receive credit for any Securities of such series (not
previously so credited) acquired by the Company and theretofore delivered to the
Trustee for cancellation or redeemed by the Company other than through the
mandatory sinking fund, and if it does so then (i) Securities so delivered or
credited shall be credited at the applicable sinking
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fund Redemption Price with respect to Securities of such series, and (ii) on or
before the 60th day next preceding each sinking fund Redemption Date with
respect to such series of Securities, the Company will deliver to the Trustee
(A) an Officers' Certificate specifying the portions of such sinking fund
payment to be satisfied by payment of cash and by delivery or credit of
Securities of such series acquired by the Company or so redeemed, and (B) such
Securities so acquired, to the extent not previously surrendered. Such Officers'
Certificate shall also state the basis for such credit and that the Securities
for which the Company elects to receive credit have not been previously so
credited and were not redeemed by the Company through operation of the mandatory
sinking fund, if any, provided with respect to such Securities and shall also
state that no Event of Default with respect to Securities of such series has
occurred and is continuing. All Securities so delivered to the Trustee shall be
canceled by the Trustee and no Securities shall be authenticated in lieu
thereof.
If the sinking fund payment or payments (mandatory or optional) with
respect to any series of Securities made in cash plus any unused balance of any
preceding sinking fund payments with respect to Securities of such series made
in cash shall exceed $50,000 (or a lesser sum if the Company shall so request),
unless otherwise provided by the terms of such series of Securities, that cash
shall be applied by the Trustee on the sinking fund Redemption Date with respect
to Securities of such series next following the date of such payment to the
redemption of Securities of such series at the applicable sinking fund
Redemption Price with respect to Securities of such series, together with
accrued interest, if any, to the date fixed for redemption, with the effect
provided in Section 1106. The Trustee shall select, in the manner provided in
Section 1103, for redemption on such sinking fund Redemption Date a sufficient
principal amount of Securities of such series to utilize that cash and shall
thereupon cause notice of redemption of the Securities of such series for the
sinking fund to be given in the manner provided in Section 1104 (and with the
effect provided in Section 1106) for the redemption of Securities in part at the
option of the Company. Any sinking fund moneys not so applied or allocated by
the Trustee to the redemption of Securities of such series shall be added to the
next cash sinking fund payment with respect to Securities of such series
received by the Trustee and, together with such payment, shall be applied in
accordance with the provisions of this Section 1108. Any and all sinking fund
moneys with respect to Securities of any series held by the Trustee at the
Maturity of Securities of such series, and not held for the payment or
redemption of particular Securities of such series, shall be applied by the
Trustee, together with other moneys, if necessary, to be deposited sufficient
for the purpose, to the payment of the principal of the Securities of such
series at Maturity.
On or before each sinking fund Redemption Date provided with respect to
Securities of any series, the Company shall pay to the Trustee in cash a sum
equal to all accrued interest, if any, to the date fixed for redemption on
Securities to be redeemed on such sinking fund Redemption Date pursuant to this
Section 1108.
ARTICLE TWELVE
Subordination
Section 1201. Agreement of Securityholders that Securities Subordinated to
Extent Provided. The Company, for itself, its successors and assigns, covenants
and agrees and each
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Holder of the Securities by his or her acceptance thereof likewise covenants and
agrees that the payment of the principal of, 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, to the prior payment in full of all
Senior Indebtedness. The provisions of this Article shall constitute a
continuing offer to all persons who, in reliance upon such provisions, become
holders of, or continue to hold, Senior Indebtedness, and such provisions are
made for the benefit of the holders of Senior Indebtedness, and such holders are
hereby made obligees hereunder the same as if their names were written herein as
such, and the and/or each of them may proceed to enforce such provisions.
Section 1202. Company Not to Make Payments With Respect to Securities in
Certain Circumstances.
(a) Upon the maturity of any Senior Indebtedness by lapse of time,
acceleration or otherwise, all principal thereof and premium, if any, and
interest thereon shall first be paid in full, or such payment duly provided for
in cash or in a manner satisfactory to the holder or holders of such Senior
Indebtedness, before any payment is made on account of the principal of or
premium, if any, or interest on the Securities or to acquire any of the
Securities or on account of any sinking fund (except sinking fund payments made
in Securities acquired by the Company before the maturity of such Senior
Indebtedness).
(b) Upon the happening of (i) an event of default with respect to any
Senior Indebtedness, as such event of default is defined therein or in the
instrument under which it is outstanding, permitting the holders to accelerate
the maturity thereof, or (ii) an event which, with the giving of notice, or
lapse of time, or both, would constitute such an event of default, then, unless
and until such event shall have been cured or waived or shall have ceased to
exist, no payment shall be made by the Company with respect to the principal of
or premium, if any, or interest on the Securities or to acquire any of the
Securities or on account of any sinking fund for the Securities (except sinking
fund payments made in Securities acquired by the Company before such default and
notice thereof).
(c) In the event that notwithstanding the provisions of this Section
1202 the Company shall make any payment to the Trustee on account of the
principal of or premium, if any, or interest on the Securities, or on account of
any sinking fund, or the Holders of the Securities shall receive any such
payment, after the happening of a default in payment of the principal of or
premium, if any, or interest on Senior Indebtedness, then, unless and until such
default or event of default shall have been cured or waived or shall have ceased
to exist, such payment (subject to the provisions of Section 1206) shall be held
by the Trustee or the Holders of the Securities, as the case may be, in trust
for the benefit of, and shall be paid forthwith over and delivered to, the
holders of Senior Indebtedness (pro rata as to each of such holders on the basis
of the respective amounts of Senior Indebtedness held by them) or their
representatives or the trustee under the indenture or other agreement (if any)
pursuant to which any instruments evidencing any Senior Indebtedness may have
been issued, as their respective interests may appear, for application to the
payment of all Senior Indebtedness remaining unpaid to the extent necessary to
pay all Senior Indebtedness in full in accordance with the terms of such Senior
Indebtedness, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Indebtedness. The Company shall give prompt written
notice to the Trustee of any
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default under any Senior Indebtedness or under any agreement pursuant to which
Senior Indebtedness may have been issued.
Section 1203. Securities Subordinated to Prior Payments of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization of the Company. Upon
any distribution of assets of the Company upon any dissolution, winding up,
liquidation or reorganization of the Company (whether in bankruptcy, insolvency
or receivership proceedings or upon an assignment for the benefit of creditors
or otherwise):
(a) the holders of all Senior Indebtedness shall first be entitled to
receive payment in full of the principal thereof, premium, if any, and interest
due thereon before the Holders of the Securities are entitled to receive any
payment on account of the principal of, premium, if any, or interest on the
Securities;
(b) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, to which the Holders of
the Securities or the Trustees would be entitled except for the provisions of
this Article Twelve, 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 other trustee or agent, directly to the
holders of Senior Indebtedness or their representative or representatives, or to
the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, to the extent
necessary to make payment in full of all Senior Indebtedness remaining unpaid,
after giving effect to any concurrent payment or distribution or provision
therefor to the holders of such Senior Indebtedness;
(c) in the event that notwithstanding the foregoing provisions of this
Section 1203, any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, shall be received by the
Trustee or the Holders of the Securities on account of principal, or premium, if
any, or interest on the Securities before all Senior Indebtedness is paid in
full, or effective provisions made for its payment, such payment or distribution
(subject to the provisions of Sections 1206 and 1207) shall be received and held
in trust for and shall be paid over to the holders of the Senior Indebtedness
remaining unpaid or unprovided for or their representative or representatives,
or to the trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued, for application
to the payment of such Senior Indebtedness until all such Senior Indebtedness
shall have been paid in full, after giving effect to any concurrent payment or
distribution or provision therefor to the holders of such Senior Indebtedness.
Section 1204. Securityholders to be Subrogated to Right of Holders of
Senior Indebtedness. Subject to the payment in full of all Senior Indebtedness,
the Holders of the Securities shall be subrogated to the rights of the holders
of Senior Indebtedness to receive payments or distributions of assets of the
Company applicable to the Senior Indebtedness until all amounts owing on the
Securities shall be paid in full, and for the purpose of such subrogation no
payments or distributions to the holders of the Senior Indebtedness by or on
behalf of the Company or by or on behalf of the Holders of the Securities by
virtue of this Article which otherwise would have been made to the Holders of
the Securities, be deemed to be payment by the Company to or on account of the
Senior Indebtedness, it being understood that the provisions
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of this Article Twelve are and are intended solely for the purpose of defining
the relative rights of the Holders of the Securities, on the one hand, and the
holders of the Senior Indebtedness, on the other hand.
Section 1205. Obligation of the Company Unconditional. Nothing contained in
this Article Twelve or elsewhere in this Indenture or in the Securities is
intended to or shall impair as between the Company and the Holders of the
Securities, the obligations of the Company, which is absolute and unconditional,
to pay to the Holders of the Securities the principal of, premium, if any, and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms, or is intended to or shall affect the relative
rights of the Holders of the Securities and creditors of the Company other than
the holders of the Senior Indebtedness, nor shall anything herein or therein
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article Twelve of the holders of Senior
Indebtedness in respect of cash, property or securities of the Company received
upon the exercise of any such remedy. Upon any distribution of assets of the
Company referred to in this Article Twelve, the Trustee, subject to the
provisions of Section 601, and the Holders of the Securities shall be entitled
to rely upon any order or decree made by any court of competent jurisdiction in
which such dissolution, winding up, liquidation or reorganization proceedings
are pending, or a certificate of the liquidating trustee or agent or other
person making any distribution to the Trustee or to the Holders of the
Securities, for the purpose of ascertaining the persons entitled to participate
in such distribution, the holders of the Senior Indebtedness 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 Twelve.
Section 1206. Trustee Entitled to Assume Payments Not Prohibited in Absence
of Notice. The Trustee shall not at any time be charged with knowledge of the
existence of any facts which would prohibit the making of any payment of monies
to or by the Trustee, unless and until a Responsible Officer of the Trustee
shall have received written notice thereof from the Company or from one or more
holders of Senior Indebtedness or from any trustee therefor; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 601, shall be entitled to assume conclusively that no such facts exist.
Section 1207. Application by Trustee of Monies Deposited With It. Anything
in this Indenture to the contrary notwithstanding, any deposit of monies by the
Company with the Trustee or any paying agent (whether or not in trust) for the
payment of the principal of or premium, if any, or interest on any Securities
shall be subject to the provisions of Sections 1201, 1202, 1203 and 1204 except
that, if prior to the date on which by the terms of this Indenture any such
monies may become payable for any purpose (including, without limitation, the
payment of either the principal of or interest or premium, if any, on any
Security) a Responsible Officer of the Trustee shall not have received with
respect to such monies the notice provided for in Section 1206, then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such monies and to apply the same to the purpose
for which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such date.
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Section 1208. Subordination Rights Not Impaired by Acts or Omissions of
Company or Holders of Senior Indebtedness. No right of any present or future
holders of any Senior Indebtedness to enforce subordination as herein provided
shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith,
by any such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge thereof
which any such holder may have or be otherwise charged with.
Section 1209. Securityholders Authorize Trustee to Effectuate Subordination
of Securities. Each Holder of the Securities by his or her acceptance thereof
authorizes and expressly directs the Trustee on his or her behalf to take such
action as may be necessary or appropriate to effectuate the subordination
provided in this Article Twelve and appoints the Trustee his/her
attorney-in-fact for such purpose, including, in the event of any dissolution,
winding up, liquidation or reorganization of the Company (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit of
creditors or otherwise) tending towards liquidation of the business and assets
of the Company, the immediate filing of a claim for the unpaid balance of its or
his or her Securities in the form required in said proceedings and cause said
claim to be approved. If the trustee does not file a proper claim or proof of
debt in the form required in such proceeding prior to 30 days before the
expiration of the time to file such claim or claims, then the holder or holders
of the Senior Indebtedness are hereby authorized to and have the right to file
an appropriate claim for and on behalf of the holders of said Securities.
Section 1210. Right of Trustee to Hold Senior Indebtedness. The Trustee
shall be entitled to all of the rights set forth in this Article Twelve in
respect of any Senior Indebtedness at any time held by it to the same extent as
any other holder of Senior Indebtedness, and nothing in Section 613 or elsewhere
in this Indenture shall be construed to deprive the Trustee of any of its rights
as such holder.
Section 1211. Article Twelve Not to Prevent Events of Default. The failure
to make a payment on account of principal, interest or sinking fund by reason of
any provision of this Article Twelve shall not be construed as preventing the
occurrence of an Event of Default under Section 501.
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<PAGE>
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.
EEX CORPORATION,
By:
--------------------------
Name:
------------------------
Title:
-----------------------
CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION,
as Trustee
By:
--------------------------
Name:
------------------------
Title:
-----------------------
61
EXHIBIT 4.6
EEX CORPORATION
AND
-----------------------,
Warrant Agent
-----------------
WARRANT AGREEMENT
-----------------
Providing for the Issuance of
% [Notes/Debentures] due Purchase Warrants
Dated as of ____________, 1998
<PAGE>
WARRANT AGREEMENT
THIS WARRANT AGREEMENT is entered into as of ____________, 1998 between EEX
Corporation, a corporation incorporated under the laws of Texas (the "Company")
and _____________________, a ________ incorporated under the laws of
____________ (the "Agent").
W I T N E S S E T H:
WHEREAS, the Company proposes to issue ____ Warrants (as hereinafter
defined), each Warrant entitling the registered owner thereof to purchase ___%
[Notes/Debentures] due ______ (as hereinafter defined) of the Company at the
price and upon the terms and conditions herein set forth; and
WHEREAS, the Company is duly authorized to issue the Warrants as herein
provided; and
WHEREAS, all things necessary have been done and performed to make the
Warrants when duly authenticated by the Agent and issued as in this Agreement
provided legal and valid and binding upon the Company with the benefits and
subject to the terms of this Agreement.
NOW THEREFORE THIS AGREEMENT WITNESSETH that for good and valuable
consideration mutually given and received, the receipt and sufficiency whereof
is hereby acknowledged, it is hereby agreed and declared as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. Except as otherwise expressly provided or unless
the context otherwise requires, the terms defined in this Section 1.1 shall for
all purposes of this Agreement, have the meanings herein specified, the
following definitions to be equally applicable to both the singular and plural
forms of any of the terms herein defined:
"Agent" shall mean _____________, a _________ incorporated under the laws
of ____________ or its lawful successors from time to time appointed in
accordance with this Agreement.
"Agreement" shall mean this Warrant Agreement between the Company and the
Agent, as such agreement is originally executed or as it may from time to time
be supplemented, modified or amended as provided herein.
"Business Day" shall mean any day which is not a Saturday or Sunday or
which in the City of Dallas, Texas or in The City of New York, New York or
____________ is neither a legal holiday nor a day on which banking institutions
are authorized by law or regulation to close.
<PAGE>
"Company" shall mean EEX Corporation, a Texas corporation, until a
successor entity shall have become such pursuant to the applicable provisions of
this Agreement and thereafter the term "Company" shall mean such successor
entity.
"Event of Default" shall mean any event specified as such in Section 6.1
hereof. An Event of Default shall "exist" if an Event of Default shall have
occurred and be continuing.
"Exercise Date" shall mean each date during the Exercise Period on which
[Notes/Debentures] are purchased by a Registered Owner through the exercise of
all or a portion of its Warrants.
"Exercise Form" shall mean the form designated Exercise Form attached as
Annex II to each Warrant.
"Exercise Period" shall mean the period commencing at 9:00 a.m. (time) on
_____________, ____ and ending at 4:00 p.m. (___________ time) on _____________,
_____.
"Exercise Price" shall have the meaning accorded such term in Section 2.1
of this Agreement.
"Indenture" shall mean that certain Indenture dated as of ___________, ____
between the Company and ___________, as trustee, as such Indenture was
originally executed or as it may from time to time be supplemented, modified or
amended in accordance with the terms thereof.
"[Notes/Debentures]" means any or all, as the case may be, of the Company's
___% [Notes/Debentures] due ___________, authenticated and delivered as provided
in the Indenture.
"Notice of Intent to Exercise" shall have the meaning accorded thereto in
Section 4.1 of this Agreement. The form of Notice of Intent to Exercise is
attached as Annex I to each Warrant.
"Outstanding" when used with reference to the Warrants shall mean, as of
the date of determination, all Warrants theretofore authenticated and delivered
under this Agreement, except:
(a) Warrants theretofore canceled by the Agent or delivered to the
Agent for cancelation and
(b) Warrants in exchange for or in lieu of which other Warrants shall
have been authenticated and delivered under this Agreement.
"Person" shall mean an individual, a corporation, a partnership, a joint
venture, an association, a joint stock company, a trust, an unincorporated
organization, or a government or any agency, authority or political subdivision
thereof.
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<PAGE>
"Register" shall mean the books for the registration and transfer of
Warrants which books are kept by the Agent pursuant to Section 3.1 hereof.
"Time of Expiry" means 4:00 p.m., _________ time, on ____________, 19___.
"Warrantholders" or "Registered Owners" means the persons from time to time
who are Registered Owners of the Warrants.
"Warrantholders' Request" means an instrument signed in one or more
counterparts by the Warrantholders entitled to purchase in the aggregate not
less than a majority of the aggregate principal amount of [Notes/Debentures]
which could be purchased pursuant to all Warrants then Outstanding requesting
the Agent to take some action or proceeding specified therein.
"Warrants" means the ___% [Notes/ Debentures] due 200__ Purchase Warrants
issued hereunder pursuant to which Warrantholders have the right to purchase
[Notes/Debentures] on the terms and conditions herein set forth.
"Written Order of the Company" and "Written Consent of the Company" mean,
respectively, a written order or consent signed in the name of the Company by
any one of its officers and may consist of one or more instruments so executed.
ARTICLE II
ISSUANCE OF WARRANTS
Section 2.1. Issuance and Terms of Warrants. The issuance of Warrants
entitling the Registered Owners thereof to purchase up to an aggregate of not
more than [U.S. $/Specified Currency]_______ in principal amount of the
[Notes/Debentures] is hereby authorized. The Warrants are hereby designated as
the "[Notes/Debentures] due ______ Purchase Warrants." The Warrants shall be
delivered by the Company to the Agent to be authenticated by the Agent and
delivered in accordance with the Written Order of the Company. The Warrants
shall be dated _____________, 19__ and shall be issuable in fully registered
form and in denominations that permit upon exercise the purchase of [U.S.
$/Specified Currency]_______ principal amount of [Notes/Debentures] and any
integral multiples thereof.
The Warrants shall be exercisable on any Business Day during the Exercise
Period. Each Warrant in the denomination of [U.S. $/Specified Currency] shall
entitle the Registered Owner thereof to exercise such Warrant in accordance with
and pursuant to the terms thereof for the purchase of a [Note/Debenture] in the
principal amount of [U.S. $/Specified Currency] at a purchase price equal to par
plus interest which would have accrued thereon if the [Note/Debenture] had been
issued on _______________, _______, to but not including, the Exercise Date (the
"Exercise Price").
Section 2.2. Form of Warrants. The Warrants shall be in substantially the
form set out in this Section 2.2, with such additional provisions, omissions,
variations or substitutions as are not
3
<PAGE>
inconsistent with the provisions of this Agreement. The Warrants may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistent herewith, be determined by the
officer executing such Warrants as evidenced by such officer's execution
thereof.
FORM OF WARRANT
Number R-W-___ _____ Warrant(s) Representing Right to Purchase Up to [U.S.
$/Specified Currency] ________ in Aggregate Principal Amount of ___%
[Notes/Debentures] due .
This Warrant expires at 4:00 p.m. (_______ time) on [________, _________]
and thereafter will be void and of no value. Notice of the holder's intent to
exercise this Warrant must be given to ________________, as Agent not later than
4:00 p.m. (________ time) [____________, _____].
EEX CORPORATION
[NOTE/DEBENTURE] PURCHASE WARRANT
THIS CERTIFIES THAT, for value received, ____________, the Registered Owner
hereof (herein sometimes called the "Warrantholder") is entitled, upon and
subject to the terms and conditions set forth herein and in the Warrant
Agreement (the "Warrant Agreement") dated as of ___________, ____, ____ between
EEX Corporation (the "Company") and ______________, as Agent, (the "Agent"), to
purchase at any time from 9:00 a.m. (___________ time) [____________, _____] to
4:00 p.m. (________ time) [________________, _____], inclusive (each such date
being referred to as an "Exercise Date") up to [U.S. $/Specified Currency]
___________ in aggregate principal amount of ___% [Notes/Debentures] due _______
(the "[Notes/Debentures]") of the Company, at a purchase price equal to par plus
interest which would have accrued thereon if the [Notes/Debentures] had been
issued on _______, ____, by providing written notice to the Agent of the
Warrantholder's intention to exercise its right to purchase provided for herein
specifying the number of Warrants which the Warrantholder wishes to exercise,
such notice to be provided in the notice form annexed hereto as Annex II not
earlier than 9:00 a.m. (________ time)on [_________________, ____] and not later
than 4:00 p.m. (___________ time) [____________, ___], and by surrendering to
the Agent at its principal office in _____________, ___________ on any Exercise
Date, this Warrant, with the Exercise Form on which this Warrant is exercised,
the [Notes/Debentures] will be delivered as described below against payment
therefor in [U.S. Federal Reserve or other United States/Specified Currency]
funds current and immediately available to the Agent at the amount designated in
the Warrant Agreement, in each case in an amount equal to the purchase price of
the [Notes/Debentures] so purchased pursuant to the exercise of this Warrant.
This Warrant is one of a duly authorized issue of warrants issued under the
provisions of the Warrant Agreement. Reference is hereby made for particulars of
the rights of the Warrantholders and of the Company in respect thereof and the
terms and conditions upon which the Warrants are issued and held, all to the
sole effect as if the provisions of the Warrant
4
<PAGE>
Agreement were herein set forth, to all of which the Warrantholder by acceptance
hereof assents. The Company will furnish to the Warrantholder, upon written
request and without charge, a copy of the Warrant Agreement. All capitalized
terms not otherwise defined herein, shall have the meanings ascribed thereto in
the Warrant Agreement.
The [Notes/Debentures] purchased pursuant to the exercise of this Warrant
will be mailed by certified mail return receipt requested to the person
specified in the Exercise Form annexed hereto at its address specified therein
or, if so specified in the Exercise Form, delivered to such person or its agent
at the principal office of the Agent in ______________ on the Exercise Date. If
[Notes/ Debentures] are purchased in an aggregate principal amount which is less
than the total principal amount of the [Note/Debentures] that can be purchased
pursuant to this Warrant, the Warrantholder hereof will be entitled to receive
without charge a new Warrant in respect of the balance of the principal amounts
of [Notes/Debentures] which the Registered Owner hereof was entitled to purchase
under the surrendered Warrant and which were not then purchased.
On presentation at the principal office of the Agent in ______________
subject to the provisions of the Warrant Agreement, one or more Warrants may be
exchanged for one or more Warrants entitling the Warrantholder to purchase an
equal aggregate principal amount of [Notes/Debentures] as may be purchased under
the Warrant or Warrants so exchanged. Nothing contained in this Warrant, the
Warrant Agreement or elsewhere shall be construed as conferring upon the
Warrantholder hereof any right or interest whatsoever as an owner of
[Notes/Debentures] or any other right or interest in respect thereof except as
herein and in the Warrant Agreement expressly provided.
This Warrant is registered on the books of the Company and is transferable
only in accordance with the provisions of the Warrant Agreement by surrender
thereof at the principal office of the Agent duly endorsed or accompanied by a
written instrument of transfer duly executed by the Registered Owner of this
Warrant or its attorney duly authorized in writing all in accordance with the
terms and provisions of the Warrant Agreement.
This Warrant and the Warrant Agreement are governed by and construed in
accordance with the laws of [New York], without regard to the conflicts of law
principles thereof.
IN WITNESS WHEREOF the Company has caused this Warrant to be duly executed
as of _________________, ___.
EEX CORPORATION
By:
5
<PAGE>
Certificate of Authentication
This is one of the Warrants described
in the within-mentioned Warrant Agreement
______________________, as Agent
By
Authorized Officer
6
<PAGE>
ANNEX I - NOTICE OF INTENT TO EXERCISE
TO:
The undersigned Warrantholder of _____ Warrants evidenced by Warrant Number
(the "Warrant") hereby notifies you pursuant to Section 4.1 of the Warrant
Agreement dated as of _______________, _____ (the "Warrant Agreement") between
EEX Corporation (the "Company") and, __________ as Agent (the "Agent"), of the
undersigned's intention to exercise _______ of such Warrants on ____________,
____ (the "Exercise Date") to purchase [U.S. $/Specified Currency]
________________ in aggregate principal amount of the Company's ___%
[Notes/Debentures] due __________________ (the "[Notes/Debentures]") at a
purchase price equal to par plus interest which would have accrued thereon if
the [Note/Debenture] had been issued on [___________, _____]. The purchase price
shall be a total of [U.S. $/Specified Currency] __________ representing [U.S.
$/Specified Currency] _______ in principal and [U.S. $/Specified Currency] in
accrued interest.
The Warrant with the Exercise Form duly completed shall be delivered to the
Agent at its principal office in ________________, ________. Payment of the
purchase price of the [Notes/Debentures] shall be made in [U.S. Federal Reserve
or other United States/Specified Currency funds] immediately available at the
principal office of the Agent on the Exercise Date. The undersigned shall direct
such [Notes/Debentures] be registered and delivered in the name(s) and the
amount(s) set forth opposite the undersigned's name on Annex II to the Warrant.
DATED this _____ day of ____________, ____.
[NAME OF WARRANTHOLDER]
By
7
<PAGE>
ANNEX II - EXERCISE FORM
TO:
The undersigned Warrantholder of ______ Warrants evidenced by the Warrant
attached hereto hereby exercises on _____________, ____ (the "Exercise Date")
Warrants to purchase [U.S. $/Specified Currency] _______ in aggregate principal
amount of EEX Corporation's ___% [Notes/Debentures] due ____________ (the
"[Notes/ Debentures]") at a purchase price equal to par plus $______ in accrued
interest on the [Notes/Debentures] from [_________________, ___], and agrees to
transfer on the Exercise Date in [U.S. $/Specified Currency] funds immediately
available to the Agent (at [account]) such purchase price of the
[Notes/Debentures] all in accordance with the terms and conditions of the
Warrant Agreement dated as of ____________, ____ (the "Warrant Agreement")
between EEX Corporation and [____________________], as Agent. The undersigned
hereby irrevocably directs that such [Notes/Debentures] be registered and
delivered in accordance with the directions set forth herein.
The undersigned acknowledges that all taxes or other governmental charges
payable upon the registration and delivery of such [Notes/Debentures] (other
than in connection with each original issue and sale of the [Notes/Debentures]),
including any transfer taxes payable if the [Notes/Debentures] are to be
registered in the name of a person or persons other than the undersigned
Warrantholder, must be paid by the undersigned.
DATED this _________ day of _____________, ___.
By:________________________
[ ] Please check box if [Notes/Debentures] are to be delivered at the offices
of _______________ on the Exercise Date, failing which the
[Notes/Debentures] will be mailed by certified mail return receipt
requested.
Unless the foregoing box is checked, the [Notes/Debentures] shall be delivered
to the Warrantholder at its address set forth in the Register.
8
<PAGE>
Section 2.3. Warrants Mutilated, Lost, Destroyed or Stolen Warrants. If (i)
any mutilated Warrant is surrendered to the Agent, or the Company and the Agent
receive evidence to their satisfaction of the destruction, loss or theft of any
Warrant and (ii) there is delivered to the Company and the Agent such security
or indemnity as may be required by them to save each of them harmless, then, in
the absence of notice to the Company or the Agent that such Warrant has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Agent shall authenticate and deliver, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Warrant, a new Warrant of the same
principal amount, bearing a number not contemporaneously Outstanding.
Upon the issuance of any new Warrant under this Section 2.3, 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 connected therewith.
Every new Warrant issued pursuant to this Section 2.3 in lieu of any
destroyed, lost or stolen Warrant shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Warrant shall be at any time enforceable by anyone, and shall be entitled
to all the security and benefits of this Agreement equally and ratably with all
other Outstanding Warrants.
The provisions of this Section 2.3 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 Warrants.
Section 2.4. Warrantholder not a Registered Owner of the
[Notes/Debentures]. The ownership of a Warrant shall not constitute the
Registered Owner thereof an owner of any of the [Notes/Debentures] nor entitle
the Registered Owner to any right or interest in respect thereof except upon the
exercise and surrender of its Warrants and the payment of the purchase price of
the [Notes/Debentures] in accordance with and pursuant to the terms herein
provided.
Section 2.5. Warrants to Rank Pari Passu. All Warrants shall rank pari
passu with each other.
Section 2.6. Execution of Warrants. The Warrants shall be signed in the
name and on behalf of the Company by one of its officers. The signature of the
officer executing the Warrants may be manual or facsimile. In case any officer
of the Company who shall have signed any of the Warrants (manually or in
facsimile) shall cease to be such officer before the Warrants so signed shall
have been authenticated and delivered by the Agent, such Warrants nevertheless
may be authenticated and delivered as though the Person who signed such Warrants
had not ceased to be such officer of the Company. Also, any Warrant may be
signed on behalf of the Company by such Persons as on the actual date of
execution of such Warrant shall be the proper officers of the Company, although
at the date of the execution of this Agreement any such Person was not such
officer.
9
<PAGE>
Only such of the Warrants as shall bear thereon a certificate of
authentication in substantially the form set forth in Section 2.2 hereof,
executed by the Agent, shall be entitled to the benefits of this Agreement or be
valid or obligatory for any purpose.
Section 2.7. Purchase of Warrants by the Company. The Company may purchase
in the market, by private contracts or otherwise all or any portion of the
Warrants on such terms as the Company may determine.
ARTICLE III
EXCHANGE OF WARRANTS; REGISTRATION OF
TRANSFER OF WARRANTS; NOTICE TO WARRANTHOLDERS
Section 3.1. Register. The Agent, as agent of the Company, shall maintain,
at its principal office in ____________, ____, the Register in which, subject to
such reasonable regulations as it and the Company may prescribe, it shall
provide for the registration of the Warrants and the transfer of Warrants as in
this Agreement provided. The Register shall be in written form or in any other
form capable of being converted into written form within a reasonable time. The
Registered Owners of the Warrants shall present directly to the Agent all
requests for (a) registration of transfer of Warrants, (b) exchange of Warrants
for new Warrants in authorized denominations and (c) replacement of Warrants in
the case of mutilation, destruction, loss or theft.
Upon the Company's request, the Agent shall furnish the Company with a list
of names and addresses of the Registered Owners showing the number of such
Warrants held by each Registered Owner.
Section 3.2. Exchange of Warrants. Warrants entitling the Registered Owner
to purchase any specified principal amount of [Notes/Debentures] may, upon
compliance with the reasonable requirements of the Agent, be exchanged for
Warrants entitling the Registered Owner thereof to purchase an equal aggregate
principal amount of [Notes/ Debentures].
Warrants may be exchanged only at the principal office of the Agent in
_______________, ___ or at any other place that is designated by the Company.
Any Warrants tendered for exchange shall be surrendered to the Agent and
canceled. The Company shall execute all Warrants necessary to carry out
exchanges as aforesaid and such Warrants shall be authenticated by the Agent.
Section 3.3. Charges for Exchange. For each Warrant exchanged or
transferred, the Agent, except as otherwise herein provided, shall, if required
by the Company, charge a reasonable sum for each new Warrant issued; and payment
of such charges and reimbursement of the Agent or the Company for any taxes or
governmental or other charges required to be paid shall be made by the party
requesting such exchange, as a condition precedent thereto.
Section 3.4. Registration of Transfer; Restrictions on Transfers. No
transfer of a Warrant shall be valid unless made at the principal offices of the
Agent in the ____________,
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<PAGE>
__________ or at any other place that is designated by the Company as an office
for registration of transfer by the Registered Owner or such Registered Owner's
executors, administrators or other legal representatives or attorney duly
appointed by an instrument in writing in form and execution satisfactory to the
Agent and upon compliance with such reasonable requirements as the Agent and the
Company may prescribe. Any Warrants tendered for registration of transfer shall
be surrendered to the Agent.
Section 3.5. Notice to Warrantholders. Unless herein otherwise expressly
provided, any notice to be given hereunder to Warrantholders shall be deemed to
be validly given if such notice is mailed to the last addresses of the
Warrantholders appearing on the Register. Any notice so given shall be deemed to
have been given on the day on which it has been mailed. In determining under any
provision hereof the date when notice of any meeting or other event must be
given, the date of giving notice shall be included and the date of the meeting
or other event shall be excluded.
ARTICLE IV
EXERCISE OF WARRANTS
Section 4.1. Method of Exercise of Warrants. The Registered Owner of any
Warrant may exercise the right thereby to purchase [Notes/Debentures] by
surrendering to the Agent on any Business Day during the Exercise Period at the
principal office of the Agent ___________, ___________, or at any other place or
places that may be designated by the Company:
(a) at least 3 Business Days prior to the exercise of its Warrants, a
completed and executed Notice of Intent to Exercise in the form thereof set
forth in Annex I to each Warrant (a "Notice of Intent to Exercise");
(b) on the Exercise Date, a duly completed and executed Exercise Form
in the form thereof set forth in Annex II to each Warrant;
(c) on the Exercise Date, its Warrant or Warrants which it is
exercising; and
(d) on the Exercise Date, the Exercise Price in funds immediately
available to the Company.
The items described in the foregoing clauses (a) and (b) shall be deemed
received when an actual copy or a facsimile thereof is received by the Agent.
Each Warrant shall be deemed to be surrendered only upon personal delivery
thereof to or, if sent by mail or other means of transmission, upon receipt
thereof by, the Agent at the office specified in this Section 4.1. Each Warrant
shall be deemed exercised as of the first Business Day on which all of the
foregoing conditions are satisfied with respect to such Warrant. The first day
on which the Warrants may be exercised is ________________, ____________, ___.
The Company acknowledges that the Registered Owners of the Warrants are not
required under any circumstances to take any other actions in order to exercise
their Warrants.
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<PAGE>
Section 4.2. Effect of Exercise of Warrants. Upon surrender and payment of
the Exercise Price by the Registered Owner of any Warrant in accordance with
Section 4.1, the [Notes/Debentures] so purchased shall be deemed to have been
issued and the person or persons to whom such [Notes/Debentures] are to be
issued shall be deemed to have become the Registered Owner or owners of such
[Notes/ Debentures] on the Exercise Date.
After the due exercise of a Warrant as aforesaid, the Company shall
forthwith cause to be delivered to the person to whom the [Notes/Debentures] so
purchased are to be issued at the address specified in such form or, if so
specified in such purchase form, cause to be delivered to such person at the
office where such Warrant was surrendered, a [Note/Debenture] or
[Notes/Debentures] in the form or forms and in the denominations requested and
for the appropriate principal amount of [Notes/Debentures] not exceeding the
principal amount which the Warrantholder is entitled to purchase pursuant to the
Warrant surrendered.
Section 4.3. Partial Exercise of Warrants. Subject to the issuance of
[Notes/Debentures] in authorized denominations only, the Registered Owner of any
Warrant may purchase (Notes/Debentures] in a principal amount less than that
which such Registered Owner is entitled to purchase pursuant to the surrendered
Warrant, but not less than $1,000 principal amount. In the event of any purchase
of a principal amount of [Notes/Debentures] less than the principal amount which
can be purchased pursuant to a Warrant, the Registered Owner thereof upon
exercise thereof prior to the Time of Expiry shall, in addition, be entitled to
receive forthwith a new Warrant in respect of the balance of the principal
amount of [Notes/Debentures] which such Registered Owner was entitled to
purchase pursuant to the surrendered Warrant and which were not then exercised.
The Company shall not be responsible for any taxes which may be payable in
connection with the issuance of such new Warrant.
Section 4.4. Expiration of Warrants. After the Time of Expiry, all rights
under any Warrant in respect of which the right of purchase herein and therein
provided for shall not theretofore have been exercised pursuant to Section 4.1
shall cease and terminate and such Warrant shall become void and of no effect
and all rights of the Registered Owner thereof under this Warrant Agreement
shall cease and terminate as of such termination; provided that such Registered
Owner's rights under this Warrant Agreement with respect to actions occurring
prior to such termination shall remain in full force. After the Time of Expiry,
each Registered Owner of any Warrants shall return any unexercised Warrants to
the Agent for cancelation in accordance with Section 4.5 of this Agreement.
Section 4.5. Cancellation of Surrendered Warrants. All Warrants surrendered
to the Agent pursuant to Sections 2.3, 3.2, 3.4 or 4.1 shall forthwith be
canceled by the Agent. All Warrants canceled or required to be canceled under
this or any other provision of this Agreement may be destroyed by or under the
direction of the Agent and the Agent shall furnish the Company with a
destruction certificate identifying the Warrants so destroyed and the principal
amount of [Notes/Debentures] which could have been purchased pursuant to each.
Section 4.6. Accounting and Recording. The Agent shall forthwith account
and remit to the Company with respect to Warrants exercised and immediately
forward to the Company (or into an account or accounts of the Company with the
bank or trust company designated by the
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<PAGE>
Company for that purpose) all monies received by the Agent on the purchase of
[Notes/Debentures] through the exercise of Warrants. All such monies, and any
[Notes/Debentures] or other instruments, from time to time received by the Agent
shall be received in trust for, and shall be segregated and kept apart by the
Agent in trust for, the Company.
The Agent shall record the particulars of the Warrants exercised which
shall include the names and addresses of the persons who become Registered
Owners of [Notes/Debentures] on exercise, the Exercise Date, the Exercise Price
and the number of [Notes/Debentures] reserved for that purpose by the Company.
The Agent shall provide such particulars in writing to the Company.
ARTICLE V
COVENANTS
Section 5.1. Issuance of [Notes/Debentures]. The Company covenants that so
long as any Warrants remain Outstanding it will cause the [Notes/Debentures]
from time to time paid for pursuant to the Warrants in the manner herein
provided to be duly issued and delivered in accordance with the Warrants and the
terms hereof.
Section 5.2. Corporate Existence of the Company; Consolidation, Merger,
Sale or Transfer. The Company covenants that so long as any of the Warrants are
Outstanding, it will maintain its existence, will not dissolve, sell or
otherwise dispose of all or substantially all of its assets and will not
consolidate with or merge into another entity or permit one or more other
entities to consolidate with or merge into it; provided that the Company may,
without violating the covenants in this Section 5.2 contained, consolidate with
or merge into another entity or permit one or more other entities to consolidate
with or merge into it, or sell or otherwise transfer to another entity all or
substantially all of its assets as an entirety and thereafter dissolve, if the
surviving , resulting or transferee entity, as the case may be, (i) shall be
formed and existing under the laws of one of the States of the United States of
America, (ii) assumes, if such entity is not the Company, all of the obligations
of the Company hereunder and (iii) is not, after such transaction, otherwise in
default under any provisions hereof.
Section 5.3. Maintenance of Offices or Agencies for Transfer, Registration,
Exchange of Warrants. So long as any of the Warrants shall remain Outstanding,
the Company covenants that it will maintain an office or agency in
__________________, where the Warrants may be presented for registration,
exchange and transfer as in this Agreement provided, and where notices and
demands to or upon the Company in respect of the Warrants or of this Agreement
may be served, and where the Warrants may be presented for exchange for
[Notes/Debentures] as provided herein.
Section 5.4. Appointment to Fill a Vacancy in the Office of Agent. The
Company, whenever necessary to void or fill a vacancy in the office of Agent,
covenants that it will appoint, in the manner provided in Section 9.4 hereof, an
Agent, so that there shall at all times be a Agent with respect to the
Outstanding Warrants.
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ARTICLE VI
EVENTS OF DEFAULT; REMEDIES
Section 6.1. Events of Default. The term "Event of Default" whenever used
herein with respect to any Warrant shall mean any one of the following events:
(a) Failure by the Company to deliver the [Notes/Debentures] in
exchange for the Warrants in accordance with the provisions of this
Agreement or
(b) failure on the part of the Company to observe or perform in any
material respect any of the covenants or agreements on its part in the
Warrants or in this Agreement specifically contained for the benefit of the
Warrantholders, for a period of 90 days after there has been given, by
registered or certified mail, to the Company by the Agent, or to the
Company and the Agent by the Registered Owners of not less than 25%
(measured in terms of the principal amount of [Notes/Debentures] which can
be purchased pursuant thereto) of the Warrants at the time Outstanding
under this Agreement a written notice specifying such failure and stating
that such is a "Notice of Default" hereunder.
Section 6.2. Suits by Warrantholders. All or any of the rights conferred
upon the Registered Owner of any Warrant by the terms of such Warrant and/or
this Agreement may be enforced by the Registered Owner of such Warrants by
appropriate legal proceedings but without prejudice to the right which is hereby
conferred upon the Agent to proceed in its own name to enforce each and all of
the provisions herein contained for the benefit of the Registered Owners of the
Warrants from time to time Outstanding.
Section 6.3. Remedies not Waived; Enforcement Expense. No delay or failure
on the part of the Registered Owners of Warrants or the Agent to exercise any
right shall operate as a waiver of such right or otherwise prejudice such
Registered Owner's or Agent's, as the case may be, rights, powers and remedies.
The Company agrees to pay all costs, expenses and fees, including all reasonable
attorneys' fees, which may be incurred by a Registered Owner in enforcing or
attempting to enforce its rights thereunder and hereunder following the
occurrence and during the continuance of any Event of Default hereunder, whether
the same shall be enforced by suit or otherwise.
Section 6.4. Incorporators, Stockholders, Officers and Directors of Company
and Exempt Form Individual Liability. No recourse under or upon any obligation,
covenant or agreement of this Agreement, or of any Warrant, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, stockholder, officer or director, as such, past, present or
future, of the Company, either directly or though the Company, 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 this
Agreement and the Warrants issued hereunder are solely corporate obligations,
and that no personal liability whatever shall attach to, or is or shall be
incurred by, the incorporators, stockholders, officers or directors, as such, of
the
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Company because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in this
Agreement or in any of the Warrants or implied therefrom; and that any and all
such personal liability of every name and nature, either at common law or in
equity or by constitution or statute, of, and any and all such rights and claims
against, every such incorporator, stockholder, officer or director, as such,
because of the creation of the obligations hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Agreement
or in any of the Warrants or implied thereform are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this
Agreement and the issuance of such Warrants.
ARTICLE VII
AMENDMENTS; MEETING OF WARRANTHOLDERS
Section 7.1. Amendments Without Consent of Registered Owners of Warrants.
This Agreement and the terms and conditions of the Warrants may be amended by
the Company and the Agent, without the consent of any Registered Owner of
Warrants for any of the following purposes:
(a) to add to the covenants of the Company for the benefit of the
Registered Owners of Warrants,
(b) to surrender any right or power conferred upon the Company,
(c) to cure any ambiguity or correcting or supplementing any provision
contained herein or in the Warrants which may be defective or inconsistent
with any other provisions contained herein or in the Warrants,
(d) if deemed appropriate by the Company or required by law, to
evidence the permitted succession of another corporation to the Company and
the assumption by such successor of the covenants and obligations of the
Company herein and in the Warrants or
(e) to make such other provisions in regard to matters or questions
arising under this Agreement or the Warrants which shall not adversely
affect the interests of the Registered Owners of the Warrants in any
material respect.
Section 7.2. Amendments with Consent of Registered Owners of Warrants. This
Agreement, the terms and conditions of the Warrants and the covenants contained
in either may also be modified or amended by the Company and the Agent and past
defaults thereunder or future compliance therewith by the Company may be waived
either with the written consent of the Registered Owners of not less than a
majority of Warrants (measured in terms of the principal amount of the
[Notes/Debentures] which could be purchased pursuant thereto) at the time
Outstanding, or by the adoption, at a meeting duly convened and held in
accordance with the provisions of Section 8.04 at which the Registered Owners of
at least 25% of the Warrants (measured in terms of the principal amount of the
[Notes/Debentures] which could be purchased pursuant thereto) at the time
Outstanding are present or represented, of a resolution by the
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Registered Owners of not less than 75% in aggregate principal amount of the
Outstanding Warrants present or represented at the meeting; provided that no
such modification, amendment or waiver may, without the consent or affirmative
vote of the Registered Owner of each Warrant affected thereby:
(a) Waive a default in the failure to deliver [Notes/Debentures] in
exchange for Warrants pursuant to Section 4.1 hereof or change the Exercise
Dates or the Expiry Date with respect to any Warrant, or change the coin or
currency in which any Warrant is exercisable for [Notes/Debentures] or
impair the right to institute suit for the enforcement of any rights of any
Registered Owner of a Warrant or
(b) Reduce the percentage in amount of the Outstanding Warrants, the
consent of which Registered Owners is required for any modification or
amendment to this Agreement or to the terms and conditions of or covenants
contained in this Agreement or in the Warrants or for any waiver of
compliance therewith or
(c) modify any of the provisions of this Section 7.2 except to provide
that certain other provisions of this Agreement or the terms and conditions
of the Warrants cannot be modified, amended or waived without the consent
of the Registered Owner of each Outstanding Warrant affected thereby.
It shall not be necessary for the Registered Owners of Warrants to approve the
particular form of any proposed amendment, but it shall be sufficient if they
approve the substance thereof.
Section 7.3. Binding Nature of Amendments; Notice. Any modifications,
amendments or waivers to this Agreement or to the terms and conditions of the
Warrants in accordance with the provisions hereof will be conclusive and binding
on all Registered Owners of Warrants, whether or not they have given such
consent, whether or not notation of such modifications, amendments or waivers is
made upon the Warrants, and on all future Registered Owners of Warrants.
Promptly after the execution of any amendment to this Agreement or the
implementation of any modification or amendment of the terms and conditions of
the Warrants, notice of such amendment or modification shall be given by the
Company or by the Agent, on behalf of and at the instruction of the Company, to
the Registered Owners by mail at such owner's address as it appears on the
Register. The failure to give such notice on a timely basis shall not invalidate
such amendment or modification, but such notice shall be given as soon as
practicable upon discovering such failure or upon any impediment to the giving
of such notice being overcome.
ARTICLE VIII
MEETINGS
Section 8.1. Meetings of Registered Owners of Warrants. A meeting of
Registered Owners of Warrants may be called at any time and from time to time to
make, give or take any
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request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Agreement or the Warrants to be made, given or taken by
Registered Owners of Warrants.
The Agent may at any time call a meeting of Registered Owners of Warrants
for any purpose specified herein to be held at such time and at such place in
______ or __________ as the Agent shall determine. Notice of every meeting of
Registered Owners of Warrants, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, by mail to each registered Owner at its address as it appears on
the Register, not less than 21 nor more than [45] days prior to the date fixed
for the meeting. In case at any time the Company or the Registered Owners of at
least 25% in aggregate amount of the Outstanding Warrants shall have requested
the Agent to call a meeting of the Registered Owners of Warrants for any
purpose, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Agent shall not have mailed notice
of such meeting within 14 days after receipt of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Registered Owners of Warrants in the amount previously specified,
as the case may be, may determine the time and the place in _______ or for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided herein.
To be entitled to vote at any meeting of Registered Owners of Warrants, a
Person shall be a registered Owner of Outstanding Warrants. The Persons entitled
to vote a majority in aggregate amount of the Outstanding Warrants shall
constitute a quorum. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request of
the Registered Owners of Warrants, be dissolved. In any other case the meeting
may be adjourned for a period of not less than 5 days as determined by the
chairman of the meeting prior to the adjournment of such meeting. In the absence
of a quorum at any such adjourned meeting, such adjourned meeting may be further
adjourned for a period of not less than 5 days as determined by the chairman of
the meeting prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in this Section
8.1 with respect to an original meeting, except that such notice need be given
only once not less than 3 days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage of the amount of the Outstanding Warrants
which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned for a
lack of a quorum the persons entitled to vote 25% in aggregate amount of the
Outstanding Warrants shall constitute a quorum for the taking of any action set
forth in the notice of the original meeting. Any meeting of Registered Owners of
Warrants at which a quorum is present may be adjourned from time to time by a
vote as hereinafter provided in this Section 8.1, and the meeting may be held as
so adjourned without further notice. At a meeting or an adjourned meeting duly
reconvened and at which a quorum is present as aforesaid, any resolution and all
matters shall be effectively passed or decided if passed or decided by persons
entitled to vote the lesser of (a) a majority in aggregate amount of Outstanding
Warrants or (b) 75% in aggregate amount of Outstanding Warrants represented and
voting at such meeting.
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The Agent may make such reasonable regulations as it may deem advisable for
any meeting of Registered Owners of Warrants in regard to proof of the holding
of Warrants and such other matters concerning the conduct of the meeting as it
shall deem appropriate. The
Agent shall, by an instrument in writing, appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company or Registered
Owners of Warrants as provided herein, in which case the Company or the
Registered Owners calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and permanent secretary of
the meeting shall be elected by note of the persons entitled to vote a majority
in aggregate principal amount of the Outstanding Warrants represented at the
meeting. The chairman of the meeting shall have no right to vote, except as a
Holder of Warrants.
Section 8.2. Record of Meetings. A record, at least in triplicate, of the
proceedings of each meeting of Registered Owners of Warrants shall be prepared,
and one such copy shall be delivered to the Company and the Agent. The copy
delivered to the Agent shall be preserved by the Agent and, upon reasonable
notice, made available to any Registered Owners of Outstanding Warrants.
ARTICLE IX
CONCERNING THE AGENT
Section 9.1. Appointment of Agent. The Company hereby appoints, at present
having its principal office in [__________ at _____________, ________,
__________] as the Agent in respect of the Warrants, upon the terms and subject
to the conditions set forth in this Agreement.
Section 9.2. Acceptance of Appointment by Agent; Limitations of Duties of
Agent. The Agent accepts its obligations set forth herein and in the Warrants
upon the terms and conditions hereof and thereof, including the following, to
all of which the Company agrees and to all of which the rights hereunder of the
Registered Owners from time to time of the Warrants shall be subject:
(a) The Agent shall be entitled to the compensation agreed upon with
the Company for all services rendered by it, and the Company agrees
promptly to pay such compensation and to reimburse the Agent for its
reasonable out-of-pocket expenses (including, without limitation, the
reasonable compensation of its counsel) incurred by it in connection with
the services rendered by it hereunder. The Company also agrees to indemnify
the Agent for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising out
of or in connection with its acting as such Agent hereunder, including the
costs and expenses of defending against any claim of liability.
(b) In acting under this Agreement and in connection with the
Warrants, the Agent is acting solely as the agent of the Company and does
not assume any obligations or relationship of agency or trust for or with
any of the Registered Owners of the Warrants.
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(c) The Agent may consult with one or more counsel (who may also be
counsel to the Company), and, in the absence of bad faith, the written
opinion of such counsel shall be full and complete authorization and
protection in respect of any action taken, omitted or suffered by it
hereunder in the good faith reliance thereon.
(d) The Agent shall be protected and shall incur no liability for or
in respect of any action taken, omitted or suffered by it in the good faith
reliance upon any Warrant, notice, direction, consent, certificate,
affidavit, statement or other paper or document signed by the Company
reasonably believed by the Agent to be genuine and to have been signed by
the proper persons.
(e) The Agent and its officers, directors and employees may become the
owner of, or acquire any interest in, any Warrants, with the same rights
that it or they would have if it were not the Agent hereunder, may engage
or be interested in any financial or other transaction with the Company and
may act on, or as depository, trustee or agent for, any committee or body
of Registered Owners of the Warrants or holders of other obligations of the
Company as freely as if it were not the Agent hereunder.
(f) The recitals contained herein and in the Warrants (except in the
Agent's certificates of authentication) shall be taken as the statements of
the Company, and the Agent assumes no responsibility for their correctness.
The Agent makes no representation as to the validity or sufficiency of this
Agreement or the Warrants, provided that the Agent shall not be relieved of
its duty to authenticate Warrants as authorized by this Agreement. The
Agent shall not be accountable for the use or application by the Company of
the proceeds of the Warrants.
(g) The Agent shall be obligated to perform such duties and only such
duties as are herein and in the Warrants specifically set forth and no
implied duties or obligations shall be read into this Agreement or the
Warrants against the Agent.
(h) No provision of this Agreement shall be construed to relieve the
Agent from liability for its own negligent action, its own negligent
failure to act, or its own willful misconduct or that of its officers or
employees.
(i) The Agent shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
Section 9.3. Agent Required. The Company agrees that, until all Warrants
(i) shall have been delivered to the Agent for cancellation or (ii) have become
null and void because of the passage of the Expiry Date, there shall at all
times be a Agent hereunder which shall be a corporation doing business in the
United States and which alone or with its affiliates has a combined capital and
surplus of at least $[___,000,000].
Section 9.4. Resignation and Removal of Agent; Appointment of Successor.
The Agent may at any time resign by giving written notice (in accordance with
Section 10.1 hereof) to the Company of such intention on its part, specifying
the date on which its desired resignation shall
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become effective; provided, however, that such date shall never be less than
[90] days after the receipt of such notice by the Company unless the Company
agrees to accept less notice. Upon receipt of such notice of resignation, the
Company shall promptly act to appoint a successor Agent. The Agent may be
removed at any time by the Company by delivering written notice thereof
specifying such removal and the date when it is intended to become effective.
Any resignation or removal of the Agent shall take effect upon the date of the
appointment by the Company as hereinafter provided of a successor and the
acceptance of such appointment by such successor.
In case at any time the Agent shall resign, or shall be removed, or shall
become incapable of acting or shall be adjudged as bankrupt or insolvent, or if
a receiver of its or of its property shall be appointed, or if any public
officer shall take charge or control of its or of its property or affairs, for
the purpose of rehabilitation, conservation or liquidation, a successor agent,
eligible as aforesaid, shall be appointed by the Company. Upon the appointment
as aforesaid of a successor agent and acceptance by it of such appointment, the
Agent so superseded shall cease to be the Agent hereunder. If no successor Agent
shall have been so appointed by the Company and shall have accepted appointment
as hereinafter provided, then the Registered Owners of a majority in aggregate
amount of the Outstanding Warrants, on such Holders' behalf and on behalf of all
others similarly situated may petition any court of competent jurisdiction for
the appointment of a successor Agent.
Any successor Agent appointed hereunder shall execute, acknowledge and
deliver to its predecessor and to the Company an instrument accepting such
appointment hereunder, and thereupon such successor Agent, without any further
act deed or conveyance, shall become vested with all the authority, rights,
powers, immunities, duties and obligations of such predecessor with like effect
as if originally named as such Agent hereunder, and such predecessor, upon
payment of its charges and disbursements then unpaid, shall simultaneously
therewith become obligated to transfer, deliver and pay over, and such successor
Agent shall be entitled to receive, all moneys, [Notes/Debentures] or other
property on deposit with or held by such predecessor, as such Agent hereunder.
The Company or, at the discretion of the Company, the successor Agent, will give
prompt written notice by U.S. Mail to each Registered Owner of the Warrants at
such owner's address as it appears on the Register of the appointment of a
successor Agent. Failure to give such notice or any defect therein shall not
affect the appoint of a successor Agent.
Section 9.5. Merger, Conversion, Consolidation or Succession to Business of
Agent. Any corporation into which the 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 the Agent shall be a party, or any
corporation succeeding to all or substantially all the assets and business of
the Agent, shall be the successor to the Agent hereunder, provided such
corporation shall be otherwise eligible under this Article IX, without the
execution or filing of any document or any further act on the part of any of the
parties hereto.
In case any Warrants shall have been authenticated, but not delivered, by
the Agent then in office, any successor by merger, conversion or consolidation
to such authenticating Agent
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may adopt such authentication and deliver the Warrants so authenticated with the
same effect as if such successor Agent had itself authenticated such Warrants.
ARTICLE X
MISCELLANEOUS
Section 10.1. Notices. All notices or demands hereunder upon the Company or
the Agent may be electronically communicated or hand delivered or sent by
overnight courier, addressed to any party hereto as provided in this Section
10.1.
All communications intended for the Company shall be sent to:
EEX Corporation
2500 CityWest Blvd.
Suite 1400
Houston, Texas 77042
Attention: (Chief Financial Officer)
Fax Number:
All communications intended for the Agent shall be sent to:
Agent Name
Attention:
Fax Number:
or at any other address of which either of the foregoing shall have notified the
other in any manner prescribed in this Section 10.01.
For all purposes of this Agreement, a notice or communication will be
deemed effective:
(a) if delivered by hand or sent by overnight courier, on the day it
is delivered unless (i) that day is not a day on which commercial banks are
open for business (a "Local Business Day") in the city specified in the
address for notice provided by the recipient or (ii) if delivered after the
close of business on a Local Business Day, then on the next succeeding
Local Business Day or
(b) if sent by facsimile transmission, on the date transmitted,
provided that oral or written confirmation of receipt is obtained by the
sender unless the date of transmission and confirmation is not a Local
Business Day, in which case, on the next succeeding Local Business Day.
Any notice, direction, request, demand, consent or waiver by the Company or any
Registered Owner to or upon the Agent shall be deemed to have been sufficiently
given, made or filed, for
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all purposes, if given, made or filed in writing with the Agent in accordance
with the provisions of this Section 10.1.
Section 10.2. Day Not a Business Day. If any date on which a payment is to
be made, notice given or other action taken hereunder is not a Business Day,
then such payments, notice or other action shall be made, given or taken on the
next succeeding business day in such place, and in the case of any payment, no
interest shall accrue for the delay.
Section 10.3. Currency. All amounts herein are expressed in [United States
Dollars/Specified Currency].
Section 10.4. Governing Law. This Agreement and the Warrants shall be
construed in accordance with the laws of [New York].
Section 10.5. Limitation of Rights to Parties and Registered Owners of
Warrants. Nothing in this Agreement or in the Warrants expressed or implied is
intended or shall be construed to give to any Person other than the Company, the
Agent and the Registered Owners of the Warrants any legal or equitable right,
remedy or claim under or in respect of this Agreement or any covenant, condition
or provision herein or in the Warrants. All such covenants, conditions and
provisions are and shall be held to be for the sole and exclusive benefit of the
Company, the Agent and the Registered Owners of the Warrants.
Section 10.6. Separability of Invalid Provisions. In case any one or more
of the provisions contained in this Agreement or in the Warrants shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provision
of this Agreement, but this Agreement shall be construed as if such invalid or
illegal or unenforceable provision had never been contained herein.
Section 10.7. No Waiver of Rights. A failure or delay in exercising any
right, power or privilege in respect of this Warrant Agreement will not be
presumed to operate as a waiver, and a single or partial exercise of any right,
power or privilege will not be presumed to preclude any subsequent or further
exercise of that right, power or privilege or the exercise of any other right,
power or privilege.
Section 10.8. Execution in Several Counterparts. This Agreement may be
executed in any number of counterparts, each of which shall for all purposes be
deemed to be an original; but such counterparts shall together constitute but
one and the same instrument.
Section 10.9. Article and Section Headings. The headings or titles of the
several Articles and Sections hereof and any table of contents appended to
copies hereof shall be solely for convenience of reference and shall not affect
the meaning, construction or effect of this Agreement.
Section 10.10. Successors and Assigns. All the covenants and agreements in
this Agreement contained by or on behalf of the Company or the Agent shall bind
their respective successors and assigns, whether so expressed or not.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
EEX CORPORATION
By:
---------------------------
[AGENT NAME], as Agent
By:
---------------------------
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EXHIBIT 4.7
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EEX CORPORATION
STANDARD STOCK WARRANT
AGREEMENT PROVISIONS
---------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 Issuance, Execution and Delivery of Warrant Certificates.............1
Section 1.1 Issuance of Warrant Certificates............................1
Section 1.2 Execution and Delivery of Warrant Certificates..............1
Section 1.3 Registration and Countersignature...........................2
ARTICLE 2 Warrant Price, Duration and Exercise of Warrant Certificates.........3
Section 2.1 Warrant Price...............................................3
Section 2.2 Duration of Warrant Certificates............................3
Section 2.3 Exercise of Warrant Certificates............................3
ARTICLE 3 Other Provisions Relating to Rights of Holders of Warrant
Certificates.........................................................4
Section 3.1 No Rights as Securityholders Conferred by Warrant
Certificate.................................................4
Section 3.2 Lost, Stolen, Mutilated or Destroyed Warrant Certificates...4
Section 3.3 Holder of Warrant Certificate May Enforce Rights............5
Section 3.4 Call of Warrants by the Company.............................5
Section 3.5 Optional Reduction of Warrant Price.........................5
Section 3.6 Reservation of Shares.......................................5
Section 3.7 Obtaining of Governmental Approvals and Stock
Exchange Listings...........................................6
Section 3.8 Adjustment of Exercise Price and Number of Shares
Purchasable or Number of Warrants...........................6
Section 3.9 Fractional Warrants and Fractional Shares...................9
Section 3.10 Notices to Warrantholders...................................9
ARTICLE 4 Exchange and Transfer of Warrant Certificates.......................11
Section 4.1 Exchange and Transfer......................................11
Section 4.2 Treatment of Holders of Warrant Certificates...............11
Section 4.3 Cancellation of Warrant Certificates.......................12
ARTICLE 5 Concerning the Warrant Agent........................................12
Section 5.1 Warrant Agent..............................................12
Section 5.2 Conditions of Warrant Agent's Obligations..................12
Section 5.3 Resignation and Appointment of Successor Warrant Agent.....14
ARTICLE 6 Miscellaneous ......................................................15
Section 6.1 Supplements and Amendments.................................15
Section 6.2 Notices and Demands to the Company and Warrant Agent.......15
Section 6.3 Addresses..................................................15
Section 6.4 Delivery of Prospectus.....................................16
Section 6.5 Obtaining of Governmental Approvals........................16
Section 6.6 Persons Having Rights under Warrant Agreement .............16
Section 6.7 Headings...................................................16
Section 6.8 Counterparts...............................................16
(i)
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Section 6.9 Inspection of Agreement....................................16
Section 6.10 Governing Law..............................................16
Section 6.11 Successors.................................................17
Section 6.12 Termination................................................17
(ii)
<PAGE>
From time to time, EEX Corporation, a Texas corporation (the "Company"),
may enter into one or more warrant agreements that provide for the issuance and
sale of warrants ("Warrants") to purchase shares of the Company's (Common Stock,
$0.01 par value) (Preferred Stock, $0.01 par value) (collectively "Shares"). The
standard provisions set forth herein may be included or incorporated by
reference in any such warrant agreement (a "Warrant Agreement"). The Warrant
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this "Agreement." The person named as the "Warrant Agent" in the
first paragraph of the Warrant Agreement is herein referred to as the "Warrant
Agent." Unless otherwise defined in this Agreement or in the Warrant Agreement,
as the case may be, terms defined in the Warrant Agreement are used herein as
therein defined and terms defined herein are used in the Warrant Agreement as
herein defined.
ARTICLE 1
ISSUANCE, EXECUTION AND DELIVERY OF WARRANT CERTIFICATES
1.1 Issuance of Warrant Certificates. Each Warrant Certificate shall
evidence one or more Warrants. Each Warrant evidenced thereby shall represent
the right, subject to the provisions contained herein and therein, to purchase
such numbers of Shares as are set forth in the related Warrant Agreement. The
number of Warrants which may be issued and delivered under this Agreement is
unlimited.
There shall be established in or pursuant to a resolution of the Board of
Directors of the Company or any duly authorized committee thereof or established
in one or more warrant agreements supplemental hereto, prior to the issuance of
any Warrants: the designation of such Warrants; if the Warrants are issued
together as a unit with any other securities of the Company, the date after
which the Warrants shall be freely tradable separately from such other
securities (the "Distribution Date"); if the Company may at its option or under
circumstances described therein provide for an earlier Distribution Date; the
expiration date, pursuant to Section 2.2; the exercise price and any form of
consideration other than lawful money of the United States of America by which
the exercise price may be paid pursuant to Section 2.1; the Call Price, Call
Date and Call Terms pursuant to Section 3.4; the limitations, if any, upon the
Reduced Warrant Price and the Reduced Warrant Price Period, pursuant to Section
3.5; the circumstances, if any, under which the Exercise Price and the number of
Shares purchasable upon the exercise of each Warrant and the number of Warrants
outstanding are subject to adjustment and the manner of making any such
adjustment.
1.2 Execution and Delivery of Warrant Certificates. Each Warrant
Certificate, whenever issued, shall be in registered form substantially in such
form or forms as shall be established by the Company from time to time pursuant
to one or more resolutions of the Board of Directors of the Company or in one or
more Warrant Agreements supplemental hereto, and in each case shall be dated as
of the date of issuance thereof, and may have such letters, numbers or other
marks of identification or designation and such legends or endorsements printed,
lithographed or engraved thereon as the officers of the Company executing the
Warrant Certificate may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of this
Agreement, or as may be required to comply with (i) any law or with any rule or
regulation made pursuant thereto or (ii) any rule or regulation of any stock
exchange on
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which the Warrant Certificates may be listed, or to conform to usage. The
Warrant Certificates shall be signed on behalf of the Company by its Chairman of
the Board of Directors, a Vice Chairman of the Board of Directors, its
President, a Vice President or its Treasurer and attested by its Secretary or
Assistant Secretary, under its corporate seal. Such signatures may be manual or
facsimile signatures of such authorized officers and may be imprinted or
otherwise reproduced on the Warrant Certificates. The seal of the Company may be
in the form of a facsimile thereof and may be impressed, affixed, imprinted or
otherwise reproduced on the Warrant Certificates.
No Warrant Certificate shall be valid for any purpose, and no Warrant
evidenced thereby shall be exercisable, until such Warrant Certificate has been
countersigned by the manual signature of the Warrant Agent. Such signature by
the Warrant Agent upon any Warrant Certificate executed by the Company shall be
conclusive evidence that the Warrant Certificate so countersigned has been duly
delivered hereunder.
If any officer of the Company who shall have signed any of the Warrant
Certificates either manually or by facsimile signature shall cease to be such
officer before the Warrant Certificates so signed shall have been countersigned
and delivered to the Warrant Agent, such Warrant Certificates nevertheless may
be countersigned and delivered as though the person who signed such Warrant
Certificates had not ceased to be such officer of the Company. Any Warrant
Certificate may be signed on behalf of the Company by such persons as, at the
actual date of the execution of such Warrant Certificate, shall be the proper
officers of the Company, although at the date of the execution of this Agreement
any such person was not an officer.
1.3 Registration and Countersignature. The Warrant Agent shall, upon
receipt of Warrant Certificates, duly executed on behalf of the Company,
countersign the Warrant Certificates evidencing Warrants to purchase the number
of Shares set forth in the Warrant Agreement and shall deliver such Warrant
Certificates to the appropriate person or entity upon the order of the Company.
After the original issuance of the Warrant Certificates, the Warrant Agent shall
countersign a Warrant Certificate only if the Warrant Certificate is issued in
exchange or substitution for, or in connection with the registration of transfer
of, one or more previously countersigned Warrant Certificates, as hereinafter
provided. The Warrant Certificates shall not be valid for any purpose unless so
countersigned.
The Warrant Agent's countersignature on all
Warrants shall be in substantially the following form:
[NAME OF WARRANT AGENT],
as Warrant Agent
By______________________
Authorized Signatory
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ARTICLE 2
WARRANT PRICE, DURATION AND
EXERCISE OF WARRANT CERTIFICATES
2.1 Warrant Price. The exercise price of each Warrant and any other form of
consideration other than lawful money of the United States of America by which
the exercise price may be paid shall be as set forth in the Warrant Agreement.
The purchase price (including moneys and such other consideration) of the Shares
upon exercise of the Warrants is referred to in this Agreement as the "Warrant
Price" and is payable in full at the time of exercise.
2.2 Duration of Warrant Certificates. Warrant Certificates may be exercised
in whole at any time, and in part from time to time, during the period set forth
in the Warrant Agent (the "Expiration Date"). Each Warrant Certificate not
exercised on or before the close of business on the Expiration Date shall become
void, and all rights of the holder thereunder and under this Agreement shall
cease.
2.3 Exercise of Warrant Certificates.
(a) Prior to the Expiration Date, a Warrant Certificate, if countersigned
by the Warrant Agent, may be exercised in whole or in part by providing certain
information set forth on the reverse side of the Warrant Certificate and, unless
otherwise provided pursuant to Section 2.1, by paying in full (in cash or by
certified or official bank check in New York Clearing House funds or by bank
wire transfer in immediately available funds), in United States dollars, the
Warrant Price for the Shares as to which the Warrant Certificate is exercised,
to the Warrant Agent, or delivering the other consideration constituting the
Warrant Price at its corporate trust office at the address set forth in the
Warrant Agreement. The payment must specify the name of the holder and the
number of Warrants exercised by such holder. Warrants will be deemed to have
been exercised upon receipt by the Warrant Agent of the Warrant Price and the
Warrant Certificate properly completed and duly executed by the registered
holder or holders thereof or by the duly appointed legal representative thereof
or by a duly authorized attorney, such signature to be guaranteed (under the
Medallion Program) by a bank or trust company, by a broker or dealer which is a
member of the National Association of Securities Dealers, Inc. ("NASD") or by a
member of a national securities exchange. If the Warrant Agent receives moneys
in payment of the Warrant Price, the Warrant Agent shall deposit all funds
received by it in the account of the Company maintained with it for such
purpose. If the Warrant Agent receives consideration other than moneys for
Warrants, the Warrant Agent shall deliver such consideration directly to the
Company. In either case, the Warrant Agent shall advise the Company by telex or
telecopy at the end of each day as to the Warrant Certificates that have been
exercised and the amount of moneys deposited to its account or the type and
amount of other consideration to be delivered to it.
(b) The Warrant Agent shall, from time to time, as promptly as practicable,
advise the Company of (i) the number of Warrants exercised, (ii) the
instructions of each holder of the Warrant Certificates evidencing such Warrants
with respect to delivery of the Shares to which such holder is entitled upon
such exercise, (iii) delivery of Warrant Certificates evidencing the
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balance, if any, of the Warrants remaining after such exercise and (iv) such
other information as the Company shall reasonably require.
(c) As soon as practicable after receipt of payment of the Warrant Price
and the Warrant Certificate properly completed and duly executed by the holder
at the corporate trust office of the Warrant Agent, the Company shall issue or
deliver, upon the order of the holder of such Warrant Certificate, the Shares in
authorized denominations to which such holder is entitled, in fully registered
form in such name or names as maybe directed by such holder, and if such Warrant
Certificate was not exercised in full, upon request of the holder a new Warrant
Certificate evidencing the number of Warrants remaining unexercised shall be
issued if sufficient time remains prior to the Expiration Date.
(d) The Company will pay all documentary stamp taxes attributable to the
initial issuance of Warrants and of Shares upon the exercise of Warrants;
provided, however, that the Company shall not be required to pay any tax or
taxes which may be payable in respect of any transfer involved in the issue of
any Warrant Certificates or any certificates for Shares in a name other than the
registered holder of a Warrant Certificate surrendered upon the exercise of a
Warrant, and the Company shall not be required to issue or deliver such
certificates unless or until the person or persons requesting the issuance
thereof shall have paid to the Company the amount of such tax or shall have
established to the satisfaction of the Company that such tax has been paid.
ARTICLE 3
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF WARRANT CERTIFICATES
3.1 No Rights as Securityholders Conferred by Warrant Certificates. No
Warrant Certificate shall entitle the holder thereof to any of the rights of a
stockholder of the Company, including the right to receive the payment of
dividends on or vote the Shares.
3.2 Lost, Stolen, Mutilated or Destroyed Warrant Certificates. Upon receipt
by the Company and the Warrant Agent of evidence reasonably satisfactory to them
of the ownership and the loss, theft, destruction or mutilation of the Warrant
Certificate, and of indemnity reasonably satisfactory to them, and, in the case
of mutilation, upon surrender thereof to the Warrant Agent for cancellation,
then, in the absence of notice to the Company or the Warrant Agent that such
Warrant Certificate has been acquired by a bona fide purchaser, the Company
shall execute, and an authorized officer of the Warrant Agent shall manually
countersign and deliver, in exchange for or in lieu of the lost, stolen or
destroyed or mutilated Warrant Certificate, a new Warrant Certificate of the
same tenor and for a like number of Warrants. Upon the issuance of any new
Warrant Certificate 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 expense (including the fees and expenses of
the Warrant Agent) in connection therewith. Every substitute Warrant Certificate
executed and delivered pursuant to this Section in lieu of any lost, stolen or
destroyed Warrant Certificate shall constitute an additional contractual
obligation of the Company, whether or not the lost, stolen or destroyed Warrant
Certificate shall be at any time enforceable by anyone, and shall be entitled to
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the benefits of this Agreement equally and proportionately with any and all
other Warrant Certificates duly executed and delivered hereunder. The provisions
of this Section are exclusive and shall preclude (to the extent lawful) any and
all other rights or remedies with respect to the replacement of mutilated, lost,
stolen or destroyed Warrant Certificates.
3.3 Holder of Warrant Certificate May Enforce Rights. Notwithstanding any
of the provisions of this Agreement, any holder of any Warrant Certificate,
without the consent of the Warrant Agent, the holder of any Shares or the holder
of any other Warrant Certificate, may, in his or her own behalf and for his or
her own benefit, enforce, and may institute and maintain any audit, action or
proceeding against the Company to enforce or otherwise in respect of, his right
to exercise his or her Warrant Certificate in the manner provided in his or her
Warrant Certificate and in his or her Agreement.
3.4 Call of Warrants by the Company. If so provided in the Warrant
Agreement, the Company shall have the right to call and repurchase any or all
Warrants at the price (the "Call Price") and on or after the date (the "Call
Date") and upon the terms (the "Call Terms") as shall be established from time
to time in or pursuant to resolutions of the Board of Directors of the Company
or in the Warrant Agreement before the issuance of such Warrants. Notice of such
Call Price, Call Date and Call Terms shall be given to registered holders of
Warrants in writing by the Company or the Warrant Agent.
3.5 Optional Reduction of Warrant Price. Subject to the limits, if any,
established from time to time by the Board of Directors of the Company or in the
Warrant Agreement, the Company shall have the right, at any time or from time to
time, voluntarily to reduce the then current Warrant Price to such amount (the
"Reduced Warrant Price") and for such period or periods of time, which may be
through the close of business on the Expiration Date (the "Reduced Warrant Price
Period"), as may be deemed appropriate by the Board of Directors of the Company.
Notice of any such Reduced Warrant Price and Reduced Warrant Price Period shall
be given to registered holders of Warrants in writing by the Company or the
Warrant Agent. After the termination of the Reduced Warrant Price Period, the
Warrant Price shall be such Warrant Price that would have been in effect had
there been no reduction in the Warrant Price pursuant to the provisions of this
Section 3.5.
3.6 Reservation of Shares. For the purpose of enabling it to satisfy any
obligation to issue Shares upon exercise of Warrants, the Company will at all
times through the close of business on the Expiration Date, reserve and keep
available, free from preemptive rights and out of its aggregate authorized but
unissued or treasury shares of [Common/Preferred Stock], the number of Shares
deliverable upon the exercise of all outstanding Warrants, and the transfer
agent for the shares is hereby irrevocably authorized and directed at all times
to reserve such number of authorized and unissued or treasury shares of
[Common/Preferred Stock] as shall be required for such purpose. The Company will
keep a copy of this Agreement on file with such transfer agent and with every
transfer agent for any shares of the Company's capital stock issuable upon the
exercise of Warrants. The Warrant Agent is hereby irrevocably authorized to
requisition from time to time from such transfer agent stock certificates
issuable upon exercise of outstanding Warrants, and the Company will supply such
transfer agent with duly executed stock certificates for such purpose.
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Before taking any action that would cause an adjustment pursuant to Section
3.7 reducing the Exercise Price below the then par value (if any) of the Shares
issuable upon exercise of the Warrants, the Company will take any corporate
action that may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue fully paid and nonassessable Shares at the
Exercise Price as so adjusted.
The Company covenants that all Shares issued upon exercise of the Warrants
will, upon issuance in accordance with the terms of this Agreement, be fully
paid and nonassessable and free from all taxes, liens, charges and security
interests created by or imposed upon the Company with respect to the issuance
and holding thereof.
3.7 Obtaining of Governmental Approvals and Stock Exchange Listings. So
long as any Warrants remain outstanding, the Company will take all necessary
steps (a) to obtain and keep effective any and all permits, consents and
approvals of governmental agencies and authorities and to make filings under
federal and state securities acts and laws, which may be or become requisite in
connection with the issuance, sale, transfer and delivery of the Warrant
Certificates, the exercise of the Warrants and the issuance, sale, transfer and
delivery of the Shares issued upon excise of Warrants, and (b) to have the
shares of Stock immediately upon their issuance upon exercise of Warrants, (i)
listed on each national securities exchange on which the [Common/Preferred
Stock] is then listed or (ii) if the [Common/Preferred Stock] is not then listed
on any national securities exchange, listed for quotation on the NASD Automated
Quotations System ("Nasdaq") National Market ("Nasdaq National Market") or such
other over-the-counter quotation system on which the Stock may then be listed.
3.8 Adjustment of Exercise Price and Number of Shares Purchasable or Number
of Warrants. The Exercise Price, the number of Shares purchasable upon the
exercise of each Warrant and the number of Warrants outstanding are subject to
adjustment from time to time upon the occurrence of the events enumerated in
this Section 3.8.
(a) the Company shall (i) pay a dividend on its capital stock (including
[Common/Preferred Stock]) in shares of Stock, (ii) subdivide its outstanding
shares of [Common/Preferred Stock], (iii) combine its outstanding shares of
[Common/Preferred Stock] into smaller number of shares of [Common/Preferred
Stock] or (iv) issue any shares of its capital stock in a reclassification of
the [Common/Preferred Stock] (including any such reclassification in connection
with a consolidation or merger in which the Company is the continuing
corporation), the number of Shares purchasable upon exercise of each Warrant
immediately prior thereto shall be adjusted so that the holder of each Warrant
shall be entitled to receive the kind and number of Shares or other securities
of the Company which such holder would have owned or have been entitled to
receive after the happening of any of the events described above, had such
Warrant been exercised immediately prior to the happening of such event or any
record date with respect thereto. An adjustment made pursuant to this paragraph
(a) shall become effective immediately after the effective date of such event
retroactive to the record date, if any, for such event.
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(b) In the event of any capital reorganization or any reclassification of
the [Common/Preferred Stock] (except as provided in paragraph (a) above or
paragraph (h) below), any holder of Warrants upon exercise thereof shall be
entitled to receive, in lieu of the [Common/Preferred Stock] to which he would
have become entitled upon exercise immediately prior to such reorganization or
reclassification, the shares (of any class or classes) or other securities or
property of the Company that he or she would have been entitled to receive at
the same aggregate Exercise Price upon such reorganization or reclassification
if his or her Warrants had been exercised immediately prior thereto; and in any
such case, appropriate provision (as determined in good faith by the Board of
Directors of the Company, whose determination shall be conclusive and shall be
evidenced by a resolution filed with the Warrant Agent) shall be made for the
application of this Section 3.8 with respect to the rights and interests
thereafter of the holders of Warrants (including the allocation of the adjusted
Warrant Price between or among shares of classes of capital stock), to the end
that this Section 3.8 (including the adjustments of the number of shares of
[Common/Preferred Stock] or other securities purchasable and the Warrant Price
thereof) shall thereafter be reflected, as nearly as reasonably practicable, in
all subsequent exercises of the Warrants for any shares or securities or other
property thereafter deliverable upon the exercise of the Warrants.
(c) Except for adjustments required by paragraph (h) hereof, no adjustment
in the number of Shares purchasable hereunder shall be required unless such
adjustment would require an increase or decrease of at least one percent (1%)in
the number of Shares purchasable upon the exercise of each Warrant; provided,
however, that any adjustments which by reason of this paragraph (c) are not
required to be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations shall be made to the nearest cent and to
the nearest one- hundredth of a Share, as the case may be.
(d) Whenever the number of Shares purchasable upon the exercise of each
Warrant is adjusted as herein provided (whether or not the Company then or
thereafter elects to issue additional Warrants in substitution for an adjustment
in the number of Shares as provided in paragraph (f), the Exercise Price payable
upon exercise of each Warrant shall be adjusted by multiplying such Exercise
Price immediately prior to such adjustment by a fraction, of which the numerator
shall be the number of Shares purchasable upon the exercise of each Warrant
immediately prior to such adjustment, and of which the denominator shall be the
number of Shares so purchasable immediately thereafter.
(e) For the purpose of this Section 3.8, the term "shares of Stock" shall
mean (i) the class of stock designated as the [Common/Preferred Stock] of the
Company at the date of this Agreement, or (ii) any other class of stock
resulting from successive changes or reclassification of such shares consisting
solely of changes in par value, of from par value to no par value, or from no
par value to par value. If at any time, as a result of an adjustment made
pursuant to paragraph (a) or (b) above, the holders of Warrants shall become
entitled to purchase any shares of the Company other than shares of Stock,
thereafter the number of such other shares so purchasable upon exercise of each
Warrant and the Exercise Price of such shares shall be subject to adjustment
from time to time in a manner and on terms as nearly equivalent as practicable
to the provisions with respect to the Shares contained in paragraphs (a) through
(d), inclusive,
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above, and the provisions of Section 2.1, 2.2, 2.3, 3.6, 3.7(a) and 3.10, with
respect to the Shares, shall apply on like terms to any such other shares.
(f) The Company may elect, on or after the date of any adjustment required
by paragraphs (a) through (b) of this Section 3.8, to adjust the number of
Warrants in substitution for an adjustment in the number of Shares purchasable
upon the exercise of a Warrant. Each of the Warrants outstanding after such
adjustment of the number of Warrants shall be exercisable for the same number of
shares as immediately prior to such adjustment. Each Warrant held of record
prior to such adjustment of the number of Warrants shall become that number of
Warrants (calculated to the nearest hundredth) obtained by dividing the Warrant
Price in effect prior to adjustment of the Warrant Price by the Warrant Price in
effect after adjustment of the Warrant Price. The Company shall notify the
holders of Warrants in the same manner as provided in the first paragraph of
Section 3.10, of its election to adjust the number of Warrants, indicating the
record date for the adjustment, and, if known at the time, the amount of the
adjustment to be made. This record date may be the date on which the Exercise
Price is adjusted or any day thereafter. Upon each adjustment of the number of
Warrants pursuant to this paragraph (f) the Company shall, as promptly as
practicable, cause to be distributed to holders of record of Warrants on such
record date Warrant Certificates evidencing, subject to Section 3.9, the
additional Warrants to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause to be distributed to
such holders of record in substitution and replacement for the Warrant
Certificates held by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Warrant Certificates
evidencing all the Warrants to be issued, executed and registered in the manner
specified in Section 1.3 and Article 4 (and which may bear, at the option of the
Company, the adjusted Exercise Price) and shall be registered in the names of
the holders of record of Warrant Certificates on the record date specified in
the notice.
(g) Except as provided in paragraph (a) of this Section 3.8, no adjustment
in respect of any dividends shall be made during the term of a Warrant or upon
the exercise of a Warrant.
(h) In case of any consolidation of the Company with or merger of the
Company into another corporation or in case of any sale or conveyance to another
corporation of the property of the Company as an entirety or substantially as an
entirety, the Company or such successor or purchasing corporation, as the case
may be, shall execute with the Warrant Agent an agreement that each holder of a
Warrant shall have the right thereafter upon payment of the Warrant Price in
effect immediately prior to such action to purchase upon exercise of each
Warrant the kind and amount of shares and other securities and property which he
or she would have owned or have been entitled to receive after the happening of
such consolidation, merger, sale or conveyance had such Warrant been exercised
immediately prior to such action. The Company shall mail by first class mail,
postage prepaid, to each holder of a Warrant, notice of the execution of any
such agreement. Such agreement shall provide for adjustments, which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Section 3.8. The provisions of this paragraph (h) shall similarly apply to
successive consolidations, mergers, sales or conveyances. The Warrant Agent
shall be under no duty or responsibility to determine the correctness of any
provisions contained in any provisions contained in any such agreement relating
either to the kind or amount of shares of stock or other securities or property
receivable
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upon exercise of Warrants or with respect to the method employed and provided
therein for any adjustments and shall be entitled to rely upon the provisions
contained in any such agreement.
(i) Irrespective of any adjustments in the Exercise Price or the number or
kind of shares purchasable upon the exercise of the Warrants, Warrants
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrants initially issuable
pursuant to this Agreement.
3.9 Fractional Warrants and Fractional Shares.
(a) The Company shall not be required to issue fractions of Warrants on any
distribution of Warrants to holders of Warrant Certificates or to distribute
Warrant Certificates that evidence fractional Warrants. In lieu of such
fractional Warrants, there shall be paid to the registered holder of the Warrant
Certificates with regard to which such fractional Warrants would otherwise be
issuable, an amount in cash equal to the same fraction of the current market
value of a full Warrant. For purposes of this Section, the current market value
of a Warrant shall be the closing price of one Warrant (as determined pursuant
to paragraph (c) below) for the trading day immediately prior to the date on
which such fractional Warrant would have been otherwise issuable.
(b) Notwithstanding any adjustment pursuant to Section 3.9 in the number of
Shares purchasable upon the exercise of a Warrant, the Company shall not be
required to issue fractions of Shares upon exercise of the Warrants or to
distribute certificates which evidence fractional Shares. In lieu of fractional
Shares, there shall be paid to the registered holders of Warrant Certificates at
the time such Warrant Certificates are exercised as herein provided an amount in
cash equal to the same fraction of the current market value of a share of
[Common/Preferred Stock]. For purposes of this Section 3.9, the current market
value of a share of [Common/Preferred Stock] shall be the closing price of a
share of [Common/Preferred Stock] (as determined pursuant to paragraph (c)
below) for the trading day immediately prior to the date of such exercise.
(c) The closing price for each day shall be the last sale price, regular
way, or, if no such sale takes place on such day, the average of the closing bid
and asked prices, regular way, for such day, in either case as reported in the
principal consolidated transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange or, if the Warrants
or Stock, as the case may be, is not listed or admitted to trading on such
exchange, as reported on the principal consolidated transaction reporting system
with respect to securities listed on the principal national securities exchange
on which the Warrants or [Common/Preferred Stock], respectively, is listed or
admitted to trading, or if the Warrants or [Common/Preferred Stock], as the case
may be, is not listed or admitted to trading on any national securities
exchange, as reported on Nasdaq National Market or, if the Warrants or Stock, as
the case may be, is not listed or admitted to trading on the Nasdaq National
Market, as reported on Nasdaq.
3.10 Notices to Warrantholders. Upon any adjustment of the number of Shares
purchasable upon exercise of each Warrant, the Warrant Price or the number of
Warrants outstanding, the Company within 20 calendar days thereafter shall (i)
cause to be filed with the
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Warrant Agent a certificate of a firm of independent public accountants of
recognized standing selected by the Company (who may be the regular auditors of
the Company) setting forth the Warrant Price and either the number of Shares
purchasable upon exercise of each Warrant or the additional number of Warrants
to be issued for each previously outstanding Warrant, as the case may be, after
such adjustment and setting forth in reasonable detail the method of calculation
and the facts upon which such adjustment was made, which certificate shall be
conclusive evidence of the correctness of the matters set forth therein, and
(ii) cause to be given to each of the registered holders of the Warrant
Certificates at such holder's address appearing on the Warrant Register written
notice of such adjustments by first class mail, postage prepaid. Where
appropriate, such notice may be given in advance and included as part of the
notice required to be mailed under the other provisions of this Section 3.10.
The Company shall cause written notice of such later Distribution Date,
such later Expiration Date, such Call Price, Call Date and Call Terms and such
Reduced Exercise Price and Reduced Exercise Price Period, as the case may be, to
be given as soon as practicable to the Warrant Agent and to each of the
registered holders of the Warrant Certificates by first class mail, postage
prepaid, at such holder's address appearing on the Warrant Register. In addition
to the written notice referred to in the preceding sentence, the Company shall
make a public announcement in a daily morning newspaper of general circulation
in New York City and in Dallas of such earlier Distribution Date, such later
Expiration Date, such Call Price, Call Date and Call Terms and such Reduced
Exercise Price and Reduced Exercise Price Period, as the case may be, at least
on week for two successive weeks prior to the implementation of such terms.
If:
(a) the Company shall declare any dividend payable in any securities upon
its shares of [Common/Preferred Stock] or make any distribution (other than a
cash dividend) to the holders of is shares of [Common/Preferred Stock], or
(b) the Company shall offer to the holders of its shares of
[Common/Preferred Stock] any additional shares of [Common/Preferred Stock] or
securities convertible into shares of [Common/Preferred Stock] or any right to
subscribe thereto, or
(c) there shall be a dissolution, liquidation or winding up of the Company
(other than in connection with a consolidation, merger or sale of all or
substantially all of its property, assets and business as an entirety), the
Company shall (i) cause written notice of such event to be filed with the
Warrant Agent and shall cause written notice of such event to be given to each
of the registered holders of the Warrant Certificates as such holder's address
appearing on the Warrant Register, by first class mail, postage prepaid, and
(ii) make a public announcement in a daily newspaper of general circulation in
New York City and in Houston of such event, such giving of notice and
publication to be completed at least 10 calendar days (or 20 calendar days in
any case specified in clause (c) above) prior to the date fixed as a record date
or the date of closing the transfer books for the determination of the
stockholders entitled to such dividend, distribution or subscription rights, or
for the determination of stockholders entitled to vote on such proposed
dissolution, liquidation or
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winding up. Such notice shall specify such record date or the date of closing
the transfer books, as the case may be. The failure to give the notice required
by this Section 3.10 or any defect therein shall not affect the legality or
validity of any distribution, right, warrant, dissolution, liquidation or
winding up or the vote upon or any other action taken in connection therewith.
ARTICLE 4
EXCHANGE AND TRANSFER OF WARRANT CERTIFICATES
4.1 Exchange and Transfer. Upon surrender at the corporate trust office of
the Warrant Agent, Warrant Certificates evidencing Warrants may be exchanged for
Warrant Certificates in other denominations evidencing such Warrants and the
transfer of Warrants may be registered in whole or in part; provided that such
other Warrant Certificates shall evidence the same aggregate number of Warrants
as the Warrant Certificates surrendered for exchange or registration of
transfer. The Warrant Agent shall keep, at its corporate trust office, books in
which it shall register Warrant Certificates and exchanges and transfers of
outstanding Warrant Certificates, upon surrender of the Warrant Certificates to
the Warrant Agent at its corporate trust office for exchange or registration of
transfer, properly completed and duly endorsed and duly signed by the registered
holder or holders thereof or by the duly appointed legal representative thereof
or by a duly authorized attorney, such signature to be guaranteed (under the
Medallion Program) by (a) a bank or trust company, (b) a broker or dealer that
is a member of the Nasdaq or (c) a member of a national securities exchange and
accompanied by appropriate instruments of registration of transfer and written
instructions for transfer, all in form satisfactory to the Company and the
Warrant Agent. No service charge shall be made for any exchange or registration
of transfer of Warrant Certificates, but the Company may require payment of a
sum sufficient to cover any stamp or other tax or other governmental charge that
may be imposed in connection with any such exchange or registration of transfer.
Whenever any Warrant Certificates are surrendered for exchange or registration
of transfer, an authorized officer of the Warrant Agent shall mutually
countersign and deliver to the person or persons entitled thereto a Warrant
Certificate or Warrant Certificate duly authorized and executed by the Company,
as so requested. The Warrant Agent shall not be required to effect any exchange
or registration of transfer that will result in the issuance of a Warrant
Certificate evidencing a fraction of a Warrant or a number of full Warrants and
a fraction of a Warrant. All Warrant Certificates issued upon any exchange or
registration of transfer of Warrant Certificates shall be the valid obligations
of the Company, evidencing the same obligations and entitled to the same
benefits under this Agreement as the Warrant Certificates surrendered for such
exchange or registration of transfer.
4.2 Treatment of Holders of Warrant Certificates. Every holder of a Warrant
Certificate, by accepting the same, consents and agrees with the Company, the
Warrant Agent and with every subsequent holder of such Warrant Certificate that,
until the transfer of the Warrant Certificate is registered on the books of the
Warrant Agent, the Company and the Warrant Agent may treat the registered holder
as the absolute owner thereof for any purpose and as the person entitled to
exercise the rights represented by the Warrants evidenced thereby, any notice to
the contrary notwithstanding.
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4.3 Cancellation of Warrant Certificates. Any Warrant Certificate
surrendered for exercise, registration of transfer or exchange shall, if
surrendered to the Company, be delivered to the Warrant Agent, and all Warrant
Certificates surrendered or so delivered to the Warrant Agent shall be promptly
canceled by the Warrant Agent and shall not be reissued and, except as expressly
permitted by this Agreement, no Warrant Certificate shall be issued hereunder in
lieu thereof. The Warrant Agent shall deliver to the Company from time to time,
or otherwise dispose of, canceled Warrant Certificates in manner satisfactory to
the Company.
ARTICLE 5
CONCERNING THE WARRANT AGENT
5.1 Warrant Agent. The Company hereby appoints the Warrant Agent as the
Warrant Agent of the Company in respect of the Warrant Certificates upon the
terms and subject to the conditions herein set forth, and the Warrant Agent
hereby accepts such appointment. The Warrant Agent shall have the powers and
authority granted to and conferred upon it in the Warrant Certificates and by
this Agreement, and such further powers and authority to act on behalf of the
Company as the Company may hereafter grant to or confer upon it. All of the
terms and provisions with respect to such powers and authority contained in the
Warrant Certificates are subject to and governed by the terms and provisions
hereof.
5.2 Conditions of Warrant Agent's Obligations. The Warrant Agent accepts
its obligations herein set forth upon the terms and conditions hereof, including
the following (to all of which the Company agrees and to all of which the rights
hereunder of the holders from time to time of the Warrant Certificates shall be
subject):
(a) Performance by the Company. The Company agrees that it will take any
corporate action that may be reasonably necessary in order to fulfill its
obligations under this Agreement, and the Warrant Certificates, and that it will
not take any action that would impair its ability to perform its obligations
under this Agreement and the Warrant Certificates.
(b) Compensation and Indemnification. The Company agrees promptly to pay
the Warrant Agent the compensation to be agreed upon with the Company for all
services rendered by the Warrant Agent and to reimburse the Warrant Agent for
reasonable out-of-pocket expenses (including reasonable counsel fees) incurred
by the Warrant Agent in connection with the services rendered hereunder by the
Warrant Agent. The Company also agrees to indemnify the Warrant Agent, and to
hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on the part of the Warrant Agent, arising out of or in
connection with its acting as the Warrant Agent hereunder, as well as the costs
and expenses of defending against any claim of liability in the premises.
(c) Agent for the Company. In acting under this Warrant Agreement and in
connection with the Warrant Certificates, the Warrant Agent is acting solely as
an agent of the Company, and the Warrant Agent does not assume any obligation or
relationship of agency or trust for or with any of the owners or holders of the
Warrant Certificates.
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(d) Counsel. The Warrant Agent may consult with counsel satisfactory to it,
and the opinion of such 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 accordance with the opinion of such counsel.
(e) Documents. The Warrant Agent shall be protected and shall incur no
liability for or in respect of any action taken or thing suffered by it in
reliance upon any Warrant Certificate, notice, direction, consent, certificate,
affidavit, statement or other paper or document reasonably believed by it to be
genuine and to have been presented or signed by the proper parties.
(f) Certain Transactions. The Warrant Agent and its officers, directors and
employees may buy, sell or deal in any of the Shares or other securities of the
Company and may become the owner of, or acquire any interest in, any Warrant
Certificates, with the same rights that it or they would have if it were not the
Warrant Agent hereunder, and, to the extent permitted by applicable law, they
may engage or be interested in any financial or other transaction with the
Company and may act on, or as depositary, trustee or agent for, any committee or
body of holders of the Shares or other obligations of the Company as freely as
if it were not the Warrant Agent.
(g) No Liability for Interest. Except as set forth in the Warrant
Agreement, the Warrant Agent shall not be under any liability for interest on
any moneys or other consideration at any time received by it pursuant to any of
the provisions of this Agreement or of the Warrant Certificates.
(h) No Liability for Invalidity. The Warrant Agent shall not incur any
liability with respect to the validity of this Agreement or any of the Warrant
Certificates.
(i) No Responsibility for Representations. The Warrant Agent shall not be
responsible for any of the recitals or representations contained herein or in
the Warrant Certificates (except the Warrant Agent shall be responsible for any
representations of the Warrant Agent herein and for its countersignature on the
Warrant Certificates), all of which are made solely by the Company.
(j) No Implied Obligations. The Warrant Agent shall be obligated to perform
such duties as are herein and in the Warrant Certificates specifically set
forth, but no implied duties or obligations shall be read into this Agreement or
the Warrant Certificates against the Warrant Agent. The Warrant Agent shall not
be under any obligation to take any action hereunder which may tend to involve
it in any expense or liability, the payment of which within a reasonable time is
not, in its reasonable opinion, assured to it. The Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company of
any of the Warrant Certificates authenticated by the Warrant Agent and delivered
by it to the Company pursuant to this Agreement or for the application or by the
Company of the proceeds of the Warrant Certificates. The Warrant Agent shall
have not duty or responsibility in case of any default by the Company in the
performance of its covenants or agreements contained in the Warrant Certificates
or in the case of the receipt of any written demand from a holder or a Warrant
Certificate with respect to
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such default, including any duty or responsibility to initiate or attempt to
initiate any proceedings at law or otherwise or to make any demands upon the
Company.
(k) Instructions. The Warrant Agent is hereby authorized and directed to
accept instructions with respect to the performance of its duties hereunder from
the Chairman of the Board, the Chief Executive Officer, the President, any Vice
President, the Treasurer, the Secretary or any Assistant Secretary of the
Company, and to apply to such officers for advice or instructions in connection
with its duties, and shall not be liable for any action taken or suffered to be
taken by it in good faith in accordance with instructions of any such officer or
in good faith reliance upon any statement signed by any one of such officer of
the Company with respect to any fact or matter (unless other evidence in respect
thereof is herein specifically prescribed) which may be deemed to be
conclusively proved and established by such signed statement.
5.3 Registration and Appointment of Successor Warrant Agent.
(a) The Company agrees, for the benefit of the holders from time to time of
the Warrant Certificates, that at all times there shall be a Warrant Agent
hereunder until all the Warrant Certificates are no longer exercisable.
(b) The Warrant Agent may at any time resign as such agent by giving
written notice to the Company of such intention on its part, specifying the date
on which its desired resignation shall become effective; provided that such date
shall not be less than 60 days after the date on which such notice is given
unless the Company agrees to accept less notice. The Warrant Agent may be
removed at any time by the filing with it of an instrument in writing signed by
or on behalf of the Company and specifying such removal and the date when it
shall become effective. Such resignation or removal shall take effect upon the
appointment by the Company, as hereinafter provided, of a successor Warrant
Agent (which shall be a bank or trust company organized and doing business under
the laws of the United States of America or of any State, in good standing, and
authorized under such laws to exercise corporate trust powers) and the
acceptance of such appointment by such successor Warrant Agent. Upon its
resignation or removal, the Warrant Agent shall be entitled to the payment by
the Company of the compensation agreed to under Section 5.2(b) hereof for, and
to the reimbursement of all reasonable out-of-pocket expenses incurred in
connection with, the services rendered hereunder by the Warrant Agent.
(c) If at any time the Warrant Agent shall resign, or shall be removed, or
shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or
shall file a petition seeking relief under the Federal Bankruptcy Code, as now
constituted or hereafter amended, or under any other applicable federal or state
bankruptcy law or similar law or make an assignment for the benefit of its
creditors or consent to the appointment of a receiver or custodian of all or any
substantial part of its property, or shall admit in writing its inability to pay
or meet its debts as they mature, or if a receiver or custodian of it or of all
or any substantial part of its property shall be appointed, or if an order of
any court shall be entered for relief against it under the Federal Bankruptcy
Code, as now constituted or hereafter amended, or under any other applicable
federal or state bankruptcy or similar law or if any public officer shall have
taken charge or control of the Warrant Agent or of its property or affairs, for
the purpose of
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rehabilitation, conservation or liquidation, a successor Warrant Agent,
qualified in accordance with the terms of this Agreement, shall be appointed by
the Company by an instrument in writing, filed with the successor Warrant Agent.
Upon the appointment of a successor Warrant Agent and acceptance by the latter
of such appointment, the Warrant Agent so superseded shall cease to be the
Warrant Agent hereunder.
(d) Any successor Warrant Agent appointed hereunder shall execute,
acknowledge and deliver to its predecessor and to the Company an instrument
accepting such appointment hereunder, and thereupon such successor Warrant
Agent, without any further act, deed or conveyance, shall become vested with all
the authority, rights, powers, trusts, immunities, duties and obligations of
such predecessor with like effect as if originally named as Warrant Agent
hereunder, and such predecessor, upon payment of its charges and disbursements
then unpaid, shall thereupon become obligated to transfer, deliver and pay over,
and such successor Warrant Agent shall be entitled to receive, all moneys,
securities and other property on deposit with or held by such predecessor, as
Warrant Agent hereunder.
(e) Any corporation into which the Warrant Agent hereunder may be merged or
converted or any corporation with which the Warrant Agent may be consolidated,
or any corporation resulting from any merger, conversion or consolidation to
which the Warrant Agent shall be a party, or any corporation to which the
Warrant agent shall sell or otherwise transfer all or substantially all the
assets and business of the Warrant Agent, provided that is shall be qualified as
aforesaid, shall be the successor Warrant Agent under this Agreement without the
execution or filing of any paper or any further act on the part of the parties
hereto.
ARTICLE 6
MISCELLANEOUS
6.1 Supplements and Amendments. This Agreement may be amended or
supplemented from time to time by the parties hereto, without the consent of the
holder of any Warrant Certificate, for the purpose of curing any ambiguity, or
of curing, correcting or supplementing any defective provision contained herein,
or in regard to matters or questions arising under this Agreement as the Company
and the Warrant Agent may deem necessary or desirable, provided such action
shall not adversely affect the interest of the holders of the Warrant
Certificates.
6.2 Notices and Demands to the Company and Warrant Agent. If the Warrant
Agent shall receive any notice or demand addressed to the Company by the holder
of a Warrant Certificate pursuant to the provisions of the Warrant Certificates,
the Warrant Agent shall promptly forward such notice or demand to the Company.
6.3 Addresses. Any communication to the Warrant Agent with respect to this
Agreement shall be addressed to the address set forth in the Warrant Agreement,
and any such communication to the Company shall be addressed to the Company at
the following address:
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EEX Corporation
2500 CityWest Blvd., Suite 1400
Houston, TX 77042
Attention: Chief Financial Officer
or such other address as shall be specified in writing by the Warrant Agent or
by the Company.
6.4 Delivery of Prospectus. If the Company is required under applicable
federal or state securities laws to deliver a prospectus upon exercise of
Warrants, the Company will furnish to the Warrant Agent sufficient copies of a
prospectus, and the Warrant Agent agrees that upon the exercise of any Warrant
Certificate by the holder thereof, the Warrant Agent will deliver to such
holder, prior to or concurrently with the delivery of the Shares issued upon
such exercise, a copy of the prospectus.
6.5 Obtaining of Governmental Approvals. The Company will from time to time
take all action that may be necessary to obtain and keep effective any and all
permits, consents and approvals of governmental agencies and authorities and
securities acts filings under federal and state laws, which may be or become
requisite in connection with the issuance, sale, transfer and delivery of the
Warrant Certificates, the exercise of the Warrants, and the issuance, sale,
transfer and delivery of the Shares issued upon exercise of the Warrants or upon
the expiration of the period during which the Warrants are exercisable.
6.6 Persons Having Rights under Warrant Agreement. Nothing in this
Agreement is intended, or shall be construed, to confer upon, or give to, any
person or corporation other than the Company, the Warrant Agent and the holders
of the Warrant Certificates, any right, remedy or claim under or by reason of
this Agreement or of any covenant, condition, stipulation, promise or agreement
hereof. All covenants, conditions, stipulations, promises and agreements
contained in this Agreement shall be for the sole and exclusive benefit of the
Company, the Warrant Agent and their successors and of the holders of the
Warrant Certificates.
6.7 Headings. The descriptive headings of the several Articles and Sections
of this Agreement are inserted for convenience only and shall not control or
affect the meaning or construction of any of the provisions hereof.
6.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
6.9 Inspection of Agreement. A copy of this Agreement shall be available at
all reasonable times at the principal corporate trust office of the Warrant
Agent for inspection by the holder of any Warrant Certificate. The Warrant Agent
may require such holder to submit his Warrant Certificate for inspection by it.
6.10 Governing Law. This Agreement and each Warrant Certificate issued
hereunder shall be deemed to be a contract made under the laws of the State of
New York without regard to the conflicts of laws principals and for all purposes
shall be construed in accordance with the laws of such State.
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6.11 Successors. All the covenants and provisions of this Agreement by or
for the benefit of the Company or the Warrant Agent shall bind and inure to the
benefit of their respective successors and assigns hereunder.
6.12 Termination. This Agreement shall terminate at the close of business
on the Expiration Date. Notwithstanding the foregoing, this Agreement will
terminate on any earlier date when the Warrants have been exercised.
17
[AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. LETTERHEAD]
EXHIBIT 5.1
October 13, 1998
EEX Corporation
2500 CityWest Blvd.
Suite 1400
Houston, TX 77042
Ladies and Gentlemen:
We have acted as counsel to EEX Corporation, a Texas corporation (the
"Company"), in connection with the filing of a registration statement on Form
S-3 (the "Registration Statement") with the Securities and Exchange Commission
pursuant to the Securities Act of 1933, as amended, for the registration of the
sale from time to time of up to $300,000,000 aggregate amount of (i) senior debt
securities and senior subordinated debt securities of the Company (collectively,
the "Debt Securities"), (ii) preferred stock, no par value, of the Company (the
"Preferred Stock"), (iii) common stock, par value $0.01 per share, of the
Company (the "Common Stock"), and (iv) warrants of the Company to purchase
Common Stock, Preferred Stock or Debt Securities (the "Warrants").
The senior Debt Securities are to be issued pursuant to an Indenture (the
"Senior Indenture") between the Company and The Bank of New York, as trustee.
The senior subordinated Debt Securities are to be issued pursuant to an
Indenture (the "Subordinated Indenture") between the Company and Chase Bank of
Texas, National Association, as trustee. The Bank of New York, in its capacity
as trustee under the Senior Indenture, and Chase Bank of Texas, National
Association, in its capacity as trustee under the Subordinated Indenture, are
referred to herein collectively as the "Trustee," and the Senior Indenture and
Subordinated Indenture are referred to herein collectively as the "Indentures."
We have, as counsel, examined such corporate records, certificates and
other documents and reviewed such questions of law as we have deemed necessary,
relevant or appropriate to enable us to render the opinions expressed below. In
rendering such opinions, we have assumed the genuineness of all signatures and
the authenticity of all documents examined by us. As to
<PAGE>
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
EEX Corporation
October 13, 1998
Page 2
various questions of fact material to such opinions, we have relied upon
representations of the Company.
Based upon such examination and representations, we advise you that, in our
opinion:
1. Assuming that the Indentures, any Debt Securities and any supplemental
indentures to be entered into in connection with the issuance of such Debt
Securities have been duly authorized, executed and delivered, when (i) a
supplemental indenture or a Board Resolution (as defined in each Indenture) in
respect of the Debt Securities has been duly authorized, executed and delivered,
(ii) the terms of the Debt Securities have been duly established in accordance
with the applicable Indenture and the applicable supplemental indenture or a
Board Resolution (as defined in each Indenture) relating to such Debt Securities
so as not to violate any applicable law or result in a default under or breach
of any agreement or instrument binding upon the Company and so as to comply with
any requirement or restriction imposed by any court or governmental or
regulatory body having jurisdiction over the Company, and (iii) the Debt
Securities have been duly executed and authenticated in accordance with the
applicable Indenture and the applicable supplemental indenture or a Board
Resolution (as defined in each Indenture) relating to such Debt Securities and
duly issued and delivered by the Company for valid consideration in the manner
contemplated in the Registration Statement and any prospectus supplement
relating thereto, the Debt Securities (including any Debt Securities duly issued
(a) upon exchange or conversion of any shares of Preferred Stock that are
exchangeable or convertible into Debt Securities or (b) upon the exercise of any
Warrants exercisable for Debt Securities) will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms.
2. Assuming that a Warrant Agreement relating to the Warrants (the "Warrant
Agreement") has been duly authorized, when (i) the Warrant Agreement has been
duly executed and delivered, (ii) the terms of the Warrants and of their
issuance and sale have been duly established in conformity with the Warrant
Agreement relating to such Warrants so as not to violate any applicable law or
result in a default under or breach of any agreement or instrument binding upon
the Company and so as to comply with any requirement or restriction imposed by
any court or governmental or regulatory body having jurisdiction over the
Company, and (iii) the Warrants have been duly executed and countersigned in
accordance with the Warrant Agreement relating to such Warrants, and issued and
sold for valid consideration in the form and in the manner contemplated in the
Registration Statement and any prospectus supplement relating thereto, such
Warrants will constitute valid and binding obligations of the Company,
enforceable in accordance with their terms.
3. Upon designation of the relative rights, preferences and limitations of
any series of Preferred Stock by the Board of Directors of the Company in
conformity with applicable law and the proper filing with the Secretary of State
of the State of Texas of a Statement of Designations, Preferences and Rights
relating to such series of Preferred Stock, after all necessary corporate action
on the part of the Company has been taken to authorize the issuance
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Akin, Gump, Strauss, Hauer & Feld, L.L.P.
EEX Corporation
October 13, 1998
Page 3
and sale of such series of Preferred Stock proposed to be sold by the Company,
and when such shares of Preferred Stock are paid for, issued and delivered in
accordance with the applicable underwriting or other agreement, such shares of
Preferred Stock (including any shares of Preferred Stock issued (i) upon
exercise of any Warrants for Preferred Stock or (ii) upon conversion of any Debt
Securities that are convertible or exchangeable into Preferred Stock) will be
validly issued, fully paid and non-assessable.
4. When all necessary corporate action on the part of the Company has been
taken to authorize the issuance and sale of such shares of Common Stock proposed
to be sold by the Company, and when such shares of Common Stock are paid for,
issued and delivered in accordance with the applicable underwriting or other
agreement, and in conformity with applicable law, for valid consideration in
excess of the par value per share thereof, such shares of Common Stock
(including any shares of Common Stock issued (i) upon exercise of any Warrants
for Common Stock, (ii) upon conversion of any Debt Securities that are
convertible or exchangeable for Common Stock or (iii) upon the exchange or
conversion of any shares of Preferred Stock that are exchangeable or convertible
into Common Stock) will be validly issued, fully paid and non-assessable.
In connection with the opinions expressed above, we have assumed that, at
or prior to the time of the delivery of any such security, (i) the Board of
Directors shall have duly established the terms of such security and duly
authorized the issuance and sale of such security and, if required by applicable
law, the Company's articles of incorporation, or bylaws, or any agreement to
which the Company is a party or which is binding upon it, the Company's
shareholders (or any subset thereof) or any other required person or entity
shall have authorized such issuance and sale, and in each case such
authorization shall not have been modified or rescinded, (ii) the Registration
Statement shall have been declared effective and such effectiveness shall not
have been terminated or rescinded, and (iii) there shall not have occurred any
change in law affecting the validity or enforceability of such security. We have
also assumed that none of the terms of any security to be established subsequent
to the date hereof, nor the issuance and delivery of such security, nor the
compliance by the Company with the terms of such security, will violate any
applicable law or will result in a violation of any provision of any instrument
or agreement then binding upon the Company, or any restriction imposed by any
court or governmental body having jurisdiction over the Company.
This opinion is subject to the qualifications that the enforceability of
the Indentures, any Debt Securities, any supplemental indentures, any Warrant
and any Warrant Agreement may be limited by and subject to (i) bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium, or
other similar laws now or hereafter in effect relating to or affecting
creditors' rights generally; (ii) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law)
and the exercise of discretionary authority of any court before which a
proceeding may be brought; (iii) commercial reasonableness and unconscionability
and an implied covenant of good faith and fair dealing; (iv) the power of the
courts to award damages in lieu of equitable remedies; and (v) the
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Akin, Gump, Strauss, Hauer & Feld, L.L.P.
EEX Corporation
October 13, 1998
Page 4
limitations imposed by United States federal or state laws or the policies
underlying such laws on any right to indemnification or contribution contained
in such documents.
We express no opinion as to the enforceability of Sections 110, 114 and 515
of each of the Indentures.
The foregoing opinion is limited to the laws of the State of Texas, the
State of New York, and the federal laws of the United States of America.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In addition, we consent to the reference to us under the
caption "Legal Matters" in the prospectus.
This opinion is rendered solely to you in connection with the above matter.
This opinion may not be relied upon by you for any other purpose or relied upon
by or furnished to any other person without our prior written consent.
Very truly yours,
/s/ AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P
--------------------------------------------
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P.
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Amendment No. 1 to Form S-3 No. 333-64427) and related
Prospectus of EEX Corporation for the registration of EEX Corporation debt
securities, preferred stock, warrants, and common stock, and to the
incorporation by reference therein of our report dated February 13, 1998, with
respect to the consolidated financial statements of EEX Corporation and
subsidiaries included in its Annual Report (Form 10-K) for the year ended
December 31, 1997, filed with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Houston, Texas
October 13, 1998
