EXHIBIT 4.1
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R&B FALCON CORPORATION,
AS ISSUER,
and
______________________________________,
AS TRUSTEE
---------------------------
INDENTURE
Dated as of ____________________, _____
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SENIOR DEBT SECURITIES
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE 1
Section 1.01 Definitions 1
Section 1.02 Other Definitions 5
Section 1.03 Incorporation by Reference of Trust
Indenture Act 6
Section 1.04 Rules of Construction 6
ARTICLE II THE SECURITIES 7
Section 2.01 Amount Unlimited; Issuable in Series 7
Section 2.02 Denominations 9
Section 2.03 Forms Generally 9
Section 2.04 Execution, Authentication, Delivery
and Dating 10
Section 2.05 Registrar and Paying Agent 12
Section 2.06 Paying Agent to Hold Money in Trust 12
Section 2.07 Holder Lists 13
Section 2.08 Transfer and Exchange 13
Section 2.09 Replacement Securities 14
Section 2.10 Outstanding Securities 14
Section 2.11 Original Issue Discount and Treasury
Securities 14
Section 2.12 Temporary Securities 15
Section 2.13 Cancellation 15
Section 2.14 Payments; Defaulted Interest 15
Section 2.15 Persons Deemed Owners 16
Section 2.16 Computation of Interest 16
Section 2.17 Global Securities; Book-Entry Provisions 16
ARTICLE III REDEMPTION 18
Section 3.01 Applicability of Article 18
Section 3.02 Notice to the Trustee 18
Section 3.03 Selection of Securities To Be Redeemed 18
Section 3.04 Notice of Redemption 19
Section 3.05 Effect of Notice of Redemption 20
Section 3.06 Deposit of Redemption Price 20
Section 3.07 Securities Redeemed or Purchased in Part 21
Section 3.08 Purchase of Securities 21
Section 3.09 Mandatory and Optional Sinking Funds 21
Section 3.10 Satisfaction of Sinking Fund
Payments with Securities 21
Section 3.11 Redemption of Securities for Sinking Fund 22
ARTICLE IV COVENANTS 22
Section 4.01 Payment of Securities 22
Section 4.02 Maintenance of Office or Agency 23
Section 4.03 SEC Reports; Financial Statements 23
Section 4.04 Compliance Certificate 24
Section 4.05 Corporate Existence 24
Section 4.06 Maintenance of Properties 25
Section 4.07 Payment of Taxes and Other Claims 25
Section 4.08 Waiver of Stay, Extension or Usury Laws 25
Section 4.09 Additional Amounts 26
ARTICLE V SUCCESSORS 26
Section 5.01 Limitations on Mergers and Consolidations 26
Section 5.02 Successor Person Substituted 27
ARTICLE VI DEFAULTS AND REMEDIES 27
Section 6.01 Events of Default 27
Section 6.02 Acceleration 29
Section 6.03 Other Remedies 29
Section 6.04 Waiver of Existing or Past Defaults 30
Section 6.05 Control by Majority 30
Section 6.06 Limitations on Suits 30
Section 6.07 Rights of Holders to Receive Payment 31
Section 6.08 Collection Suit by Trustee 31
Section 6.09 Trustee May File Proofs of Claim 31
Section 6.10 Priorities 32
Section 6.11 Undertaking for Costs 32
ARTICLE VII TRUSTEE 33
Section 7.01 Duties of Trustee 33
Section 7.02 Rights of Trustee 34
Section 7.03 May Hold Securities 34
Section 7.04 Trustee's Disclaimer 35
Section 7.05 Notice of Defaults 35
Section 7.06 Reports by Trustee to Holders 35
Section 7.07 Compensation and Indemnity 35
Section 7.08 Replacement of Trustee 36
Section 7.09 Successor Trustee by Merger, etc 38
Section 7.10 Eligibility; Disqualification 38
Section 7.11 Preferential Collection of Claims
Against Company 39
ARTICLE VIII DISCHARGE OF INDENTURE 39
Section 8.01 Termination of Company's Obligations 39
Section 8.02 Application of Trust Money 43
Section 8.03 Repayment to Company 43
Section 8.04 Reinstatement 43
ARTICLE IX SUPPLEMENTAL INDENTURES AND AMENDMENTS 44
Section 9.01 Without Consent of Holders 44
Section 9.02 With Consent of Holders 45
Section 9.03 Compliance with Trust Indenture Act 47
Section 9.04 Revocation and Effect of Consents 47
Section 9.05 Notation on or Exchange of Securities 48
Section 9.06 Trustee to Sign Amendments, etc 48
ARTICLE X MISCELLANEOUS 48
Section 10.01 Trust Indenture Act Controls 48
Section 10.02 Notices 48
Section 10.03 Communication by Holders with Other
Holders 50
Section 10.04 Certificate and Opinion as to
Conditions Precedent 50
Section 10.05 Statements Required in Certificate
or Opinion 50
Section 10.06 Rules by Trustee and Agents 51
Section 10.07 Legal Holidays 51
Section 10.08 No Recourse Against Others 51
Section 10.09 Governing Law 51
Section 10.10 No Adverse Interpretation of Other
Agreements 51
Section 10.11 Successors 52
Section 10.12 Severability 52
Section 10.13 Counterpart Originals 52
Section 10.14 Table of Contents; Headings; etc 52
Section 10.15 Agent for Service of Process 52
INDENTURE dated as of ,
between R&B Falcon Corporation, a Delaware corporation (the
"Company"), and _________________________, a _________________,
as trustee (the "Trustee").
Each party agrees as follows for the benefit of the
other party and for the equal and ratable benefit of the Holders
of the Company's unsecured debentures, notes or other evidences
of indebtedness (the "Securities") to be issued from time to time
in one or more series as provided in this Indenture:
ARTICLE I
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 Definitions.
"Additional Amounts" means any additional amounts
required by the express terms of a Security or by or pursuant to
a Board Resolution, under circumstances specified therein or
pursuant thereto, to be paid by the Company with respect to
certain taxes, assessments or other governmental charges imposed
on certain Holders and that are owing to such Holders.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by, or
under direct or indirect common control with, such specified
Person. For purposes of this definition, "control" of a Person
shall mean the power to direct the management and policies of
such Person, directly or indirectly, whether through the
ownership of voting securities, by contract or otherwise, and the
terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Agent" means any Registrar or Paying Agent.
"Bankruptcy Law" means Title 11 of the United States
Code or any similar federal, state or foreign law for the relief
of debtors.
"Board of Directors" means the Board of Directors of
the Company or any committee thereof duly authorized, with
respect to any particular matter, to act by or on behalf of the
Board of Directors of the Company.
"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 any day that is not a Legal
Holiday.
"Capital Stock" of any Person means and includes any
and all shares, interests, rights to purchase, warrants or
options (whether or not currently exercisable), participations or
other equivalents of or interests (however designated) in the
equity (which includes, but is not limited to, common stock,
preferred stock and partnership and joint venture interests) of
such Person (excluding any debt securities that are convertible
into, or exchangeable for, such equity).
"Common Equity" of any Person means and includes all
Capital Stock of such Person that is generally entitled to
(i) vote in the election of directors of such Person or (ii) if
such Person is not a corporation, vote or otherwise participate
in the selection of the governing body, partners, managers or
others that will control the management and policies of such
Person.
"Company" means the Person named as the "Company" in
the first paragraph of this instrument until a successor
corporation shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Company" shall mean
such successor corporation.
"Company Order" and "Company Request" mean,
respectively, a written order or request signed in the name of
the Company by two Officers of the Company, and delivered to the
Trustee.
"Corporate Trust Office of the Trustee" shall be the
address specified in Section 10.02 and may be located at such
other address as the Trustee may give notice to the Company.
"Default" means any event, act or condition that is, or
after notice or the passage of time or both would be, an Event of
Default.
"Depositary" means, with respect to the Securities of
any series issuable or issued in whole or in part in global form,
the Person specified pursuant to Section 2.01 hereof as the
initial Depositary with respect to the Securities of such series,
until a successor shall have been appointed and become such
pursuant to the applicable provision of this Indenture, and
thereafter, "Depositary" shall mean or include such successor.
"Dollar" or "$" means a dollar or other equivalent unit
in such coin or currency of the United States as at the time
shall be legal tender for the payment of public and private debt.
"Exchange Act" means the Securities Exchange Act of
1934, as amended, and any successor statute.
"GAAP" means generally accepted accounting principles
in the United States set forth in the opinions and pronouncements
of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a
significant segment of the accounting profession of the United
States, as in effect from time to time.
"Global Security" of any series means a Security of
that series that is issued in global form in the name of the
Depositary with respect thereto or its nominee.
"Government Obligations" means, with respect to a
series of Securities, direct noncallable obligations of the
government that issues the currency in which the Securities of
the series are payable for the payment of which the full faith
and credit of such government is pledged, or noncallable
obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of such government, the payment of
which is fully and unconditionally guaranteed as a full faith and
credit obligation by such government.
"Holder" means a Person in whose name a Security is
registered.
"Indenture" means this instrument as originally
executed or as it may from time to time be amended or
supplemented by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof, and
includes the terms of particular series of Securities established
as contemplated by Section 2.01.
"interest" means, with respect to an Original Issue
Discount Security that by its terms bears interest only after
Maturity, interest payable after Maturity.
"Interest Payment Date," when used with respect to any
Security, has the meaning assigned to such term in the Security
as contemplated by Section 2.01.
"Issue Date" means, with respect to Securities of a
series, the date on which the Securities of such series are
originally issued under this Indenture.
"Legal Holiday" means a Saturday, a Sunday or a day on
which banking institutions in any of The City of New York, New
York, Houston, Texas or a Place of Payment are authorized or
obligated by law, regulation or executive order to remain closed.
"Maturity" means, with respect to any Security, the
date on which the principal of such Security or an installment of
principal becomes due and payable as therein or herein provided,
whether at the Stated Maturity thereof, or by declaration of
acceleration, call for redemption or otherwise.
"Officer" means the Chairman of the Board, the
President, any Vice Chairman of the Board, any Vice President,
the chief financial officer, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Assistant
Secretary of a Person.
"Officers' Certificate" means a certificate signed by
two Officers of a Person, one of whom must be the Person's chief
executive officer, chief financial officer or chief accounting
officer.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. Such counsel may be an
employee of or counsel to the Company or the Trustee.
"Original Issue Discount Security" means any Security
that provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 6.02.
"Person" means any individual, corporation,
partnership, limited liability company, joint venture,
incorporated or unincorporated association, joint stock company,
trust, unincorporated organization or government or other agency
or political subdivision thereof or other entity of any kind.
"Place of Payment" means, with respect to the
Securities of any series, the place or places where, subject to
the provisions of Section 4.02, the principal of, premium (if
any) and interest on the Securities of that series are payable as
specified in accordance with Section 2.01.
"Redemption Date" means, with respect to any Security
to be redeemed, the date fixed for such redemption by or pursuant
to this Indenture.
"Redemption Price" means, with respect to any Security
to be redeemed, the price at which it is to be redeemed pursuant
to this Indenture.
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning stated in the preamble of
this Indenture and more particularly means any Securities
authenticated and delivered under this Indenture.
"Security Custodian" means, with respect to Securities
of a series issued in global form, the Trustee for Securities of
such series, acting in its capacity as custodian with respect to
the Securities of such series, or any successor entity thereto.
"Significant Subsidiary" means any "significant
subsidiary" of the Company, as such term is defined in
Regulation S-X, Title 17, Code of U.S. Federal Regulations
Part 210, as in effect on the date hereof.
"Stated Maturity" means, when used with respect to any
Security or any installment of principal thereof or premium or
interest thereon, the date specified in such Security as the
fixed date on which the principal of such Security or such
installment of principal or premium or interest is due and
payable.
"Subsidiary" means, as to any Person, any corporation,
association or other business entity in which such Person or one
or more of its Subsidiaries or such Person and one or more of its
Subsidiaries own more than 50% of the total combined voting power
of all Common Equity, and any partnership or joint venture if
more than a 50% interest in the profits or capital thereof is
owned by such Person or one or more of its Subsidiaries or such
Person and one or more of its Subsidiaries (unless such
partnership or joint venture can and does ordinarily take major
business actions without the prior approval of such Person or one
or more of its Subsidiaries).
"TIA" means the Trust Indenture Act of 1939, as amended
(15 U.S.C. SS 77aaa-77bbbb), as in effect on the date hereof.
"Trust Officer" means any officer or assistant officer
of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"Trustee" means the Person named as such above until a
successor replaces it in accordance with the applicable
provisions of this Indenture, and thereafter "Trustee" means each
Person who is then a Trustee hereunder, and if at any time there
is more than one such Person, "Trustee" as used with respect to
the Securities of any series means the Trustee with respect to
Securities of that series.
"United States" means the United States of America
(including the States and the District of Columbia) and its
territories, its possessions (including Puerto Rico, the U.S.
Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands) and other areas subject to its
jurisdiction.
"United States Alien" means any Person who, for United
States federal income tax purposes, is a foreign corporation, a
nonresident alien individual, a nonresident alien or foreign
fiduciary of an estate or trust, or a foreign partnership.
"U.S. Government Obligations" means Government
Obligations with respect to Securities payable in Dollars.
Section 1.02 Other Definitions.
Defined
Term in Section
---- ----------
"Bankruptcy Custodian" 6.01
"covenant defeasance" 8.01
"Event of Default" 6.01
"legal defeasance" 8.01
"mandatory sinking fund payment" 3.09
"optional sinking fund payment" 3.09
"Paying Agent" 2.05
"Registrar" 2.05
"Successor" 5.01
Section 1.03 Incorporation by Reference of Trust
Indenture Act.
Whenever this Indenture refers to a provision of the
TIA, the provision is incorporated by reference in and made a
part of this Indenture. The following TIA terms used in this
Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means
the Trustee.
"obligor" on the indenture securities means the Company
or any other obligor on the Securities.
All terms used in this Indenture that are defined by
the TIA, defined by a TIA reference to another statute or defined
by an SEC rule under the TIA have the meanings so assigned to
them.
Section 1.04 Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the
meaning assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in
the plural include the singular;
(5) provisions apply to successive events and
transactions; and
(6) all references in this Indenture to Articles and
Sections are references to the corresponding Articles and
Sections in and of this Indenture.
ARTICLE II
THE SECURITIES
Section 2.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may
be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series.
There shall be established in or pursuant to a Board Resolution,
and set forth, or determined in the manner provided, in an
Officers' Certificate or in a Company Order, or established in
one or more indentures supplemental hereto, prior to the issuance
of Securities of any series:
(1) the title of the Securities of the series (which
shall distinguish the Securities of the series from the
Securities of all other series);
(2) any limit upon the aggregate principal amount of
the Securities of the series that may be authenticated and
delivered under this Indenture (except for Securities
authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Securities of
the series pursuant to Section 2.08, 2.09, 2.12, 2.17, 3.07
or 9.05);
(3) whether any Securities of the series are to be
issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent
global form, as Global Securities or otherwise, and, if so,
whether beneficial owners of interests in any such Global
Security may exchange such interests for Securities of such
series and of like tenor of any authorized form and
denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in
Section 2.17, and the initial Depositary and Security
Custodian, if any, for any Global Security or Securities of
such series;
(4) (i) if other than provided herein, the Person to
whom any interest on Securities of the series shall be
payable, and (ii) the manner in which any interest payable
on a temporary Global Security on any Interest Payment Date
will be paid if other than in the manner provided in
Section 2.14;
(5) the date or dates on which the principal of (and
premium, if any, on) the Securities of the series is payable
or the method of determination thereof;
(6) the rate or rates, or the method of determination
thereof, at which the Securities of the series shall bear
interest, if any, whether and under what circumstances
Additional Amounts with respect to such Securities shall be
payable, the date or dates from which any interest shall
accrue, the Interest Payment Dates on which any such
interest shall be payable and the record date for the
interest payable on any Securities on any Interest Payment
Date;
(7) the place or places where, subject to the
provisions of Section 4.02, the principal of, premium (if
any) and interest on and any Additional Amounts with respect
to the Securities of the series shall be payable;
(8) the period or periods within which, the price or
prices (whether denominated in cash, securities or
otherwise) at which and the terms and conditions upon which
Securities of the series may be redeemed, in whole or in
part, at the option of the Company, if the Company is to
have that option, and the manner in which the Company may
exercise any such option, if different from those set forth
herein;
(9) the obligation, if any, of the Company to redeem,
purchase or repay Securities of the series pursuant to any
sinking fund or analogous provisions or at the option of a
Holder thereof and the period or periods within which, the
price or prices (whether denominated in cash, securities or
otherwise) at which and the terms and conditions upon which
Securities of the series shall be redeemed, purchased or
repaid in whole or in part pursuant to such obligation;
(10) if other than denominations of $1,000 and any
integral multiple thereof, the denomination in which any
Securities of that series shall be issuable;
(11) the form, including Capital Stock, other debt
securities (including Securities), warrants, other equity
securities, or any other securities or property of the
Company or any other Person in which payment of the
principal of, premium (if any) and interest on and any
Additional Amounts with respect to the Securities of the
series shall be payable;
(12) if the amount of payments of principal of, premium
(if any) and interest on and any Additional Amounts with
respect to the Securities of the series may be determined
with reference to any commodities, currencies or indices,
values, rates or prices or any other index or formula, the
manner in which such amounts shall be determined;
(13) if other than the entire principal amount thereof,
the portion of the principal amount of Securities of the
series that shall be payable upon declaration of
acceleration of the Maturity thereof pursuant to
Section 6.02;
(14) any additional means of satisfaction and discharge
of this Indenture and any additional conditions or
limitations to discharge with respect to Securities of the
series pursuant to Article VIII or any modifications of or
deletions from such conditions or limitations;
(15) any deletions or modifications of or additions to
the Events of Default set forth in Section 6.01 or covenants
of the Company set forth in Article IV pertaining to the
Securities of the series;
(16) any restrictions or other provisions with respect
to the transfer or exchange of Securities of the series,
which may amend, supplement, modify or supersede those
contained in this Article II;
(17) if the Securities of the series are to be
convertible into or exchangeable for Capital Stock, other
debt securities (including Securities), warrants, other
equity securities, or any other securities or property of
the Company or any other Person, at the option of the
Company or the Holder or upon the occurrence of any
condition or event, the terms and conditions for such
conversion or exchange; and
(18) any other terms of the series (which terms shall
not be prohibited by the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise
be provided in or pursuant to the Board Resolution referred to
above and (subject to Section 2.03) set forth, or determined in
the manner provided, in the Officers' Certificate or Company
Order referred to above or in any such indenture supplemental
hereto.
If any of the terms of the series are established by
action taken pursuant to a Board Resolution, a copy of an
appropriate record of such action, together with such Board
Resolution, shall be set forth in an Officers' Certificate or
certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery
of the Officers' Certificate or Company Order setting forth the
terms of the series.
Section 2.02 Denominations.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by
Section 2.01. In the absence of any such provisions with respect
to the Securities of any series, the Securities of such series
denominated in Dollars shall be issuable in denominations of
$1,000 and any integral multiples thereof.
Section 2.03 Forms Generally.
The Securities of each series shall be in fully
registered form and in substantially such form or forms
(including temporary or permanent global form) established by or
pursuant to a Board Resolution or in one or more indentures
supplemental hereto. The Securities may have notations, legends
or endorsements required by law, securities exchange rules, the
Company's certificate of incorporation or other similar governing
documents, agreements to which the Company is subject, if any, or
usage (provided that any such notation, legend or endorsement is
in a form acceptable to the Company). A copy of the Board
Resolution establishing the form or forms of Securities of any
series shall be delivered to the Trustee at or prior to the
delivery of the Company Order contemplated by Section 2.04 for
the authentication and delivery of such Securities.
The definitive Securities of each series shall be
printed, lithographed or engraved on steel engraved borders or
may be produced in any other manner, all as determined by the
Officers executing such Securities, as evidenced by their
execution thereof.
The Trustee's certificate of authentication shall be in
substantially the following form:
"This is one of the Securities of the series designated
therein referred to in the within- mentioned Indenture.
_________________________________,
as Trustee
By:
Authorized Signatory".
Section 2.04 Execution, Authentication, Delivery and
Dating.
At least one Officer of the Company shall sign the
Securities of each series on behalf of the Company by manual or
facsimile signature.
If an Officer of the Company whose signature is on a
Security no longer holds that office at the time the Security is
authenticated, the Security shall be valid nevertheless.
A Security shall not be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose until
authenticated by the manual signature of an authorized signatory
of the Trustee, which signature shall be conclusive evidence that
the Security has been authenticated under this Indenture.
The Trustee shall authenticate and deliver Securities
of a series for original issue upon a Company Order for the
authentication and delivery of such Securities or pursuant to
such procedures reasonably acceptable to the Trustee as may be
specified from time to time by Company Order. Such order shall
specify the amount of the Securities of such series to be
authenticated, the date on which the original issue of Securities
of such series is to be authenticated, the name or names of the
initial Holder or Holders and any other terms of the Securities
of such series not otherwise determined. If provided for in such
procedures, such Company Order may authorize (1) authentication
and delivery of Securities of such series for original issue from
time to time, with certain terms (including, without limitation,
the Maturity date or dates, original issue date or dates and
interest rate or rates) that differ from Security to Security and
(2) may authorize authentication and delivery pursuant to oral or
electronic instructions from the Company or its duly authorized
agent, which instructions shall be promptly confirmed in writing.
If the form or terms of the Securities of the series
have been established in or pursuant to one or more Board
Resolutions or any other method permitted by Section 2.01, in
authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive (in addition
to the Company Order referred to above and the other documents
required by Section 10.04), and (subject to Section 7.01) shall
be fully protected in relying upon,
(a) an Officers' Certificate setting forth the Board
Resolution and, if applicable, an appropriate record of any
action taken pursuant thereto, as contemplated by the last
paragraph of Section 2.01; and
(b) an Opinion of Counsel to the effect that:
(i) the form of such Securities has been
established in conformity with the provisions of this
Indenture;
(ii) the terms of such Securities have been
established in conformity with the provisions of this
Indenture; and
(iii) such Securities, when authenticated and
delivered by the Trustee and issued by the Company in
the manner and subject to any conditions specified in
such Opinion of Counsel, will constitute valid and
binding obligations of the Company, enforceable against
the Company in accordance with their terms, except as
the enforceability thereof may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance or other similar laws in effect
from time to time affecting the rights of creditors
generally, and the application of general principles of
equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
If all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Officers'
Certificate and Opinion of Counsel at the time of issuance of
each such Security, but such Officers' Certificate and Opinion of
Counsel shall be delivered at or before the time of issuance of
the first Security of the series to be issued.
The Trustee shall not be required to authenticate such
Securities if the issuance of such Securities pursuant to this
Indenture would affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise
in a manner not reasonably acceptable to the Trustee.
The Trustee may appoint an authenticating agent
acceptable to the Company to authenticate Securities. Unless
limited by the terms of such appointment, an authenticating agent
may authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent
has the same rights as an Agent to deal with the Company or an
Affiliate of the Company.
Each Security shall be dated the date of its
authentication.
Section 2.05 Registrar and Paying Agent.
The Company shall maintain an office or agency for each
series of Securities where Securities of such series may be
presented for registration of transfer or exchange ("Registrar")
and an office or agency where Securities of such series may be
presented for payment ("Paying Agent"). The Registrar shall keep
a register of the Securities of each series and of their transfer
and exchange. The Company may appoint one or more co-registrars
and one or more additional paying agents. The term "Registrar"
includes any co-registrar and the term "Paying Agent" includes
any additional paying agent.
The Company shall enter into an appropriate agency
agreement with any Registrar or Paying Agent not a party to this
Indenture. The agreement shall implement the provisions of this
Indenture that relate to such Agent. The Company shall notify
the Trustee of the name and address of any Agent not a party to
this Indenture. The Company may change any Paying Agent or
Registrar without notice to any Holder. If the Company fails to
appoint or maintain another entity as Registrar or Paying Agent,
the Trustee shall act as such. The Company or any of its
Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar
and Paying Agent.
Section 2.06 Paying Agent to Hold Money in Trust.
With respect to each series of Securities, the Company
shall require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold in trust for the
benefit of Holders of such series or the Trustee all money held
by the Paying Agent for the payment of principal of, premium, if
any, or interest on or any Additional Amounts with respect to
Securities of such series and will notify the Trustee of any
default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to
pay all money held by it to the Trustee and to account for any
funds disbursed. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee and to account
for any funds disbursed. Upon payment over to the Trustee and
upon accounting for any funds disbursed, the Paying Agent (if
other than the Company or a Subsidiary of the Company) shall have
no further liability for the money. If the Company or a
Subsidiary of the Company acts as Paying Agent with respect to a
series of Securities, it shall segregate and hold in a separate
trust fund for the benefit of the Holders of such series all
money held by it as Paying Agent. Each Paying Agent shall
otherwise comply with TIA S 317(b).
Section 2.07 Holder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of
the names and addresses of Holders of each series of Securities
and shall otherwise comply with TIA S 312(a). If the Trustee is
not the Registrar with respect to a series of Securities, the
Company shall furnish to the Trustee at least seven Business Days
before each Interest Payment Date with respect to such series of
Securities, and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee
may reasonably require of the names and addresses of Holders of
such series, and the Company shall otherwise comply with TIA
S 312(a).
Section 2.08 Transfer and Exchange.
Except as set forth in Section 2.17 or as may be
provided pursuant to Section 2.01, when Securities of any series
are presented to the Registrar with the request to register the
transfer of such Securities or to exchange such Securities for an
equal principal amount of Securities of the same series of like
tenor and of other authorized denominations, the Registrar shall
register the transfer or make the exchange as requested if its
requirements and the requirements of this Indenture for such
transactions are met; provided, however, that the Securities
presented or surrendered for registration of transfer or exchange
shall be duly endorsed or accompanied by a written instruction of
transfer in form reasonably satisfactory to the Registrar duly
executed by the Holder thereof or by his attorney, duly
authorized in writing, on which instruction the Registrar can
rely.
To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate
Securities at the Registrar's written request and submission of
the Securities (other than Global Securities). No service charge
shall be made to a Holder for any registration of transfer or
exchange (except as otherwise expressly permitted herein), but
the Company may require payment of a sum sufficient to cover any
transfer tax or similar governmental charge payable in connection
therewith (other than such transfer tax or similar governmental
charge payable upon exchanges pursuant to Section 2.12, 3.07 or
9.05). The Trustee shall authenticate Securities in accordance
with the provisions of Section 2.04. Notwithstanding any other
provisions of this Indenture to the contrary, the Company shall
not be required to register the transfer or exchange of (a) any
Security selected for redemption in whole or in part pursuant to
Article III, except the unredeemed portion of any Security being
redeemed in part or (b) any Security during the period beginning
15 Business Days before the mailing of notice of any offer to
repurchase Securities of the series required pursuant to the
terms thereof or of redemption of Securities of a series to be
redeemed and ending at the close of business on the date of
mailing.
Section 2.09 Replacement Securities.
If any mutilated Security of a series is surrendered to
the Trustee, or if the Holder of a Security of a series claims
that the Security has been destroyed, lost or stolen and the
Company and the Trustee receive evidence to their satisfaction
of the destruction, loss or theft of such Security, the Company
shall issue and the Trustee shall authenticate a replacement
Security of the same series if the Trustee's requirements are
met. If any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, pay such
Security. If required by the Trustee or the Company, such Holder
must furnish an indemnity bond that is sufficient in the judgment
of the Trustee and the Company to protect the Company, the
Trustee, any Agent or any authenticating agent from any loss that
any of them may suffer if a Security is replaced. The Company
and the Trustee may charge a Holder for their expenses in
replacing a Security.
Every replacement Security is an additional obligation
of the Company.
Section 2.10 Outstanding Securities.
The Securities of a series outstanding at any time are
all the Securities of that series authenticated by the Trustee
except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global
Security effected by the Trustee hereunder and those described in
this Section 2.10 as not outstanding.
If a Security is replaced pursuant to Section 2.09, it
ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a bona
fide purchaser.
If the principal amount of any Security is considered
paid under Section 4.01, it ceases to be outstanding and interest
on it ceases to accrue.
A Security does not cease to be outstanding because the
Company or an Affiliate of the Company holds the Security.
Section 2.11 Original Issue Discount and Treasury
Securities.
In determining whether the Holders of the required
principal amount of Securities have concurred in any direction,
amendment, supplement, waiver or consent, (a) the principal
amount of an Original Issue Discount Security shall be the
principal amount thereof that would be due and payable as of the
date of such determination upon acceleration of the Maturity
thereof pursuant to Section 6.02 and (b) 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,
except that, for the purpose of determining whether the Trustee
shall be protected in relying upon any such direction, amendment,
supplement, waiver or consent, only Securities with respect to
which the Trustee has received written notice that they are so
owned shall be so disregarded.
Section 2.12 Temporary Securities.
Until definitive Securities of any series are ready for
delivery, the Company may prepare and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be
substantially in the form of definitive Securities, but may have
variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate definitive Securities
in exchange for temporary Securities. Until so exchanged, the
temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.
Section 2.13 Cancellation.
The Company at any time may deliver Securities to the
Trustee for cancellation. The Registrar and the Paying Agent
shall forward to the Trustee any Securities surrendered to them
for registration of transfer, exchange, payment or redemption or
for credit against any sinking fund payment. The Trustee shall
cancel all Securities surrendered for registration of transfer,
exchange, payment, redemption, replacement or cancellation or for
credit against any sinking fund. Unless the Company shall direct
in writing that canceled Securities be returned to it, after
written notice to the Company all canceled Securities held by the
Trustee shall be disposed of in accordance with the usual
disposal procedures of the Trustee, and the Trustee shall
maintain a record of their disposal. The Company may not issue
new Securities to replace Securities that have been paid or that
have been delivered to the Trustee for cancellation.
Section 2.14 Payments; Defaulted Interest.
Unless otherwise provided as contemplated by
Section 2.01 with respect to Securities of any series, interest
(except defaulted interest) on any Security that is payable, and
is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Persons who are registered Holders of
that Security at the close of business on the record date next
preceding such Interest Payment Date. Unless otherwise provided
with respect to the Securities of any series, the Company will
pay the principal of, premium (if any) and interest on and any
Additional Amounts with respect to the Securities in Dollars.
The Company may, however, pay such amounts (1) by wire transfer
with respect to Global Securities or (2) by check payable in such
money mailed to a Holder's registered address with respect to any
Securities.
If the Company defaults in a payment of interest on the
Securities of any series, it shall pay the defaulted interest in
any lawful manner plus, to the extent lawful, interest on the
defaulted interest, in each case at the rate provided in the
Securities of such series and in Section 4.01. The Company may
pay the defaulted interest to the Persons who are Holders on a
subsequent special record date. At least 15 days before any
special record date selected by the Company, the Company (or the
Trustee, in the name of and at the expense of the Company upon
20 days' prior written notice from the Company setting forth such
record date and the interest amount to be paid) shall mail to
Holders of any such series of Securities a notice that states the
special record date, the related payment date and the amount of
such interest to be paid.
Section 2.15 Persons Deemed Owners.
The Company, the Trustee, any Agent and any
authenticating agent may treat the Person in whose name any
Security is registered as the owner of such Security for the
purpose of receiving payments of principal of, premium (if any)
or interest on, or any Additional Amounts with respect to such
Security and for all other purposes. None of the Company, the
Trustee, any Agent or any authenticating agent shall be affected
by any notice to the contrary.
Section 2.16 Computation of Interest.
Except as otherwise specified as contemplated by
Section 2.01 for Securities of any series, interest on the
Securities of each series shall be computed on the basis of a
year comprising twelve 30-day months.
Section 2.17 Global Securities; Book-Entry
Provisions.
If Securities of a series are issuable in global form
as a Global Security, as contemplated by Section 2.01, then,
notwithstanding clause (10) of Section 2.01 and the provisions of
Section 2.02, any such Global Security shall represent such of
the outstanding Securities of such series as shall be specified
therein and may provide that it shall represent the aggregate
amount of outstanding Securities from time to time endorsed
thereon and that the aggregate amount of outstanding Securities
represented thereby may from time to time be reduced to reflect
exchanges or redemptions. Any endorsement of a Global Security
to reflect the amount, or any increase or decrease in the amount,
of outstanding Securities represented thereby shall be made by
the Trustee in such manner and upon instructions given by such
Person or Persons as shall be specified in such Security or in a
Company Order to be delivered to the Trustee pursuant to
Section 2.04. Subject to the provisions of Section 2.04 and, if
applicable, Section 2.12, the Trustee shall deliver and redeliver
any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified in such
Security or in the applicable Company Order. With respect to the
Securities of any series that are represented by a Global
Security, the Company authorizes the execution and delivery by
the Trustee of a letter of representations or other similar
agreement or instrument in the form customarily provided for by
the Depositary appointed with respect to such Global Security.
Any Global Security may be deposited with the Depositary or its
nominee, or may remain in the custody of the Security Custodian
therefor pursuant to a FAST Balance Certificate Agreement or
similar agreement between the Trustee and the Depositary. If a
Company Order has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or
delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 10.05 and need not be
accompanied by an Opinion of Counsel.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect
to any Global Security held on their behalf by the Depositary, or
the Security Custodian as its custodian, or under such Global
Security, and the Depositary may be treated by the Company, the
Security Custodian and any agent of the Company or the Trustee as
the absolute owner of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, (i) the registered
holder of a Global Security of any series may grant proxies and
otherwise authorize any Person, including Agent Members and
Persons that may hold interests through Agent Members, to take
any action that a Holder of such series is entitled to take under
this Indenture or the Securities of such series and (ii) nothing
herein shall prevent the Company, the Security Custodian or any
agent of the Company or the Security Custodian, from giving
effect to any written certification, proxy or other authorization
furnished by the Depositary or shall impair, as between the
Depositary and its Agent Members, the operation of customary
practices governing the exercise of the rights of a beneficial
owner of any Security.
Notwithstanding Section 2.08, and except as otherwise
provided pursuant to Section 2.01, transfers of a Global Security
shall be limited to transfers of such Global Security in whole,
but not in part, to the Depositary, its successors or their
respective nominees. Interests of beneficial owners in a Global
Security may be transferred in accordance with the rules and
procedures of the Depositary. Securities of any series shall be
transferred to all beneficial owners of a Global Security of such
series in exchange for their beneficial interests in that Global
Security if, and only if, either (1) the Depositary notifies the
Company that it is unwilling or unable to continue as Depositary
for the Global Security of such series and a successor Depositary
is not appointed by the Company within 90 days of such notice,
(2) an Event of Default has occurred with respect to such series
and is continuing and the Registrar has received a request from
the Depositary to issue Securities of such series in lieu of all
or a portion of that Global Security (in which case the Company
shall deliver Securities of such series within 30 days of such
request) or (3) the Company determines not to have the Securities
of such series represented by a Global Security.
In connection with any transfer of a portion of the
beneficial interest in a Global Security of any series to
beneficial owners pursuant to this Section 2.17, the Registrar
shall reflect on its books and records the date and a decrease in
the principal amount of the Global Security of that series in an
amount equal to the principal amount of the beneficial interest
in the Global Security of that series to be transferred, and the
Company shall execute, and the Trustee upon receipt of a Company
Order for the authentication and delivery of Securities of that
series shall authenticate and deliver, one or more Securities of
the same series of like tenor and amount.
In connection with the transfer of all the beneficial
interests in a Global Security of any series to beneficial owners
pursuant to this Section 2.17, the Global Security shall be
deemed to be surrendered to the Trustee for cancellation, and the
Company shall execute, and the Trustee shall authenticate and
deliver, to each beneficial owner identified by the Depositary in
exchange for its beneficial interest in the Global Security, an
equal aggregate principal amount of Securities of that series of
authorized denominations.
Neither the Company nor the Trustee will have any
responsibility or liability for any aspect of the records
relating to, or payments made on account of, Securities of any
series by the Depositary, or for maintaining, supervising or
reviewing any records of the Depositary relating to such
Securities. Neither the Company nor the Trustee shall be liable
for any delay by the related Global Security Holder or the
Depositary in identifying the beneficial owners, and each such
Person may conclusively rely on, and shall be protected in
relying on, instructions from such Global Security Holder or the
Depositary for all purposes (including with respect to the
registration and delivery, and the respective principal amounts,
of the Securities to be issued).
Notwithstanding the provisions of Sections 2.03
and 2.14, unless otherwise specified as contemplated by
Section 2.01 with respect to Securities of any series, payment of
principal of and premium (if any) and interest on and any
Additional Amounts with respect to any Global Security shall be
made to the Person or Persons specified therein.
ARTICLE III
REDEMPTION
Section 3.01 Applicability of Article.
Securities of any series that are redeemable before
their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by
Section 2.01 for Securities of any series) in accordance with
this Article III.
Section 3.02 Notice to the Trustee.
If the Company elects to redeem Securities of any
series pursuant to this Indenture, it shall notify the Trustee of
the Redemption Date and principal amount of Securities of such
series to be redeemed. The Company shall so notify the Trustee
at least 45 days before the Redemption Date (unless a shorter
notice shall be satisfactory to the Trustee) by delivering to the
Trustee an Officers' Certificate stating that such redemption
will comply with the provisions of this Indenture and of the
Securities of such series. Any such notice may be canceled at
any time prior to the mailing of such notice of such redemption
to any Holder of the Securities of such series and shall
thereupon be void and of no effect.
Section 3.03 Selection of Securities To Be Redeemed.
If less than all the Securities of any series are to be
redeemed, 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, either pro rata, by lot or by
such other method as the Trustee shall deem fair and appropriate.
Such redemption may provide for the selection for redemption of
portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of
the principal amount of Securities of such series of a
denomination larger than the minimum authorized denomination for
Securities of that series or of the principal amount of Global
Securities of such series.
The Trustee shall promptly notify the Company and the
Registrar in writing of the Securities selected for redemption
and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of
Securities of any series shall relate, in the case of any of the
Securities redeemed or to be redeemed only in part, to the
portion of the principal amount thereof which has been or is to
be redeemed.
Section 3.04 Notice of Redemption.
Notice of redemption shall be given by first-class
mail, postage prepaid, mailed not less than 30 nor more than
60 days prior to the Redemption Date, to each Holder of
Securities of a series to be redeemed, at the address of such
Holder appearing in the register of Securities for such series
maintained by the Registrar.
All notices of redemption shall identify the Securities
to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) that, unless the Company defaults in making the
redemption payment, interest on Securities called for
redemption ceases to accrue on and after the Redemption Date,
and the only remaining right of the Holders of such
Securities is to receive payment of the Redemption Price plus
accrued interest on and any Additional Amounts with respect
to such Securities upon surrender to the Paying Agent of the
Securities redeemed;
(4) if any Security is to be redeemed in part, the
portion of the principal amount thereof to be redeemed and
that on and after the Redemption Date, upon surrender for
cancellation of such Security to the Paying Agent, a new
Security or Securities in the aggregate principal amount
equal to the unredeemed portion thereof will be issued
without charge to the Holder;
(5) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption
Price plus accrued interest on and any Additional Amounts
with respect to such Securities and the name and address of
the Paying Agent;
(6) that the redemption is for a sinking or analogous
fund, if such is the case; and
(7) the CUSIP number, if any, relating to such
Securities.
Notice of redemption of Securities to be redeemed at
the election of the Company shall be given by the Company or, at
the Company's written request, by the Trustee in the name and at
the expense of the Company.
If at the time notice of redemption shall be given the
Company shall not have deposited with a Paying Agent and/or
irrevocably directed the Trustee or a Paying Agent to apply, from
money held by it available to be used for the redemption of
Securities that are to be redeemed, an amount in cash sufficient
to redeem all of the Securities called for redemption, including
accrued interest to the Redemption Date, such notice shall state
that it is subject to the receipt of the redemption monies by the
Trustee or a Paying Agent on or before the Redemption Date and
such notice shall be of no effect unless such monies are so
received before such date.
Section 3.05 Effect of Notice of Redemption.
Once notice of redemption is mailed, subject to the
last paragraph of Section 3.04, Securities called for redemption
become due and payable on the Redemption Date and at the
Redemption Price. Upon surrender to the Paying Agent, such
Securities called for redemption shall be paid at the Redemption
Price plus accrued interest on and any Additional Amounts with
respect to such Securities, but interest installments whose
maturity is on or prior to such Redemption Date will be payable
on the relevant Interest Payment Dates to the Holders of record
at the close of business on the relevant record dates specified
pursuant to Section 2.01.
Section 3.06 Deposit of Redemption Price.
On or prior to any Redemption Date, the Company shall
deposit with the Trustee or the Paying Agent (or, if the Company
is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 2.06) an amount of money in same day funds
sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued
interest on and any Additional Amounts with respect to, the
Securities or portions thereof which are to be redeemed on that
date, other than Securities or portions thereof called for
redemption on that date which have been delivered by the Company
to the Trustee for cancellation.
If the Company complies with the preceding paragraph,
then, unless the Company defaults in the payment of such
Redemption Price, plus accrued interest on and any Additional
Amounts with respect to such Securities, interest on the
Securities to be redeemed will cease to accrue on and after the
applicable Redemption Date, whether or not such Securities are
presented for payment, and the Holders of such Securities shall
have no further rights with respect to such Securities except for
the right to receive the Redemption Price, plus accrued interest
on and any Additional Amounts with respect to such Securities,
upon surrender of such Securities. If any Security called for
redemption shall not be so paid upon surrender thereof for
redemption, the principal of and premium, if any, any Additional
Amounts, and accrued interest thereon, to the extent lawful,
shall, until paid, bear interest from the Redemption Date at the
rate specified pursuant to Section 2.01 or provided in the
Securities or, in the case of Original Issue Discount Securities,
such Securities' initial yield to Maturity.
Section 3.07 Securities Redeemed or Purchased in
Part.
Upon surrender to the Paying Agent of a Security of any
series to be redeemed in part, the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such
Security without service charge a new Security or Securities of
the same series and of any authorized denomination as requested
by such Holder in aggregate principal amount equal to, and in
exchange for, the unredeemed portion of the principal of the
Security so surrendered that is not redeemed.
Section 3.08 Purchase of Securities.
Unless otherwise specified as contemplated by
Section 2.01, the Company and any Affiliate of the Company may at
any time purchase or otherwise acquire Securities of any series
in the open market or by private agreement. Such acquisition
shall not operate as or be deemed for any purpose to be a
redemption of the indebtedness represented by such Securities.
Any Securities purchased or acquired by the Company may be
delivered to the Trustee for cancellation and, upon such
cancellation, the indebtedness represented thereby shall be
deemed to be satisfied. Section 2.13 shall apply to all
Securities so delivered.
Section 3.09 Mandatory and Optional Sinking Funds.
The minimum amount of any sinking fund payment provided
for by the terms of Securities of any series is herein referred
to as a "mandatory sinking fund payment," and any payment in
excess of such minimum amount provided for by the terms of
Securities of any series is herein referred to as an "optional
sinking fund payment." Unless otherwise provided by the terms of
Securities of any series, the cash amount of any sinking fund
payment may be subject to reduction as provided in Section 3.10.
Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of
Securities of such series and by this Article III.
Section 3.10 Satisfaction of Sinking Fund Payments
with Securities.
The Company may deliver outstanding Securities of a
series (other than any previously called for redemption) and may
apply as a credit Securities of a series that have been redeemed
either at the election of the Company pursuant to the terms of
such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities,
in each case in satisfaction of all or any part of any sinking
fund payment with respect to the Securities of such series
required to be made pursuant to the terms of such series of
Securities; provided that such Securities have not been
previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the Redemption Price
specified in such Securities for redemption through operation of
the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly.
Section 3.11 Redemption of Securities for Sinking
Fund.
Not less than 45 days prior (unless a shorter period
shall be satisfactory to the Trustee) to each sinking fund
payment date for any series of Securities, the Company will
deliver to the Trustee a Company Order specifying the amount of
the next ensuing sinking fund payment for that series pursuant to
the terms of that series, the portion thereof, if any, that is to
be satisfied by payment of cash and the portion thereof, if any,
that is to be satisfied by delivery of or by crediting Securities
of that series pursuant to Section 3.10 and will also deliver to
the Trustee any Securities to be so delivered. Failure of the
Company to deliver timely such Company Order and Securities
specified in this paragraph shall not constitute a default but
shall constitute the election of the Company (i) that the
mandatory sinking fund payment for such series due on the next
succeeding sinking fund payment date shall be paid entirely in
cash without the option to deliver or credit Securities of such
series in respect thereof and (ii) that the Company will make no
optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or
optional or both) to be made in cash on the next succeeding
sinking fund payment date plus any unused balance of any
preceding sinking fund payments made in cash shall exceed
$100,000 or a lesser sum if the Company shall so request with
respect to the Securities of any particular series, such cash
shall be applied on the next succeeding sinking fund payment date
to the redemption of Securities of such series at the sinking
fund redemption price together with accrued interest to the date
fixed for redemption. If such amount shall be $100,000 or less
and the Company makes no such request, then it shall be carried
over until a sum in excess of $100,000 is available. Not less
than 30 days before each such sinking fund payment date, the
Trustee shall select the Securities to be redeemed upon such
sinking fund payment date in the manner specified in Section 3.03
and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided
in Section 3.04. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in
the manner stated in Sections 3.05, 3.06 and 3.07.
ARTICLE IV
COVENANTS
Section 4.01 Payment of Securities.
The Company shall pay the principal of, premium (if
any) and interest on and any Additional Amounts with respect to
the Securities of each series on the dates and in the manner
provided in the Securities of such series and in this Indenture.
Principal, premium, interest and any Additional Amounts shall be
considered paid on the date due if the Paying Agent, other than
the Company or a Subsidiary of the Company, holds on that date
money deposited by the Company designated for and sufficient to
pay all principal, premium, interest and any Additional Amounts
then due.
The Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law) on overdue
principal of and premium (if any) on Securities of any series, at
a rate equal to the then applicable interest rate on the
Securities of that series to the extent lawful; and it shall pay
interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue installments of interest and
any Additional Amount (without regard to any applicable grace
period) on Securities of any series at the same rate to the
extent lawful.
Section 4.02 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for
any series of Securities an office or agency (which may be an
office of the Trustee, the Registrar or the Paying Agent) where
Securities of that series may be presented for registration of
transfer or exchange, where Securities of that series may be
presented for payment and where notices and demands to or upon
the Company in respect of the Securities of that series and this
Indenture may be served. Unless otherwise designated by the
Company by written notice to the Trustee, such office or agency
shall be the office of the Trustee in The City of New York,
which, on the date hereof, is located at 14 Wall Street, 8th
Floor, New York, New York 10005. The Company will give prompt
written notice to the Trustee of the location, and any change in
the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or
more other offices or agencies where the Securities of one or
more series may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain
an office or agency in each Place of Payment for Securities of
any series for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other
office or agency.
Section 4.03 SEC Reports; Financial Statements.
The Company shall file with the Trustee, within 15 days
after it files the same with the SEC, copies of the annual
reports and the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may by
rules and regulations prescribe) that the Company is required to
file with the SEC pursuant to Section 13 or 15(d) of the Exchange
Act. If the Company is not subject to the requirements of such
Section 13 or 15(d), the Company shall file with the Trustee,
within 15 days after it would have been required to file the same
with the SEC, financial statements, including any notes thereto
(and with respect to annual reports, an auditors' report by a
firm of established national reputation), and a "Management's
Discussion and Analysis of Financial Condition and Results of
Operations," both comparable to that which the Company would have
been required to include in such annual reports, information,
documents or other reports if the Company had been subject to the
requirements of such Section 13 or 15(d). The Company shall file
with the Trustee and the SEC, in accordance with rules and
regulations prescribed from time to time by the SEC, 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. The Company shall transmit by mail to all
Holders, 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 this Section 4.03
as may be required by rules and regulations prescribed from time
to time by the SEC. The Company shall also comply with the
provisions of TIA S 314(a).
Section 4.04 Compliance Certificate.
(a) The Company shall deliver to the Trustee, within
120 days after the end of each fiscal year of the Company, a
statement signed by two Officers of the Company, which need not
constitute an Officers' Certificate, complying with TIA S 314
(a)(4) and stating that in the course of performance by the
signing Officers of the Company of their duties as such Officers
of the Company they would normally obtain knowledge of the
keeping, observing, performing and fulfilling by the Company of
its obligations under this Indenture, and further stating, as to
each such Officer signing such statement, that to his knowledge
the Company has kept, observed, performed and fulfilled each and
every covenant contained in this Indenture and is not in default
in the performance or observance of any of the terms, provisions
and conditions hereof (or, if a Default or Event of Default shall
have occurred, describing all such Defaults or Events of Default
of which such Officer may have knowledge and what action the
Company is taking or proposes to take with respect thereto).
(b) The Company shall, so long as Securities of any
series are outstanding, deliver to the Trustee, promptly upon any
Officer of the Company becoming aware of any Default or Event of
Default under this Indenture, an Officers' Certificate specifying
such Default or Event of Default and what action the Company is
taking or proposes to take with respect thereto.
Section 4.05 Corporate Existence.
Subject to Article V hereof, the Company shall do or
cause to be done all things necessary to preserve and keep in
full force and effect its corporate existence and the corporate,
partnership and other existence of each of its Significant
Subsidiaries and all rights (charter and statutory) and
franchises of the Company and its Significant Subsidiaries;
provided that the Company shall not be required to preserve the
corporate existence of any Significant Subsidiary of the Company
or any such right or franchise if it shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Company and its Subsidiaries taken as a whole and
that the loss thereof would not have a material adverse effect on
the business, assets or financial condition of the Company and
its Subsidiaries taken as a whole and would not have any material
adverse effect on the payment and performance of the obligations
of the Company under the Securities and this Indenture.
Section 4.06 Maintenance of Properties.
The Company shall cause all material properties owned
by or leased to the Company or any Significant Subsidiary of the
Company or used or held for use in the conduct of its business or
the business of any such Significant Subsidiary to be maintained
and kept in good condition, repair and working order (reasonable
wear and tear excepted) and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements
thereof, all as in the sole judgment of the Company may be
necessary so that the business carried on in connection therewith
may be properly conducted at all times; provided that nothing in
this Section 4.06 shall prevent the Company from discontinuing
the operation or maintenance of any of such properties if such
discontinuance is, in the sole judgment of the Company, desirable
and not disadvantageous in any material respect to the Holders.
Section 4.07 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid
or discharged, before the same shall become delinquent, (i) all
material taxes, assessments and governmental charges levied or
imposed upon the Company or any of its Significant Subsidiaries
or upon the income, profits or property of the Company or any of
its Significant Subsidiaries, and (ii) all material lawful claims
for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Company or any of its
Significant Subsidiaries; provided that the Company shall not be
required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith or
would not be disadvantageous in any material respect to the
Holders.
Section 4.08 Waiver of Stay, Extension or Usury
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 or any usury law or other
law that would prohibit or forgive the Company from paying all or
any portion of the principal of or interest on the Securities of
any series as contemplated herein, wherever enacted, now or at
any time hereafter in force, or which may affect the covenants or
the performance of this Indenture, and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit
or advantage of any such law, and covenants that it will not
hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every
such power as though no such law had been enacted.
Section 4.09 Additional Amounts.
If the Securities of a series expressly provide for the
payment of Additional Amounts, the Company will pay to the Holder
of any Security of such series Additional Amounts as expressly
provided therein. Whenever in this Indenture there is mentioned,
in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series, such
mention shall be deemed to include mention of the payment of
Additional Amounts provided for in this Section 4.09 to the
extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to the provisions of
this Section 4.09 and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall
not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
Unless otherwise provided pursuant to Section 2.01 with
respect to Securities of any series, if the Securities of a
series provide for the payment of Additional Amounts, at least
ten days prior to the first Interest Payment Date with respect to
that series of Securities (or if the Securities of that series
will not bear interest prior to Maturity, the first day on which
a payment of principal and any premium is made), and at least ten
days prior to each date of payment of principal and any premium
or interest if there has been any change with respect to the
matters set forth in the below-mentioned Officers' Certificate,
the Company shall furnish the Trustee and the Company's principal
Paying Agent or Paying Agents, if other than the Trustee, with an
Officers' Certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of and
any premium or interest on the Securities of that series shall be
made to Holders of Securities of that series who are United
States Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the
Securities of that series. If any such withholding shall be
required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such
payments to such Holders of Securities and the Company will pay
to such Paying Agent the Additional Amounts required by this
Section. The Company covenants to indemnify the Trustee and any
Paying Agent for and to hold them harmless against any loss,
liability or expense reasonably incurred without negligence or
bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished pursuant to this Section 4.09.
ARTICLE V
SUCCESSORS
Section 5.01 Limitations on Mergers and
Consolidations.
The Company shall not consolidate with or merge with
any Person, or sell, lease, convey, transfer or otherwise dispose
of all or substantially all of its assets to any Person, unless:
(1) either (a) the Company shall be the continuing
corporation or (b) the Person formed by or surviving such
consolidation or merger (if other than the Company), or to
which such sale, lease, conveyance, transfer or other
disposition shall be made (collectively, the "Successor"),
is organized and existing under the laws of the United States,
or any State thereof or the District of Columbia, and
expressly assumes by supplemental indenture all of the
obligations of the Company under this Indenture and the
Securities;
(2) immediately after giving effect to such
transaction, no Default or Event of Default shall have
occurred and be continuing; and
(3) the Company delivers to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that the
transaction and such supplemental indenture comply with this
Indenture.
Section 5.02 Successor Person Substituted.
Upon any consolidation or merger of the Company or any
sale, lease, conveyance, transfer or other disposition of all or
substantially all of the assets of the Company in accordance with
Section 5.01, any Successor formed by such consolidation or into
or with which the Company is merged or to which such sale, lease,
conveyance, transfer or other disposition is made shall succeed
to, and be substituted for, and may exercise every right and
power of the Company under this Indenture and each series of
Securities with the same effect as if such Successor had been
named as the Company herein and the predecessor Company, in the
case of a sale, conveyance, transfer or other disposition, shall
be released from all obligations under this Indenture and each
series of Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.01 Events of Default.
Unless either inapplicable to a particular series or
specifically deleted or modified in or pursuant to the
supplemental indenture or Board Resolution establishing such
series of Securities or in the form of Security for such series,
an "Event of Default," wherever used herein with respect to
Securities of any series, occurs if:
(1) the Company defaults in the payment of interest on
or any Additional Amounts with respect to any Security of
that series when the same becomes due and payable and such
default continues for a period of 30 days;
(2) the Company defaults in the payment of the
principal of or premium (if any) on any Security of that
series at its Maturity;
(3) the Company defaults in the deposit of any
mandatory sinking fund payment, when and as due by the terms
of a Security of that series, and such default continues for
a period of 30 days;
(4) the Company fails to comply with any of its other
agreements or covenants in, or provisions of, the Securities
of such series or this Indenture (other than an agreement,
covenant or provision that has expressly been included in
this Indenture solely for the benefit of one or more series
of Securities other than that series) and such failure
continues for the period and after the notice specified in
the last paragraph of this Section 6.01;
(5) the Company or any Significant Subsidiary of the
Company pursuant to or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Bankruptcy
Custodian of it or for all or for a substantial part of its
property, or
(D) makes a general assignment for the benefit of its
creditors;
(6) a court of competent jurisdiction enters an order
or decree under any Bankruptcy Law that remains unstayed and
in effect for 90 days and that:
(A) is for relief against the Company or any
Significant Subsidiary of the Company as debtor in an
involuntary case,
(B) appoints a Bankruptcy Custodian of the Company or
any Significant Subsidiary of the Company or a Bankruptcy
Custodian for all or for a substantial part of the property
of the Company or any Significant Subsidiary of the Company,
or
(C) orders the liquidation of the Company or any
Significant Subsidiary of the Company; or
(7) any other Event of Default provided with respect to
Securities of that series occurs.
The term "Bankruptcy Custodian" means any receiver,
trustee, assignee, liquidator or similar official under any
Bankruptcy Law.
The Trustee shall not be deemed to know or have notice
of a Default unless a Trust Officer at the Corporate Trust Office
of the Trustee receives written notice at the Corporate Trust
Office of the Trustee of such Default with specific reference to
such Default.
When a Default is cured, it ceases.
A Default under clause (4) or (7) of this Section 6.01
is not an Event of Default until the Trustee notifies the
Company, or the Holders of at least 25% in principal amount of
the then outstanding Securities of the series affected by such
Default notify the Company and the Trustee, of the Default, and
the Company fails to cure the Default within 90 days after
receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a "Notice
of Default."
Section 6.02 Acceleration.
If an Event of Default with respect to Securities of
any series at the time outstanding (other than an Event of
Default specified in clause (5) or (6) of Section 6.01 hereof)
occurs and is continuing, the Trustee by notice to the Company,
or the Holders of at least 25% in principal amount of the then
outstanding Securities of that series by notice to the Company
and the Trustee, may declare the principal of (or, if any such
Securities are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that
series) and accrued and unpaid interest on all then outstanding
Securities of such series to be due and payable. Upon any such
declaration, the amounts due and payable on such Securities shall
be due and payable immediately. If an Event of Default specified
in clause (5) or (6) of Section 6.01 hereof occurs, such amounts
shall ipso facto become and be immediately due and payable
without any declaration, notice or other act on the part of the
Trustee or any Holder. At any time after such a declaration of
acceleration with respect to Securities of any series has been
made and before a judgment or decree for payment of the money due
has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the
then outstanding Securities of that series by written notice to
the Trustee may rescind an acceleration and its consequences
(other than nonpayment of principal of or premium or interest on
or Additional Amounts with respect to the Securities) if the
rescission would not conflict with any judgment or decree and if
all existing Events of Default with respect to Securities of that
series have been cured or waived, except nonpayment of principal,
premium, interest or Additional Amounts that has become due
solely because of the acceleration.
Section 6.03 Other Remedies.
If an Event of Default with respect to Securities of
any series occurs and is continuing, the Trustee may pursue any
available remedy to collect the payment of principal of, or
premium, if any, or interest on the Securities of that series or
to enforce the performance of any provision of the Securities of
that series or this Indenture.
The Trustee may maintain a proceeding with respect to
Securities of any series even if it does not possess any of the
Securities of that series or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Holder in
exercising any right or remedy accruing upon an Event of Default
shall not impair the right or remedy or constitute a waiver of or
acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
Section 6.04 Waiver of Existing or Past Defaults.
Subject to Sections 6.07 and 9.02, the Holders of a
majority in principal amount of the then outstanding Securities
of any series by notice to the Trustee may waive an existing or
past Default or Event of Default with respect to such series and
its consequences (including waivers obtained in connection with a
tender offer or exchange offer for Securities of such series or a
solicitation of consents in respect of Securities of such series,
provided that in each case such offer or solicitation is made to
all Holders of then outstanding Securities of such series),
except (1) a continuing Default or Event of Default in the
payment of the principal of, or premium, if any, or interest on
or any Additional Amounts with respect to any Security of such
series or (2) a continued Default in respect of a provision that
under Section 9.02 cannot be amended or supplemented without the
consent of the Holder of each outstanding Security of such series
affected. Upon any such waiver, such Default shall cease to
exist, and any Event of Default with respect to such series
arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Default or impair any right consequent
thereon.
Section 6.05 Control by Majority.
With respect to Securities of any series, the Holders
of a majority in principal amount of the then outstanding
Securities of such series may direct in writing the time, method
and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on it
relating to or arising under an Event of Default with respect to
Securities of such series. However, the Trustee may refuse to
follow any direction that conflicts with applicable law or this
Indenture, that the Trustee determines may be unduly prejudicial
to the rights of other Holders of such series, or that may
involve the Trustee in personal liability; provided, however,
that the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to
indemnification satisfactory to it in its sole discretion from
Holders directing the Trustee against all losses and expenses
caused by taking or not taking such action.
Section 6.06 Limitations on Suits.
Subject to Section 6.07 hereof, a Holder of a Security
of any series may pursue a remedy with respect to this Indenture
or the Securities of such series only if:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default with respect to such series;
(2) the Holders of at least 25% in principal amount of
the then outstanding Securities of such series make a
written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee
indemnity reasonably satisfactory to the Trustee against any
loss, liability or expense;
(4) the Trustee does not comply with the request within
60 days after receipt of the request and the offer of
indemnity; and
(5) during such 60-day period the Holders of a majority
in principal amount of the Securities of that series do not
give the Trustee a direction inconsistent with the request.
A Holder may not use this Indenture to prejudice the
rights of another Holder or to obtain a preference or priority
over another Holder.
Section 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture,
the right of any Holder of a Security to receive payment of
principal of and premium, if any, and interest on and any
Additional Amounts with respect to that Security, on or after the
respective due dates expressed in that Security, or to bring suit
for the enforcement of any such payment on or after such
respective dates, is absolute and unconditional and shall not be
impaired or affected without the consent of the Holder.
Section 6.08 Collection Suit by Trustee.
If an Event of Default specified in clause (1), (2) or
(3) of Section 6.01 hereof occurs and is continuing with respect
to Securities of any series, the Trustee is authorized to recover
judgment in its own name and as trustee of an express trust
against the Company for the amount of principal, premium (if
any), interest and any Additional Amounts remaining unpaid on the
Securities of that series, and interest on overdue principal and
premium, if any, and, to the extent lawful, interest on overdue
interest, and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
Section 6.09 Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim
and other papers or documents and to take such actions, including
participating as a member, voting or otherwise, of any committee
of creditors, as may be necessary or advisable to have the claims
of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and the Holders allowed in any
judicial proceeding relative to the Company or its creditors or
properties and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or
deliverable on any such claims and any Bankruptcy Custodian in
any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07. To the extent that the payment
of any such compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07 out of the estate in any such
proceeding, shall be denied for any reason, payment of the same
shall be secured by a lien on, and shall be paid out of, any and
all distributions, dividends, money, securities and other
properties which the Holders of the Securities may be entitled
to receive in such proceeding whether in liquidation or under any
plan of reorganization or arrangement or otherwise. Nothing
herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the
claim of any Holder in any such proceeding.
Section 6.10 Priorities.
If the Trustee collects any money pursuant to this
Article, it shall pay out the money in the following order:
First: to the Trustee for amounts due under
Section 7.07;
Second: to Holders for amounts due and unpaid on the
Securities in respect of which or for the benefit of which
such money has been collected, for principal, premium (if
any), interest and any Additional Amounts ratably, without
preference or priority of any kind, according to the amounts
due and payable on such Securities for principal, premium
(if any), interest and any Additional Amounts, respectively;
and
Third: to the Company.
The Trustee, upon prior written notice to the Company,
may fix record dates and payment dates for any payment to Holders
pursuant to this Article.
Section 6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy
under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as a trustee, a court in its
discretion may require the filing by any party litigant in the
suit of an undertaking to pay the costs of the suit, and the
court in its discretion may assess reasonable costs, including
reasonable attorney's fees, against any party litigant in the
suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07, or a suit by a Holder or Holders of
more than 10% in principal amount of the then outstanding
Securities of any series.
ARTICLE VII
TRUSTEE
Section 7.01 Duties of Trustee.
(a) If an Event of Default with respect to the
Securities of any series has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it
by this Indenture with respect to such series, and use the same
degree of care and skill in such exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own
affairs.
(b) Except during the continuance of an Event of
Default with respect to the Securities of any series:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine such certificates and
opinions to determine whether, on their face, they appear to
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities for
its own negligent action, its own negligent failure to act or
its own willful misconduct, except that:
(1) this paragraph does not limit the effect of Section
7.01(b);
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts;and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 6.05
hereof.
(d) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the
Trustee is subject to the provisions of this Section 7.01.
(e) No provision of this Indenture shall require the
Trustee to expend or risk its own funds or incur any liability.
The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity reasonably satisfactory to
it against any loss, liability or expense.
(f) The Trustee shall not be liable for interest on any
money received by it except as the Trustee may agree in writing
with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
All money received by the Trustee with respect to Securities of any
series shall, until applied as herein provided, be held in trust
for the payment of the principal of, premium (if any) and interest
on and Additional Amounts with respect to the Securities of that
series.
Section 7.02 Rights of Trustee.
(a) The Trustee may rely on any document believed by it
to be genuine and to have been signed or presented by the proper
Person. The Trustee need not investigate any fact or matter
stated in the document.
(b) Before the Trustee acts or refrains from acting, it
may require an Officers' Certificate or an Opinion of Counsel or
both to be provided. The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on such
Officers' Certificate or Opinion of Counsel. The Trustee may
consult with counsel and the written advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by
it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed
with due care.
(d) The Trustee shall not be liable for any action it
takes or omits to take in good faith which it believes to be
authorized or within its rights or powers conferred upon it by this
Indenture.
(e) Unless otherwise specifically provided in this
Indenture, any demand, request, direction or notice from the
Company shall be sufficient if signed by an Officer of the Company.
Section 7.03 May Hold Securities.
The Trustee in its individual or any other capacity may
become the owner or pledgee of Securities and may otherwise deal
with the Company or any of its Affiliates with the same rights it
would have if it were not Trustee. Any Agent may do the same
with like rights and duties. However, the Trustee is subject to
Sections 7.10 and 7.11.
Section 7.04 Trustee's Disclaimer.
The Trustee makes no representation as to the validity
or adequacy of this Indenture or the Securities; it shall not be
accountable for the Company's use of the proceeds from the
Securities or any money paid to the Company or upon the Company's
direction under any provision hereof; it shall not be responsible
for the use or application of any money received by any Paying
Agent other than the Trustee; and it shall not be responsible for
any statement or recital herein or any statement in the
Securities other than its certificate of authentication.
Section 7.05 Notice of Defaults.
If a Default or Event of Default with respect to the
Securities of any series occurs and is continuing and it is known
to the Trustee, the Trustee shall mail to Holders of Securities
of such series a notice of the Default or Event of Default within
90 days after it occurs. Except in the case of a Default or
Event of Default in payment of principal of, premium (if any) and
interest on and Additional Amounts or any sinking fund
installment with respect to the Securities of such series, the
Trustee may withhold the notice if and so long as a committee of
its Trust Officers in good faith determines that withholding the
notice is in the interests of Holders of Securities of such
series.
Section 7.06 Reports by Trustee to Holders.
Within 60 days after each January 31, beginning with
January 31, 1999, and in any event prior to March 31 in each
year, the Trustee shall mail to Holders of a series a brief
report dated as of such reporting date that complies with TIA
S 313(a); provided, however, that if no event described in TIA
S 313(a) has occurred within the twelve months preceding the
reporting date with respect to a series, no report need be
transmitted to Holders of such series. The Trustee also shall
comply with TIA S 313(b). The Trustee shall also transmit by
mail all reports if and as required by TIA SS 313(c) and 313(d).
A copy of each report at the time of its mailing to
Holders of a series of Securities shall be filed with the SEC and
each securities exchange, if any, on which the Securities of such
series are listed. The Company shall notify the Trustee if and
when any series of Securities is listed on any stock exchange.
Section 7.07 Compensation and Indemnity.
The Company agrees to pay to the Trustee from time to
time reasonable compensation for its acceptance of this Indenture
and services hereunder. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express
trust. The Company agrees to reimburse the Trustee upon request
for all reasonable disbursements, advances and expenses incurred
by it. Such expenses shall include the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel.
The Company hereby indemnifies the Trustee against any
loss, liability or expense incurred by it arising out of or in
connection with the acceptance or administration of its duties
under this Indenture, except as set forth in the next paragraph.
The Trustee shall notify the Company promptly of any claim for
which it may seek indemnity. The Company shall defend the claim
and the Trustee shall cooperate in the defense. The Trustee may
have separate counsel and the Company shall pay the reasonable
fees and expenses of such counsel. The Company need not pay for
any settlement made without its consent.
The Company shall not be obligated to reimburse any
expense or indemnify against any loss or liability incurred by
the Trustee through negligence or bad faith.
To secure the payment obligations of the Company in
this Section 7.07, the Trustee shall have, and the Company hereby
grants, a lien prior to the Securities on all money or property
held or collected by the Trustee, except that held in trust to
pay principal of, premium (if any) and interest on and any
Additional Amounts with respect to the Securities of any series.
Such lien shall survive the satisfaction and discharge of this
Indenture.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 6.01(5) or (6)
occurs, the expenses and the compensation for the services are
intended to constitute expenses of administration under any
Bankruptcy Law.
Section 7.08 Replacement of Trustee.
A resignation or removal of the Trustee and appointment
of a successor Trustee shall become effective only upon the
successor Trustee's acceptance of appointment as provided in this
Section 7.08.
The Trustee may resign and be discharged at any time
with respect to the Securities of one or more series by so
notifying the Company. The Holders of a majority in principal
amount of the then outstanding Securities of any series may
remove the Trustee with respect to the Securities of such series
by so notifying the Trustee and the Company. The Company may
remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent
or an order for relief is entered with respect to the Trustee
under any Bankruptcy Law;
(3) a Bankruptcy Custodian or public officer takes
charge of the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, with respect to
the Securities of one or more series, the Company shall promptly
appoint a successor Trustee or Trustees with respect to the
Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the
Securities of any particular series). Within one year after the
successor Trustee with respect to the Securities of any series
takes office, the Holders of a majority in principal amount of
the Securities of such series may appoint a successor Trustee to
replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities
of any series does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of at least 10% in principal amount of the
then outstanding Securities of such series may petition any court
of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
If the Trustee with respect to the Securities of a
series fails to comply with Section 7.10, any Holder of
Securities of such series may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment
of a successor Trustee with respect to the Securities of such
series.
In case of the appointment of a successor Trustee with
respect to all Securities, each such successor Trustee shall
deliver a written acceptance of its appointment to the retiring
Trustee and to the Company. Thereupon the resignation or removal
of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the
retiring Trustee under this Indenture. The successor Trustee
shall mail a notice of its succession to Holders. The retiring
Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided
for in Section 7.07.
In case of the appointment of a successor Trustee with
respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with
respect to the Securities of one or more (but not all) series
shall execute and deliver an indenture supplemental hereto in
which each successor Trustee shall accept such appointment and
that (1) shall confer to each successor Trustee all the rights,
powers and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of
such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall confirm that
all the rights, powers and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the
retiring Trustee is not retiring shall continue to be vested in
the retiring Trustee and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts hereunder by more
than one Trustee. Nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same
trust, and each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee. Upon the
execution and delivery of such supplemental indenture, the
resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor
Trustee shall have all the rights, powers and duties of the
retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee
relates. On the request of the Company or any successor Trustee,
such retiring Trustee shall transfer to such successor Trustee
all property held by such retiring Trustee as Trustee with
respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
Notwithstanding replacement of the Trustee or Trustees
pursuant to this Section 7.08, the obligations of the Company
under Section 7.07 shall continue for the benefit of the retiring
Trustee or Trustees.
Section 7.09 Successor Trustee by Merger, etc.
Subject to Section 7.10, if the Trustee consolidates,
merges or converts into, or transfers all or substantially all of
its corporate trust business to, another corporation, the
successor corporation without any further act shall be the
successor Trustee; provided, however, that in the case of a
transfer of all or substantially all of its corporate trust
business to another corporation, the transferee corporation
expressly assumes all of the Trustee's liabilities hereunder.
In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities
so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee
may authenticate such Securities either in the name of any
predecessor hereunder or in the name of the successor to the
Trustee; and in all such cases such certificates shall have the
full force which it is anywhere in the Securities or in this
Indenture provided that the certificate of the Trustee shall
have.
Section 7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder which
shall be a corporation organized and doing business under the
laws of the United States, any State thereof or the District of
Columbia and authorized under such laws to exercise corporate
trust power, shall be subject to supervision or examination by
Federal or State (or the District of Columbia) authority and
shall have, or be a Subsidiary of a bank or bank holding company
having, a combined capital and surplus of at least $50 million as
set forth in its most recent published annual report of
condition.
The Indenture shall always have a Trustee who satisfies
the requirements of TIA SS 310(a)(1), 310(a)(2) and 310(a)(5).
The Trustee is subject to and shall comply with the provisions of
TIA S 310(b) during the period of time required by this
Indenture. Nothing in this Indenture shall prevent the Trustee
from filing with the SEC the application referred to in the
penultimate paragraph of TIA S 310(b).
Section 7.11 Preferential Collection of Claims
Against Company.
The Trustee is subject to and shall comply with the
provisions of TIA S 311(a), excluding any creditor relationship
listed in TIA S 311(b). A Trustee who has resigned or been
removed shall be subject to TIA S 311(a) to the extent indicated
therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
Section 8.01 Termination of Company's Obligations.
(a) Except as otherwise specified, as contemplated by
Section 2.01, for Securities of any series, this Indenture shall
cease to be of further effect with respect to the Securities of
a series (except that the Company's obligations under Section
7.07, the Trustee's and Paying Agent's obligations under Section
8.03 and the rights, powers, protections and privileges
accorded the Trustee under Article VII shall survive), and the
Trustee, on demand of the Company, shall execute proper
instruments acknowledging the satisfaction and discharge of this
Indenture with respect to the Securities of such series, when:
(1) either
(A) all outstanding Securities of such series
theretofore authenticated and issued (other than
destroyed, lost or stolen Securities that have been
replaced or paid) have been delivered to the Trustee
for cancellation; or
(B) all outstanding Securities of such series not
theretofore delivered to the Trustee for cancellation:
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii)are to be called for redemption within
one year under arrangements satisfactory
to the Trustee for the giving of notice
of redemption by the Trustee in the name,
and at the expense, of the Company,
and the Company has irrevocably deposited or caused to
be deposited with the Trustee as funds (immediately
available to the Holders in the case of clause (i)) in
trust for such purpose (x) cash in an amount, or (y)
Government Obligations, maturing as to principal and
interest at such times and in such amounts as will
ensure the availability of cash in an amount or (z) a
combination thereof, which will be sufficient, in the
opinion (in the case of clauses (y) and (z)) of a
nationally recognized firm of independent public
accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge
the entire indebtedness on the Securities of such
series for principal and any interest and any
Additional Amounts to the date of such deposit (in the
case of Securities which have become due and payable)
or for principal, premium, if any, and interest and any
Additional Amounts to the Stated Maturity or Redemption
Date, as the case may be; or
(C) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified,
as contemplated by Section 2.01, to be applicable to
the Securities of such series;
(2) the Company has paid or caused to be paid all other
sums payable by it hereunder with respect to the Securities
of such series; and
(3) the Company has delivered to the Trustee an
Officers' Certificate stating that all conditions precedent
to satisfaction and discharge of this Indenture with respect
to the Securities of such series have been complied with,
together with an Opinion of Counsel to the same effect.
(b) Unless this Section 8.01(b) is specified as not
being applicable to Securities of a series as contemplated by
Section 2.01, the Company may terminate certain of its
obligations under this Indenture ("covenant defeasance")
with respect to the Securities of a series if:
(1) the Company has irrevocably deposited or caused to
be irrevocably deposited with the Trustee as trust funds in
trust for the purpose of making the following payments,
specifically pledged as security for and dedicated solely to
the benefit of the Holders of Securities of such series (i)
money in the currency in which payment of the Securities of
such series is to be made in an amount, or (ii) Government
Obligations with respect to such series, maturing as to
principal and interest at such times and in such amounts
(without consideration of the reinvestment of any such
amounts) as will ensure the availability of money in the
currency in which payment of the Securities of such series is
to be made in an amount or (iii) a combination thereof, that
is sufficient, in the opinion (in the case of clauses (ii)
and (iii)) of a nationally recognized firm of independent
public accountants expressed in a written certification
thereof delivered to the Trustee, to pay, after payment of
all taxes of other charges or assessments in respect thereof
payable by the Trustee, the principal of and premium (if any)
and any interest and Additional Amounts on all Securities of
such series on each date that such principal, premium (if
any), interest and Additional Amounts is due and payable and
(at the Stated Maturity thereof or upon redemption as
provided in Section 8.01(e)) to pay all other sums payable by
it hereunder; provided that the Trustee shall have been
irrevocably instructed to apply such money and/or the
proceeds of such Government Obligations to the payment of
said principal, premium (if any), interest and Additional
Amounts with respect to the Securities of such series as the
same shall become due;
(2) the Company has delivered to the Trustee an
Officers' Certificate stating that all conditions precedent
to satisfaction and discharge of this Indenture with respect
to the Securities of such series have been complied with, and
an Opinion of Counsel to the same effect;
(3) no Default or Event of Default with respect to the
Securities of such series shall have occurred and be
continuing on the date of such deposit;
(4) the Company shall have delivered to the Trustee an
Opinion of Counsel from counsel reasonably acceptable to the
Trustee or a tax ruling to the effect that the Holders of
Securities of such series will not recognize income, gain or
loss for Federal income tax purposes as a result of the
Company's exercise of its option under this Section 8.01(b)
and will be subject to Federal income tax on the same amount
and in the same manner and at the same times as would have
been the case if such option had not been exercised;
(5) the Company has complied with any additional
conditions specified pursuant to Section 2.01 to be
applicable to the discharge of Securities of such series
pursuant to this Section 8.01;
(6) such deposit and discharge shall not cause the
Trustee to have a conflicting interest as defined in TIA S
310(b); and
(7) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that after the passage of 91
days following the deposit, the trust funds will not be
subject to the effect of any applicable bankruptcy,
insolvency, reorganization or similar laws affecting
creditors' rights generally.
In such event, this Indenture shall cease to be of
further effect (except as set forth in this paragraph), and the
Trustee, on demand of the Company, shall execute proper
instruments acknowledging satisfaction and discharge under this
Indenture. However, the Company's obligations in Sections 2.05,
2.06, 2.07, 2.08, 2.09, 4.01, 4.02, 5.01, 7.07, 7.08 and 8.04,
the Trustee's and Paying Agent's obligations in Section 8.03 and
the rights, powers, protections and privileges accorded the
Trustee under Article VII shall survive until all Securities of
such series are no longer outstanding. Thereafter, only the
Company's obligations in Section 7.07 and the Trustee's and
Paying Agent's obligations in Section 8.03 shall survive with
respect to Securities of such series.
After such irrevocable deposit made pursuant to this
Section 8.01(b) and satisfaction of the other conditions set
forth herein, the Trustee upon request shall acknowledge in
writing the discharge of the Company's obligations under this
Indenture with respect to the Securities of such series except
for those surviving obligations specified above.
In order to have money available on a payment date to
pay principal of or premium (if any) on or interest or Additional
Amounts on the Securities, the Government Obligations shall be
payable as to principal or interest on or before such payment
date in such amounts as will provide the necessary money.
(c) If the Company has previously complied or is
concurrently complying with Section 8.01(b) (other than any
additional conditions specified pursuant to Section 2.01 that are
expressly applicable only to covenant defeasance) with respect to
Securities of a series, then, unless this Section 8.01(c) is
specified as not being applicable to Securities of such series as
contemplated by Section 2.01, the Company may elect to be
discharged ("legal defeasance") from its obligations to make
payments with respect to Securities of such series, if:
(1) no Default or Event of Default under clauses (5)
and (6) of Section 6.01 hereof shall have occurred at any
time during the period ending on the 91st day after the
date of deposit contemplated by Section 8.01(b) (it being
understood that this condition shall not be deemed satisfied
until the expiration of such period);
(2) unless otherwise specified with respect to
Securities of such series as contemplated by Section 2.01,
the Company has delivered to the Trustee an Opinion of
Counsel from counsel reasonably acceptable to the Trustee to
the effect referred to in Section 8.01(b)(4) with respect to
such legal defeasance;
(3) the Company has complied with any other conditions
specified pursuant to Section 2.01 to be applicable to the
legal defeasance of Securities of such series pursuant to
this Section 8.01(c);and
(4) the Company has delivered to the Trustee a Company
Request requesting such legal defeasance of the Securities
of such series and an Officers' Certificate stating that all
conditions precedent with respect to such legal defeasance
of the Securities of such series have been complied with,
together with an Opinion of Counsel to the same effect.
In such event, the Company will be discharged from its
obligations under this Indenture and the Securities of such
series to pay principal of, premium (if any) and interest on, and
any Additional Amounts with respect to Securities of such series,
the Company's obligations under Sections 4.01, 4.02 and 5.01
shall terminate with respect to such Securities, and the entire
indebtedness of the Company evidenced by such Securities shall be
deemed paid and discharged.
(d) If and to the extent additional or alternative
means of satisfaction, discharge or defeasance of Securities of a
series are specified to be applicable to such series as
contemplated by Section 2.01, the Company may terminate any or
all of its obligations under this Indenture with respect to
Securities of a series and any or all of its obligations under
the Securities of such series if it fulfills such other means of
satisfaction and discharge as may be so specified, as
contemplated by Section 2.01, to be applicable to the Securities
of such series.
(e) If Securities of any series subject to subsections
(a), (b), (c) or (d) of this Section 8.01 are to be redeemed
prior to their Stated Maturity, whether pursuant to any optional
redemption provisions or in accordance with any mandatory or
optional sinking fund provisions, the terms of the applicable
trust arrangement shall provide for such redemption, and the
Company shall make such arrangements as are reasonably
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company.
Section 8.02 Application of Trust Money.
The Trustee or a trustee reasonably satisfactory to the
Trustee and the Company shall hold in trust money or Government
Obligations deposited with it pursuant to Section 8.01 hereof.
It shall apply the deposited money and the money from Government
Obligations through the Paying Agent and in accordance with this
Indenture to the payment of principal of, premium (if any) and
interest on and any Additional Amounts with respect to the
Securities of the series with respect to which the deposit was
made.
Section 8.03 Repayment to Company.
The Trustee and the Paying Agent shall promptly pay to
the Company at any time upon the written request of the Company
any excess money or Government Obligations (or proceeds
therefrom) held by them.
Subject to the requirements of any applicable abandoned
property laws, the Trustee and the Paying Agent shall pay to the
Company upon written request any money held by them for the
payment of principal, premium (if any), interest or any
Additional Amounts that remain unclaimed for two years after the
date upon which such payment shall have become due. After
payment to the Company, Holders entitled to the money must look
to the Company for payment as general creditors unless an
applicable abandoned property law designates another Person, and
all liability of the Trustee and the Paying Agent with respect to
such money shall cease.
Section 8.04 Reinstatement.
If the Trustee or the Paying Agent is unable to apply
any money or Government Obligations deposited with respect to
Securities of any series in accordance with Section 8.01 by
reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the
obligations of the Company under this Indenture with respect to
the Securities of such series and under the Securities of such
series shall be revived and reinstated as though no deposit had
occurred pursuant to Section 8.01 until such time as the Trustee
or the Paying Agent is permitted to apply all such money or
Government Obligations in accordance with Section 8.01; provided,
however, that if the Company has made any payment of principal
of, premium (if any) or interest on or any Additional Amounts
with respect to any Securities because of the reinstatement of
its obligations, the Company shall be subrogated to the rights of
the Holders of such Securities to receive such payment from the
money or Government Obligations held by the Trustee or the Paying
Agent.
ARTICLE IX
SUPPLEMENTAL INDENTURES AND
AMENDMENTS
Section 9.01 Without Consent of Holders.
The Company and the Trustee may amend or supplement
this Indenture or the Securities without the consent of any
Holder:
(1) to cure any ambiguity, omission, defect or
inconsistency;
(2) to comply with Section 5.01;
(3) to provide for uncertificated Securities in
addition to or in place of certificated Securities, or to
provide for the issuance of bearer Securities (with or
without coupons);
(4) to provide any security for any series of
Securities;
(5) to comply with any requirement in order to effect
or maintain the qualification of this Indenture under the
TIA;
(6) to add to the covenants of the Company for the
benefit of the Holders of all or any series of Securities
(and if such covenants are to be for the benefit of less
than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such
series), or to surrender any right or power herein conferred
upon the Company;
(7) to add any additional Events of Default with
respect to all or any series of the Securities (and, if such
Events of Default are applicable to less than all series of
Securities, specifying the series to which such Events of
Default are applicable);
(8) to change or eliminate any of the provisions of
this Indenture, provided that any such change or elimination
shall become effective only when there is no outstanding
Security of any series created prior to the execution of
such amendment or supplemental indenture that is adversely
affected in any material respect by such change in or
elimination of such provision;
(9) to establish the form or terms of Securities of
any series as permitted by Section 2.01;
(10) to supplement any of the provisions of this
Indenture to such extent as shall be necessary to permit or
facilitate the defeasance and discharge of any series of
Securities pursuant to Section 8.01; provided, however, that
any such action shall not adversely affect the interest of
the Holders of Securities of such series or any other series
of Securities in any material respect; or
(11) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to
the Securities of one or more series and to add to or change
any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to
the requirements of Section 7.08.
Upon the request of the Company, accompanied by a Board
Resolution, and upon receipt by the Trustee of the documents
described in Section 9.06, the Trustee shall, subject to Section
9.06, join with the Company in the execution of any supplemental
indenture authorized or permitted by the terms of this Indenture
and make any further appropriate agreements and stipulations that
may be therein contained. After an amendment, supplement or
waiver under this Section 9.01 becomes effective, the Company
shall mail to the Holders of each Security affected thereby a
notice briefly describing the amendment, supplement or waiver.
Any failure of the Company to mail such notice, or any defect
therein, shall not, however, in any way impair or affect the
validity of any such amendment, supplement or waiver.
Section 9.02 With Consent of Holders.
Except as provided below in this Section 9.02, the
Company and the Trustee may amend or supplement this Indenture
with the written consent (including consents obtained in
connection with a tender offer or exchange offer for Securities
of any one or more series or all series or a solicitation of
consents in respect of Securities of any one or more series or
all series, provided that in each case such offer or solicitation
is made to all Holders of then outstanding Securities of each
such series (but the terms of such offer or solicitation may vary
from series to series)) of the Holders of at least a majority in
principal amount of the then outstanding Securities of all series
affected by such amendment or supplement (acting as one class).
Upon the request of the Company, accompanied by a Board
Resolution, and upon the filing with the Trustee of evidence of
the consent of the Holders as aforesaid, and upon receipt by the
Trustee of the documents described in Section 9.06, the Trustee
shall join with the Company in the execution of such amendment or
supplemental indenture.
It shall not be necessary for the consent of the
Holders under this Section 9.02 to approve the particular form of
any proposed amendment, supplement or waiver, but it shall be
sufficient if such consent approves the substance thereof.
The Holders of a majority in principal amount of the
then outstanding Securities of one or more series may waive
compliance in a particular instance by the Company with any
provision of this Indenture with respect to Securities of such
series (including waivers obtained in connection with a tender
offer or exchange offer for Securities of such series or a
solicitation of consents in respect of Securities of such series,
provided that in each case such offer or solicitation is made to
all Holders of then outstanding Securities of such series (but
the terms of such offer or solicitation may vary from series to
series)).
However, without the consent of each Holder affected,
an amendment, supplement or waiver under this Section 9.02 may
not:
(1) reduce the amount of Securities whose Holders must
consent to an amendment, supplement or waiver;
(2) reduce the rate of or change the time for payment
of interest, including default interest, on any Security;
(3) reduce the principal of, premium on or any mandatory
sinking fund payment with respect to, or change the Stated
Maturity of, any Security or reduce the amount of the
principal of an Original Issue Discount Security that would
be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 6.02;
(4) reduce the premium, if any, payable upon the
redemption of any Security or change the time at which any
Security may or shall be redeemed;
(5) change any obligation of the Company to pay
Additional Amounts with respect to any Security;
(6) change the coin or currency in which any Security or
any premium, interest or Additional Amounts with respect
thereto are payable;
(7) impair the right to institute suit for the
enforcement of any payment of principal of, premium (if any)
or interest on or any Additional Amounts with respect to any
Security pursuant to Sections 6.07 and 6.08, except as
limited by Section 6.06;
(8) make any change in the percentage of principal
amount of Securities necessary to waive compliance with
certain provisions of this Indenture pursuant to Section 6.04
or 6.07 or make any change in this sentence of Section 9.02;
or
(9) waive a continuing Default or Event of Default in
the payment of principal of, premium (if any) or interest on
or Additional Amounts with respect to the Securities.
A supplemental indenture that changes or eliminates any
covenant or other provision of this Indenture that has expressly
been included solely for the benefit of one or more particular
series of Securities, or that modifies the rights of the Holders
of Securities of such series with respect to such covenant or
other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
The right of any Holder to participate in any consent
required or sought pursuant to any provision of this Indenture
(and the obligation of the Company to obtain any such consent
otherwise required from such Holder) may be subject to the
requirement that such Holder shall have been the Holder of record
of any Securities with respect to which such consent is required
or sought as of a date identified by the Company in a notice
furnished to Holders in accordance with the terms of this
Indenture.
Section 9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Indenture or the
Securities shall comply in form and substance with the TIA as
then in effect.
Section 9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes
effective, a consent to it by a Holder is a continuing consent by
the Holder and every subsequent Holder of a Security or portion
of a Security that evidences the same debt as the consenting
Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may
revoke the consent as to his or her Security or portion of a
Security if the Trustee receives written notice of revocation
before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver becomes effective
in accordance with its terms and thereafter binds every Holder.
The Company may, but shall not be obligated to, fix a
record date (which need not comply with Section 316(c) of the
TIA) for the purpose of determining the Holders of Securities of
any series entitled to consent to any amendment, supplement or
waiver or to take any other action under this Indenture. If a
record date is fixed, then notwithstanding the provisions of the
immediately preceding paragraph, those Persons who were Holders
at such record date (or their duly designated proxies), and only
those Persons, shall be entitled to consent to such amendment,
supplement or waiver or to revoke any consent previously given,
whether or not such Persons continue to be Holders after such
record date. No consent shall be valid or effective for more
than 90 days after such record date unless consents from Holders
of the principal amount of Securities required hereunder for such
amendment or waiver to be effective shall have also been given
and not revoked within such 90-day period.
After an amendment, supplement or waiver becomes
effective, it shall bind every Holder, unless it is of the type
described in any of clauses (1) through (9) of Section 9.01
hereof. In such case, the amendment, supplement or waiver shall
bind each Holder who has consented to it and every subsequent
Holder that evidences the same debt as the consenting Holder's
Security.
Section 9.05 Notation on or Exchange of Securities.
If an amendment or supplement changes the terms of an
outstanding Security, the Company may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Security at the request of the
Company regarding the changed terms and return it to the Holder.
Alternatively, if the Company so determines, the Company in
exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms.
Failure to make the appropriate notation or to issue a new
Security shall not affect the validity of such amendment or
supplement.
Securities of any series authenticated and delivered
after the execution of any amendment or supplement may, and shall
if required by the Company, bear a notation in form approved by
the Company as to any matter provided for in such amendment or
supplement.
Section 9.06 Trustee to Sign Amendments, etc.
The Trustee shall sign any amendment or supplement
authorized pursuant to this Article if the amendment or
supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign it. In signing or refusing to
sign such amendment to supplement, the Trustee shall be entitled
to receive, and, subject to Section 7.01 hereof, shall be fully
protected in relying upon, an Opinion of Counsel provided at the
expense of the Company as conclusive evidence that such amendment
or supplement is authorized or permitted by this Indenture, that
it is not inconsistent herewith, and that it will be valid and
binding upon the Company in accordance with its terms.
ARTICLE X
MISCELLANEOUS
Section 10.01 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by operation of TIA S 318(c),
the imposed duties shall control.
Section 10.02 Notices.
Any notice or communication by the Company or the
Trustee to the other is duly given if in writing and delivered in
person or mailed by first-class mail (registered or certified,
return receipt requested), telex, facsimile or overnight air
courier guaranteeing next day delivery, to the other's address:
If to the Company:
R&B Falcon Corporation
901 Threadneedle
Suite 200
Houston, Texas 77079
Attention: Chief Financial Officer
If to the Trustee:
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent
notices or communications.
All notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if by facsimile; and the next Business Day
after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed
by first-class mail, postage prepaid, to the Holder's address
shown on the register kept by the Registrar. Failure to mail a
notice or communication to a Holder or any defect in it shall not
affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner
provided above within the time prescribed, it is duly given,
whether or not the addressee receives it, except in the case of
notice to the Trustee, it is duly given only when received.
If the Company mails a notice or communication to
Holders, it shall mail a copy to the Trustee and each Agent at
the same time.
All notices or communications, including without
limitation notices to the Trustee or the Company by Holders,
shall be in writing, except as otherwise set forth herein.
In case by reason of the suspension of regular mail
service, or by reason of any other cause, it shall be impossible
to mail any notice required by this Indenture, then such method
of notification as shall be made with the approval of the Trustee
shall constitute a sufficient mailing of such notice.
Section 10.03 Communication by Holders with Other
Holders.
Holders may communicate pursuant to TIA S 312(b) with
other Holders with respect to their rights under this Indenture
or the Securities. The Company, the Trustee, the Registrar and
anyone else shall have the protection of TIA S 312(c).
Section 10.04 Certificate and Opinion as to
Conditions Precedent.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company
shall, if requested by the Trustee, furnish to the Trustee at the
expense of the Company;
(1) an Officers' Certificate (which shall include the
statements set forth in Section 10.05) stating that, in the
opinion of the signers, all conditions precedent and
covenants, if any, provided for in this Indenture relating
to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the
statements set forth in Section 10.05 hereof) stating that, in
the opinion of such counsel, all such conditions precedent and
covenants have been complied with.
Section 10.05 Statements Required in Certificate or
Opinion.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture
(other than a certificate provided pursuant to TIA S 314(a)(4))
shall comply with the provisions of TIA S 314(e)) and shall
include:
(1) a statement that the Person making such certificate
or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he
or she has made such examination or investigation as is
necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether or not, in the opinion of
such Person, such condition or covenant has been complied
with.
Section 10.06 Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or
at a meeting of Holders. The Registrar or the Paying Agent may
take reasonable rules and set reasonable requirements for its
functions.
Section 10.07 Legal Holidays.
If a payment date is a Legal Holiday at a Place of
Payment, payment may be made at that place on the next succeeding
day that is not a Legal Holiday, and no interest shall accrue for
the intervening period.
Section 10.08 No Recourse Against Others.
A director, officer, employee, stockholder, partner or
other owner of the Company or the Trustee, as such, shall not
have any liability for any obligations of the Company under the
Securities or for any obligations of the Company or the Trustee
under this Indenture or for any claim based on, in respect of or
by reason of such obligations or their creation. Each Holder by
accepting a Security waives and releases all such liability. The
waiver and release shall be part of the consideration for the
issue of Securities.
Section 10.09 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
Section 10.10 No Adverse Interpretation of Other
Agreements.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or any other
Subsidiary of the Company. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 10.11 Successors.
All agreements of the Company in this Indenture and the
Securities shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successors.
Section 10.12 Severability.
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions
shall, to the fullest extent permitted by applicable law, not in
any way be affected or impaired thereby.
Section 10.13 Counterpart Originals.
The parties may sign any number of copies of this
Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
Section 10.14 Table of Contents; Headings; etc.
The table of contents, cross-reference table and
headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be
considered a part hereof and shall in no way modify or restrict
any of the terms or provisions hereof.
Section 10.15 Agent for Service of Process.
The Company hereby designates CT Corporation System,
currently located at 1633 Broadway, New York, New York, as its
authorized agent upon whom process may be served in any action,
suit or proceeding that may be instituted in any State or Federal
court sitting in the County of New York of the State of New York
pertaining to this Indenture or any matter arising out of or
related to this Indenture, and the Company will accept the
jurisdiction of such court in such action, and waive, to the
fullest extent permitted by applicable law, any defense based
upon lack of personal jurisdiction or venue or forum non
conveniens. The Company may and shall (to the extent the process
agent ceases to be able to be served on the basis contemplated
herein), by written notice to the Trustee, designate such
additional or alternative agents for service of process under
this Section 10.15 that (i) maintains an office located in the
Borough of Manhattan, The City of New York in the State of New
York, (ii) are either (a) counsel for the Company or (b) a
corporate service company which acts as agent for service of
process for other persons in the ordinary course of its business
and (iii) agrees to act as agent for service of process in
accordance with this Section 10.15. Such notice shall identify
the name of such agent for process and the address of such agent
for process in the Borough of Manhattan, The City of New York,
State of New York. Upon the request of any holder of a
Debenture, the Trustee shall deliver such information to such
holder. Notwithstanding the foregoing, there shall, at all
times, be at least one agent for service of process for the
Company appointed and acting in accordance with this Section
10.15. A copy of any such process shall be sent or given to the
Company at the address for notices specified in Section 10.02
hereof. The Company shall maintain the designation of such
authorized agent until two years after termination of the
Company's obligation under this Indenture pursuant to Section
8.01.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above
written.
R&B FALCON CORPORATION
By:_______________________________
Name:
Title:
__________________________________,
as Trustee
By:________________________________
Name:
Title:
R&B Falcon Corporation
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of , 1999
_____________________
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
----------- ---------
S 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(a)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . 7.10
(b) . . . . . . . . . . . . . . . . . . . . . 7.08, 7.10
S 311(a) . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . 7.11
(c) . . . . . . . . . . . . . . . . . . . Not Applicable
S 312(a) . . . . . . . . . . . . . . . . . . . . . . . . 2.07
(b) . . . . . . . . . . . . . . . . . . . . . . . . 10.03
(c) . . . . . . . . . . . . . . . . . . . . . . . . 10.03
S 313(a) . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(b) . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(c) . . . . . . . . . . . . . . . . . . . . . . . . 7.06
(d) . . . . . . . . . . . . . . . . . . . . . . . . 7.06
S 314(a) . . . . . . . . . . . . . . . . . . . . . 4.03, 4.04
(b) . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . . . 10.04
(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . 10.04
(c)(3) . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . 10.05
S 315(a) . . . . . . . . . . . . . . . . . . . . . . . 7.01(b)
(b) . . . . . . . . . . . . . . . . . . . . . . . . 7.05
(c) . . . . . . . . . . . . . . . . . . . . . . . 7.01(a)
(d) . . . . . . . . . . . . . . . . . . . . . . . 7.01(c)
(d)(1) . . . . . . . . . . . . . . . . . . . . . 7.01(c)(1)
(d)(2) . . . . . . . . . . . . . . . . . . . . . 7.01(c)(2)
(d)(3) . . . . . . . . . . . . . . . . . . . . . 7.01(c)(3)
(e) . . . . . . . . . . . . . . . . . . . . . . . . 6.11
R&B Falcon Corporation
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of , 1999
_____________________
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
S 316(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . 6.05
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . 6.04
(a)(2) . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(last sentence) . . . . . . . . . . . . . . . . . . 2.11
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 6.07
S 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 6.08
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 6.09
(b) . . . . . . . . . . . . . . . . . . . . . . . . . 2.06
S 318(a) . . . . . . . . . . . . . . . . . . . . . . . . 10.01
___________________
Note:This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
