AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 11, 1999.
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------
MIDCOAST ENERGY RESOURCES, INC.
(Exact name of registrant as specified in its charter)
NEVADA 76-0378638
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1100 LOUISIANA, SUITE 2950
HOUSTON, TEXAS 77002
PHONE: (713) 650-8900
FAX: (713) 650-3232
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
See "Table of Additional Registrants" on the following page for information
relating to the subsidiaries of Midcoast Energy Resources, Inc. that may
guarantee payments owed on the Debt Securities registered hereunder.
DAN C. TUTCHER
PRESIDENT AND CHIEF EXECUTIVE OFFICER
MIDCOAST ENERGY RESOURCES, INC.
1100 LOUISIANA, SUITE 2950
HOUSTON, TEXAS 77002
PHONE: (713) 650-8900
FAX: (713) 650-3232
(Name, address, including zip code and telephone number, including area code, of
agent for service)
------------------------
COPIES TO:
ROBERT G. REEDY
PORTER & HEDGES, L.L.P.
700 LOUISIANA STREET, 35TH FLOOR
HOUSTON, TEXAS 77002-2764
PHONE: (713) 226-0600
FAX: (713) 228-1331
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] ____________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=====================================================================================================
TITLE OF EACH CLASS OF PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO BE REGISTERED(1)(2) AGGREGATE OFFERING PRICE(3)(4) REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------
<S> <C> <C>
Debt Securities......................
- -----------------------------------------------------------------------------------------------------
Preferred Stock, par value $.001 per
share................................
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Common Stock, par value $.01 per
share................................
- -----------------------------------------------------------------------------------------------------
Warrants.............................
- -----------------------------------------------------------------------------------------------------
Guarantees(5)........................
- -----------------------------------------------------------------------------------------------------
Total........................ $200,000,000(6)(7) $55,600
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</TABLE>
(1) Includes such indeterminate number of shares of securities as may be issued
upon conversion or exchange of any Preferred Stock or debt securities that
provide for conversion or exchange into other securities.
(2) Certain information as to each class or series of securities to be
registered is not specified in accordance with General Instruction II.D. to
Form S-3 under the Securities Act of 1933, as amended.
(3) If any debt securities are issued with original issue discount, such greater
amount shall result in an aggregate public offering price of $200,000,000,
in U.S. dollars or equivalent thereof in foreign currency or currency units.
In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this registration statement exceed
$200,000,000, or the equivalent thereof in foreign currencies or currency
units.
(4) The proposed maximum aggregate offering price will be determined from time
to time by the registrant in connection with, and at the time of, the
issuance by the registrant of the securities registered hereunder. Estimated
solely for the purpose of computing the registration fee pursuant to Rule
457(o).
(5) Guarantees that may be provided by the subsidiaries named in the "Table of
Additional Registrants" on the following page, with respect to the Debt
Securities registered hereunder. No additional consideration will be
received for such guarantees. Pursuant to Rule 457(n) under the Securities
Act of 1933, as amended, no additional filing fee is required in connection
with such guarantees.
(6) Represents the aggregate (i) issue price of any debt securities issued with
original issue discount, (ii) aggregate principal amount of all other debt
securities, (iii) the aggregate liquidation preference of any Preferred
Stock, (iv) the aggregate issue price of any Warrants and the aggregate
exercise price of any securities issuable upon exercise of the Warrants, and
(v) amount used when computing the registration fee pursuant to Rule 457(o)
for Common Stock.
(7) No separate consideration will be received for any securities issuable upon
conversion or exchange of Preferred Stock or debt securities registered
hereunder.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
================================================================================
<PAGE>
TABLE OF ADDITIONAL REGISTRANTS
UNDER REGISTRATION STATEMENT ON FORM S-3
The following subsidiaries of Midcoast Energy Resources, Inc. are
co-registrants under this Registration Statement for the purpose of providing
guarantees, if any, of payments on Debt Securities registered hereunder:
JURISDICTION OF I.R.S. EMPLOYER
NAME INCORPORATION IDENTIFICATION NO.
- ------------------------------------- ----------------- ------------------
Magnolia Resources, Inc.............. Mississippi 64-0883884
Magnolia Gathering, Inc.............. Alabama 72-1347862
Midcoast Interstate Transmission,
Inc.................................. Alabama 63-0272062
Tennessee River Intrastate Gas
Company, Inc....................... Alabama 63-0935012
<PAGE>
Subject to completion, dated January 11, 1999.
The information in this prospectus is not complete and may be changed. We
may not offer these securities until the Registration Statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and we are not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
PROSPECTUS
[LOGO]
$200,000,000
MIDCOAST ENERGY RESOURCES, INC.
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
WARRANTS
PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND
INTEREST, ON DEBT SECURITIES UNCONDITIONALLY GUARANTEED
BY MIDCOAST ENERGY RESOURCES, INC. AND SUBSIDIARY REGISTRANTS
- --------------------------------------------------------------------------------
You should read this prospectus and any supplement carefully before you
invest. This prospectus may not be used to consummate sales of securities unless
accompanied by a prospectus supplement.
The common stock offered in this prospectus may, subject to certain
conditions, also be offered and sold from time to time pursuant to this
prospectus by Selling Security Holders (as defined later). See "Selling
Security Holders" and "Plan of Distribution" for information about the sales
of common stock pursuant to this prospectus by Selling Security Holders.
Our common stock is listed and traded on the American Stock Exchange under
the symbol "MRS."
- --------------------------------------------------------------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved nor disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
THIS PROSPECTUS IS DATED , 1999.
<PAGE>
YOU SHOULD RELY ONLY ON THE INFORMATION INCORPORATED BY REFERENCE OR
PROVIDED IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. WE HAVE NOT AUTHORIZED
ANYONE ELSE TO PROVIDE YOU WITH DIFFERENT INFORMATION. WE ARE NOT MAKING AN
OFFER OF THESE SECURITIES IN ANY STATE WHERE THE OFFER IS NOT PERMITTED. YOU
SHOULD NOT ASSUME THAT THE INFORMATION IN THIS PROSPECTUS OR ANY PROSPECTUS
SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE FRONT OF THOSE
DOCUMENTS.
TABLE OF CONTENTS
SECTION PAGES
- ------------------------------------- ----
About This Prospectus................ 2
Where You Can Find More
Information.......................... 2
Incorporation Of Certain Documents By
Reference............................ 3
Summary.............................. 4
Forward-Looking Statements........... 4
Use of Proceeds...................... 5
Ratio of Earnings to Fixed Charges
and Earnings to Fixed Charges and
Preferred Stock Dividends.......... 5
Description of Debt Securities....... 5
Description of Capital Stock......... 11
Description of Warrants.............. 13
Selling Security Holders............. 15
Plan of Distribution................. 15
Legal Matters........................ 17
Experts.............................. 17
ABOUT THIS PROSPECTUS
Midcoast Energy Resources, Inc. (the "Company," "we," "us," and
"our") may offer from time to time any combination of the securities described
in this prospectus. The aggregate initial offering price of the securities that
we will offer will not exceed $200,000,000. We will offer the securities in
amounts, at prices and on terms to be determined by market conditions at the
time of our offering. This prospectus also may be used for resales of the
securities issued under this prospectus. See "Use of Proceeds."
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission using a shelf registration process. This
means:
o over the next two years, we may issue the debt securities, preferred stock,
common stock and warrants covered by this prospectus;
o this prospectus provides a general description of the securities we may
offer;
o we will provide a prospectus supplement each time we issue the securities;
o the prospectus supplement will provide specific information about the terms
of that offering and also may add, update or change information contained
in this prospectus.
You should read both this prospectus and any prospectus supplement together
with additional information described under the heading "Where You Can Find
More Information."
WHERE YOU CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission (the "SEC") a
registration statement on Form S-3 under the Securities Act of 1933, as amended
("Securities Act"), with respect to the securities we are offering. This
prospectus does not contain all the information contained in the registration
statement, such as its exhibits and schedules. You should refer to the
registration
2
<PAGE>
statement, including the exhibits and schedules, for further information about
us and the securities we are offering. Statements we make in this prospectus
about certain contracts or other documents are not necessarily complete. When we
make such statements, we refer you to the copies of the contracts or documents
that are filed as exhibits to the registration statement because those
statements are qualified in all respects by reference to those exhibits. The
registration statement, including exhibits and schedules, is on file at the
offices of the SEC and may be inspected without charge.
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings, including the registration statement,
are available to the public over the Internet at the SEC's web site at
http://www.sec.gov. We invite you to visit our web site at
http://www.midcoastenergy.com. You also may read and copy any document we file
at the SECs public reference rooms in Washington, D.C.; New York, New York; and
Chicago, Illinois. The Public Reference Room in Washington, D.C. is located at
450 Fifth Street, N.W. Please call the SEC at 1-800-SEC-0330 for further
information about the public reference rooms.
We also provide information to the AMEX because our common stock is traded
on the AMEX. You may obtain reports and other information at the offices of the
AMEX at 68 Trinity Place, New York, New York 10006-1881.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
SEC rules allow us to include some of the information required to be in the
registration statement by incorporating that information by reference to
documents we file with the SEC. That means we can disclose important information
to you by referring you to those documents. The information incorporated by
reference is an important part of this prospectus. Furthermore, information that
we file later with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed below, including
any future filings made with the SEC under Sections 13(a), 13(c), 14, or 15(d)
of the Securities Exchange Act of 1934, as amended ("Exchange Act"), until we
sell all of the securities covered by this prospectus:
o Current Reports on Form 8-K, filed on October 21, 1996 and Form 8-K/A
filed on November 13, 1996;
o Prospectus, filed June 27, 1997, pursuant to Rule 424(b) of the
Securities Act;
o Current Reports on Form 8-K, filed on November 13, 1997 and Form 8-K/A
filed on January 12, 1998;
o Annual Report on Form 10-K for the year ended December 31, 1997;
o Proxy Statement on Schedule 14A, filed on April 16, 1998;
o Quarterly Report on Form 10-Q for the quarter ended March 31, 1998;
o Quarterly Report on Form 10-Q for the quarter ended June 30, 1998;
o Quarterly Report on Form 10-Q for the quarter ended September 30,
1998;
o Current Reports on Form 8-K, filed on September 22, 1998 and Form
8-K/A filed on November 20, 1998; and
o The description of the Company's common stock contained in Form 8-A,
filed on July 24, 1996, including any amendments or reports that have
been filed to update the description.
We will provide, without charge, to each person to whom a copy of this
prospectus has been delivered, including any beneficial owner, a copy of any of
these filings, by writing or telephoning us at the following address:
Midcoast Energy Resources, Inc.
1100 Louisiana, Suite 2950
Houston, Texas 77002
(713) 650-8900
Attention: Duane S. Herbst, Corporate Secretary
3
<PAGE>
SUMMARY
THE COMPANY
The Company transports, gathers, processes and markets natural gas and
other petroleum products through 56 company-owned interstate and intrastate
pipelines. These pipelines include 5 transmission pipeline systems, 22 end-user
pipeline systems and 29 gathering systems covering approximately 2,250 miles in
nine states with an aggregate throughput capacity of approximately 1.8 Bcf/day.
We are a Houston-based pipeline company with regional offices in Texas, Alabama,
Louisiana and Mississippi.
We provide transportation services through our pipelines to end-users,
natural gas producers and other pipeline companies. We also offer natural gas
marketing and processing services to these same customers. In addition, we
acquire or construct pipelines to supply natural gas to industrial and municipal
end-users and gather natural gas at the wellhead for natural gas producers.
BUSINESS STRATEGY
Our principal business strategy is to increase our earnings and cash flow
by acquiring pipeline systems in targeted growth areas, by enhancing the
profitability of our existing systems and processing plants through increased
utilization and by improving cost efficiencies.
We implement our strategy through the following steps:
o Acquire pipeline and processing systems in areas where demand for
natural gas transportation services is growing;
o Aggressively market and expand existing pipelines and processing
systems to increase their utilization;
o Maximize operating efficiencies by focusing on reducing costs.
o Pursue direct sales to industrial plants and municipality end-users
who seek alternative supplies to meet their energy needs; and
o Construct pipelines where opportunity arises.
Our principal executive offices are located at 1100 Louisiana, Suite 2950,
Houston, Texas 77002, and our telephone number is (713)650-8900.
FORWARD-LOOKING STATEMENTS
The statements we make in this prospectus, in any prospectus supplement, or
in the documents we have incorporated by reference that are not statements of
historical fact, may be "forward looking statements" within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act.
Forward-looking statements generally can be identified by the use of
forward-looking terminology such as "may," "will," "expect," "intend,"
"estimate," "anticipate" or "believe," or similar terminology. The
forward-looking statements may include discussions about business strategy and
expectations concerning market position, future operations, margins,
profitability, liquidity and capital resources, and statements concerning the
integration into our business of the operations we have acquired. Although we
believe that the expectations in such statements are or will be reasonable, we
cannot give any assurance that those expectations will be correct. We caution
you not to place undue reliance on these forward-looking statements, which speak
only as of the date of this prospectus or any prospectus supplement. Our
operations are subject to several uncertainties, risks and other influences,
many of which are outside our control and any of which could materially affect
our results of operations and ultimately prove the statements we make to be
inaccurate. We discuss important factors that could cause actual results to
differ materially from our expectations elsewhere in this prospectus or in any
prospectus supplement.
4
<PAGE>
USE OF PROCEEDS
Except as otherwise described in any prospectus supplement, we will use the
net proceeds from the sale of securities for general corporate purposes, which
may include refinancings of indebtedness, working capital, capital expenditures,
acquisitions and repurchases of securities. Specific information concerning the
use of proceeds from any sale of securities will be included in the prospectus
supplement relating to such securities.
RATIO OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The ratio of our earnings to our fixed charges and earnings to fixed
charges and preferred stock dividends for each of the fiscal years indicated and
for the nine-months ended September 30, 1998 are as follows:
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
----------------- -----------------------------------------------------
1998 1997 1996 1995 1994 1993
----------------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges...... 4.25 5.99 5.35 7.16 1.72 5.24
Ratio of earnings to fixed charges and
preferred stock dividends............. 4.25 5.99 5.08 6.14 1.33 4.01
</TABLE>
For these ratios, earnings consist of income before income taxes and fixed
charges. Fixed charges consist of interest expense, including amounts
capitalized, that portion of rent expense which management deems to be
attributable to interest costs and amortization of debt expense.
DESCRIPTION OF DEBT SECURITIES
The debt securities will be the general unsecured obligation of the
Company. The following description of the Company's unsecured debt securities
will be of either senior notes and debentures ("Senior Debt Securities") or
subordinated note and debentures ("Subordinated Debt Securities") to be issued
under one or more separate indentures, in each case between the Company, the
Subsidiary Guarantors (as defined later) and the Trustee, and in substantially
the form that has been filed as an exhibit to the registration statement of
which this prospectus is a part, subject to such amendments or supplements as
may be adopted from time to time. We will issue Senior Debt Securities under a
Senior Indenture and Subordinated Debt Securities under a Subordinated
Indenture. We refer to the Senior Indenture and the Subordinated Indenture below
singularly as the Indenture or collectively as the Indentures. We refer to the
Senior Trustee and the Subordinated Trustee below individually as a Trustee and
collectively as the Trustees.
We have summarized selected provisions of the Indentures below. The summary
is not complete. The particular terms of the debt securities we might offer and
the extent to which these general provisions apply will be described in a
prospectus supplement relating to the offered debt securities. We have included
the forms of the Indentures under which the offered debt securities will be
issued as exhibits to the registration statement, and you should read the
Indentures for provisions that may be important to you.
GENERAL
The payment obligations of the Company under any debt securities may, if
specified in any prospectus supplement, be fully and unconditionally guaranteed
by one or more of the following subsidiaries of the Company: Magnolia Resources,
Inc., Magnolia Gathering, Inc., Midcoast Interstate Transmission, Inc., and
Tennessee River Intrastate Gas Company, Inc. (the "Subsidiary Guarantors"). If
any series of debt securities is guaranteed by a Subsidiary Guarantor (a
"Subsidiary Guarantee"), the applicable prospectus supplement will identify
each Subsidiary Guarantor and describe such Subsidiary Guarantee, including the
circumstances in which it may be released. Any guarantee of debt securities by a
Subsidiary Guarantor will be on a full and unconditional basis.
5
<PAGE>
Except as may be described in any prospectus supplement, the Indentures do
not limit the aggregate principal amount of debt securities that can be issued
thereunder. Debt securities in one or more series, each in an aggregate
principal amount authorized by the Company before issuance, and may be in any
currency or currency unit that we may designate. We may issue debt securities of
a series may be issued in registered or global form. The rights of holders of
debt securities will be limited to the assets of the Company and the debt
securities will not be obligations of any of the Company's subsidiaries, except
in the case of any debt securities that are guaranteed by such subsidiaries.
Except as may be described in any prospectus supplement, the Indentures do not
limit the ability of the Company's subsidiaries to incur such restrictions in
the future. The right of the Company to participate in the assets of any
subsidiary (and thus the ability of holders of the debt securities to benefit
indirectly from such assets) is generally subject to the prior claims of
creditors, including trade creditors, of that subsidiary, except to the extent
that the Company is recognized as a creditor of such subsidiary, in which case
the Company's claims would still be subject to any security interest of other
creditors of such subsidiary. Unless the debt securities are guaranteed by the
Company's subsidiaries, the debt securities will be structurally subordinated to
creditors, including trade creditors, of subsidiaries of the Company with
respect to the assets of the subsidiaries against which such creditors have a
more direct claim. The Senior Debt Securities will rank equally with all of our
other senior debt. The Subordinated Debt Securities will have a junior position
to all of our senior debt.
Other than as may be described in a prospectus supplement, neither
Indenture will contain any covenant or provision that affords debt holders
protection in the event of a highly leveraged transaction by the Company. These
same holders would not have any right to require the Company to repurchase the
debt securities, in the event that the credit rating of any debt securities
declined as a result of the Company's involvement in a takeover,
recapitalization, similar restructuring or otherwise.
A prospectus supplement including the Indentures, filed as an exhibit,
relating to any series of debt securities being offered by the Company will
include specific terms relating to the offering. These terms will include some
or all of the following:
o the title and type of debt securities being offered, which may
include medium term notes;
o the total principal amount of debt securities being offered;
o whether the debt securities will be issued in one or more form of
global securities and whether such global securities are to be
issuable in temporary global form or permanent global form;
o whether the debt securities will be guaranteed by any of the
subsidiaries of the Company;
o the dates on which the principal of, and premium, if any, on the
offered debt securities is payable;
o the interest rate or the method of determining the interest rate;
o the date from which interest will accrue;
o the interest payment dates;
o the place where the principal, premium and interest is payable;
o any optional redemption periods;
o any sinking fund or other provisions that would obligate us to
repurchase or otherwise redeem the debt securities;
o whether the debt securities will be convertible into shares of
common stock or exchangeable for other of our securities, and if
so, the terms of conversion or exchange;
o the currency or currencies, if other than U.S. dollars, in which
principal payments or other payments will be payable;
6
<PAGE>
o events causing acceleration of maturity;
o any provisions granting special rights to holders when the
specified event occurs;
o any changes to or additional events of default or covenants;
o any material tax consequences and special tax implications of
ownership and disposition of the debt securities; and
o any other terms of the debt securities.
The debt securities will be issued in registered form. There will be no
service charge for any registration, transfer or exchange of debt securities. We
may, however, require payment of an amount that would be sufficient to cover any
tax or other governmental charge we may incur.
We may sell the debt securities at a discount (which may be substantial)
below their stated principal amount, either bearing no interest or bearing
interest at a rate that may be below the market rate at the time we issue the
debt securities. We will describe any material tax consequences and other
special considerations applicable to discounted debt securities in the
prospectus supplement.
If we sell any of the offered debt securities for any foreign currency or
currency unit, or if any of the principal, premium or interest, if any, is
payable on any of the offered debt securities, the restrictions, elections, tax
consequences, specific terms and other information pertaining to the offered
debt securities and such foreign currency or foreign currency unit will be set
forth in the prospectus supplement describing such offered debt securities.
DENOMINATIONS
We will issue the debt securities in registered form of $1,000 each or
multiples thereof.
SUBORDINATION
Under the Subordinated Indenture, payment of the principal, interest and
any premium on the Subordinated Debt Securities generally will be subordinated
and junior in right of payment to the prior payment in full of all Senior
Indebtedness. The Subordinated Indenture provides that no payment of principal,
interest and any premium on the Subordinated Debt Securities may be made in the
event:
o of any insolvency, bankruptcy or similar proceeding involving the
Company or our property;
o we fail to pay the principal, interest, any premium or any other
amounts on any Senior Indebtedness when due;
o of a default (other than a payment default with respect to the Senior
Indebtedness) that imposes a payment blockage on the Subordinated Debt
Securities for a maximum of 179 days at any one time, unless the Event
of Default has been cured or waived or shall no longer exist; or
o the principal and any accrued interest on any series of Subordinated
Debt Securities has been declared due and payable upon an Event of
Default described in the Subordinated Debt Indenture and such
declaration has not been rescinded.
In the event of any bankruptcy, insolvency, reorganization or other similar
proceeding relating to us, whether voluntary or involuntary, all of our
obligations to holders of Senior Indebtedness shall be entitled to be paid in
full before any payment shall be made on account of the principal of, or
premium, if any, or interest, if any, on the Subordinated Debt Securities of any
series.
In the event of any such bankruptcy, insolvency, reorganization or other
similar proceeding, holders of the Subordinated Debt Securities of any series,
together with holders of indebtedness ranking equally with the Subordinated Debt
Securities, shall be entitled, ratably, to be paid amounts that are due to them,
but only from assets remaining after we pay in full the amounts that we owe on
our Senior Indebtedness. We will make these payments before we make any payment
or other distribution on account of any indebtedness that ranks junior to the
Subordinated Debt Securities.
7
<PAGE>
However, if we have paid in full all of the sums that we owe with respect to our
Senior Indebtedness and creditors in respect of our obligations associated with
such derivative products have not received payment in full of amounts due to
them, then the available remaining assets shall be applied to payment in full of
those obligations before any payment is made on the Subordinated Debt
Securities.
In the event that we are in default on any of our Senior Indebtedness or in
the event that any such default would occur as a result of certain payments,
then we may not make any payments on the Subordinated Debt Securities or effect
any exchange or retirement of any of the Subordinated Debt Securities unless and
until such default has been cured or waived or otherwise ceases to exist.
No provision contained in the Subordinated Indenture or the Subordinated
Debt Securities affects the obligation of the Company, which is absolute and
unconditional, to pay, when due, principal of, premium, if any, and interest on
and any of the Subordinated Indenture and the Subordinated Debt Securities do
not prevent the occurrence of any default or Event of Default under the
Subordinated Indenture or limit the rights of the Subordinated Trustee or any
holder of Subordinated Debt Securities, subject to the three preceding
paragraphs, to pursue any other rights or remedies with respect to the
Subordinated Debt Securities.
As a result of these subordination provisions, in the event of the
liquidation, bankruptcy, reorganization, insolvency, receivership or similar
proceeding or an assignment for the benefit of our creditors or any of our
subsidiaries or a marshaling of assets or liabilities of the Company and its
subsidiaries, holders of Subordinated Debt Securities may receive ratably less
than other creditors.
If this prospectus is being delivered in connection with a series of
Subordinated Debt Securities, the accompanying prospectus supplement or the
information incorporated herein by reference will set forth the approximate
amount of Senior Indebtedness outstanding as of the end of the most recent
fiscal quarter.
The Subordinated Indenture defines Senior Indebtedness to include all notes
or other unsecured evidences of indebtedness, including guarantees of the
Company for money borrowed by the Company, not expressed to be subordinate or
junior in right of payment to any other indebtedness of the Company and all
extensions of such indebtedness.
EVENTS OF DEFAULT; REMEDIES
The following are Events of Default under each Indenture:
o our failure to pay principal or any premium on any debt security when
due;
o our failure to pay any interest on any debt security when due,
continued for 30 days;
o our failure to deposit any mandatory sinking fund payment when due,
continued for 30 days;
o our failure to perform any other covenant or warranty in the Indenture
that continues for 90 days after written notice;
o our certain events of bankruptcy, insolvency or reorganization; and
o our any other Event of Default as may be specified with respect to
debt securities of such series.
An Event of Default for a particular series of debt securities does not
necessarily constitute an Event of Default for any other series of debt
securities. The Trustee may withhold notice to the holders of debt securities of
any default (except in the payment of principal or interest) if the Trustee
considers withholding of notice to be in the best interest of the holders.
If an Event of Default occurs, either the Trustee or the holders of at
least 25% of the principal amount of the outstanding debt securities may declare
the principal amount of the debt securities of the applicable series to be due
and payable immediately. If this happens, subject to certain conditions, the
holders of a majority of the principal amount of the outstanding debt securities
of such series can void the declaration. These conditions include the
requirement that we have paid or deposited with the
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Trustee a sum sufficient to pay all overdue principal and interest payments on
the series of debt securities subject to the default. If an Event of Default
occurs due to certain events of bankruptcy, insolvency or reorganization, the
principal amount of the outstanding debt securities of all series will become
immediately due and payable without any declaration or other act on the part of
either Trustee or any holder.
Depending on the terms of our indebtedness, an Event of Default under an
Indenture may cause a cross default on such other indebtedness.
Other than its duties in the case of default, a Trustee is not obligated to
exercise any of its rights or powers under any Indenture at the request, order
or direction of any holder or group of holders unless the holders offer the
Trustee reasonable indemnity. If the holders provide reasonable indemnification,
the holders of a majority of the principal amount of any series of debt
securities may direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any power conferred upon
the Trustee for any series of debt securities.
The holders of a majority of the principal amount outstanding of any series
of debt securities may, on behalf of all holders of such series, waive any past
default under the Indenture, except in the case of a payment of principal or
interest default.
We are required to provide to each Trustee an annual statement of the
Company's performance of our obligations under the Indenture and any statement
of default, if applicable.
COVENANTS
Under the Indentures, we will:
o pay the principal, interest and any premium on the debt securities
when due;
o maintain a place of payment;
o deliver a report to the Trustee at the end of each fiscal year
reviewing the Company's obligations under the Indentures; and
o deposit sufficient funds with any payment agent on or before the due
date for any principal, interest or any premium.
MODIFICATION OR AMENDMENT OF INDENTURES
Under each Indenture, all rights and obligations and the rights of the
holders may be modified or amended with the consent of the holders of a majority
in aggregate principal amount of the outstanding debt securities of each series
affected by the modification or amendment. No modification or amendment may,
however, be made without the consent of the holders of any debt securities if
the following provisions are affected:
o change in the stated maturity date of the principal payment or
installment of any principal payment;
o reduction in the principal amount or premium on, or interest on any of
the debt securities;
o reduction in the percentage required for modifications or amendment to
be effective against any holder of any debt securities.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Each Indenture generally permits a consolidation or merger between us and
another corporation. Each Indenture also permits us to sell all or substantially
all of our property and assets. If this happens, the surviving or acquiring
corporation will assume all of our responsibilities and liabilities under the
Indentures, including the payment of all amounts due on the debt securities and
the performance of the covenants in the Indentures.
We will only consolidate or merge with or into any other company or sell
all, or substantially all, of our assets according to the terms and conditions
of the Indentures. The surviving or acquiring
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company will be substituted for us in the Indentures with the same effect as if
it had been an original party to the Indenture. Thereafter, the successor
company may exercise our rights and powers under any Indenture, in our name or
in its own name. Any act or proceeding our board of directors or any of our
officers are required or permitted to do may be done by the board of directors
or officers of the successor company. If we sell all or substantially all of our
assets, we shall be released from all our liabilities and obligations under any
Indenture and under the debt securities.
DISCHARGE AND DEFEASANCE
We will be discharged from our obligations under the debt securities of any
series at any time if we irrevocably deposit with the Trustee enough cash or
government securities to pay the principal, interest, any premium and any other
sums due through the stated maturity date or redemption date of the debt
securities of the series. In this event, the Company will be deemed to have paid
and discharged the entire indebtedness on all outstanding debt securities of the
series. Accordingly, the Company's obligations under the applicable Indenture
and the debt securities of such series to pay any principal, premium, or
interest, if any, shall cease, terminate and be completely discharged. The
holders of any debt securities shall then only be entitled to payment out of the
money or government securities deposited with the Trustee and such holders of
debt securities of such series will not be entitled to the benefits of the
Indenture except as relate to the registration, transfer and exchange of debt
securities and the replacement of lost, stolen or mutilated debt securities.
PAYMENT AND PAYING AGENTS
We will pay the principal, interest and premium on fully registered
securities at designated places. We will pay by check mailed to the person in
whose name the debt securities are registered on the day specified in the
Indentures or any prospectus supplement. We will pay debt securities payments in
other forms at a place we designate and specify in a prospectus supplement.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
Fully registered debt securities may be transferred or exchanged at the
corporate trust office of the Trustee or at any other office or agency we
maintain for such purposes without the payment of any service charge except for
any tax or governmental charge. The registered securities must be duly endorsed
or accompanied by a written instrument of transfer, if required by us or the
security registrar. We will describe any procedures for the exchange of debt
securities for other debt securities of the same series in the prospectus
supplement for that offering.
GLOBAL SECURITIES
We may issue the debt securities of a series in whole or in part in the
form of one or more global certificates that will be deposited with a depositary
we identify in a prospectus supplement. We may issue global securities in
registered form and in either temporary or permanent form. Unless and until it
is exchanged in whole or part for the individual Debt Securities it represents,
the depositary or its nominee may not transfer a global security except as a
whole. The depositary for a global security and its nominee may only transfer
the global security between themselves or their successors.
We will make principal, premium and interest payments on global securities
to the depositary or the nominee it designates as the registered owner for such
global securities. The depositary or its nominee will be responsible for making
payments to you and other holders of interests in the global securities. We and
the paying agents will treat the persons in whose names the global securities
are registered as the owners of such global securities for all purposes. Neither
we nor the paying agents have any direct responsibility or liability for the
payment of principal, premium or interest to owners of beneficial interests in
the global securities.
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DESCRIPTION OF CAPITAL STOCK
As of December 31, 1998, our authorized capital stock was 25,000,000 shares
of common stock, par value $.01 per share, and 5,000,000 shares of preferred
stock, par value $.001 per share. As of that date, we had 5,719,665 shares of
common stock outstanding, including 144,900 shares held in treasury, and no
shares of preferred stock outstanding. We have summarized below the key terms
and provisions of the Company's capital stock. The descriptions are not
complete. You should read the actual provisions of our Articles of
Incorporation, as amended ("Articles"), and our bylaws that relate to your
individual investment strategy. We have previously filed our Articles and bylaws
with the SEC.
PREFERRED STOCK
The following description of the terms of the preferred stock sets forth
certain general terms and provisions of the preferred stock we may offer. If we
offer preferred stock, we will describe the specific designations and rights in
the prospectus supplement and we will file a description with the SEC.
Our Articles authorize us to issue up to 5,000,000 shares of preferred
stock, none of which are currently outstanding. Our board of directors can,
without approval of stockholders, issue one or more series of preferred stock.
The board of directors can also determine the number of shares of each series
and the rights, preferences and limitations of each series including the
dividend rights, voting rights, conversion rights, redemption rights and any
liquidation preferences of any wholly unissued series of preferred stock, the
number of shares constituting each series and the terms and conditions of issue.
In some cases, the issuance of preferred stock could delay a change in control
of the Company and make it harder to remove present management. Under certain
circumstances, preferred stock could also restrict dividend payments to holders
of our common stock.
The preferred stock will, when issued, be fully paid and non-assessable.
We will name the transfer agent, registrar, and dividend disbursement agent
for a series of preferred stock in a prospectus supplement. The registrar for
shares of preferred stock will send notices to stockholders of any meetings at
which holders of the preferred stock have the right to elect directors or to
vote on any other matter.
COMMON STOCK
LISTING. Our outstanding shares of common stock are listed on the AMEX
under the symbol "MRS." Any additional common stock we issue will also be
listed on the AMEX.
DIVIDENDS. Common stockholders may receive dividends if the board of
directors declares them out of legally available funds. We may pay dividends in
cash, stock or another form. In certain cases, common stockholders may not
receive dividends until we have satisfied our obligations to any preferred
stockholders.
FULLY PAID. All outstanding shares of common stock are fully paid and
non-assessable. Any additional common stock we issue will also be fully paid and
non-assessable.
VOTING RIGHTS. Each share of common stock is entitled to one vote in the
election of directors and other matters. A majority of the issued and
outstanding common stock constitutes a quorum at any meeting of stockholders,
and the vote by the holders of a majority of the outstanding shares is required
to effect certain fundamental corporate changes such as liquidation, merger or
amendment of the Articles. Common stockholders are not entitled to preemptive or
cumulative voting rights.
OTHER RIGHTS. We will notify common stockholders of any stockholders
meetings according to applicable law. If we liquidate, dissolve or wind-up our
business, either voluntarily or not, common stockholders will share equally in
the assets remaining after we pay our creditors and preferred stockholders.
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TRANSFER AGENT AND REGISTRAR. Our transfer agent and registrar is American
Stock Transfer & Trust Company, New York, New York.
OUTSTANDING WARRANTS
The Company has outstanding Warrants. Warrants to acquire 109,999 shares of
common stock at a price of $12.909 per share commencing in August 1998 were
outstanding at December 31, 1998. These warrants expire in August 2001. We
issued the warrants in our 1996 public offering, and they are registered under
the Securities Act.
In October 1997, we completed our acquisition through merger of Republic
Gas Partners, L.L.C. ("Republic"), which was owned by Cortez Natural Gas, Inc.
("Cortez") and Republic Gas Corporation ("RGC"), two corporations controlled
by two members of our board of directors, and by Riverbend Gas Company
("Riverbend"). As a result of the merger, Cortez, RGC and Riverbend
collectively received, among other consideration, warrants to acquire up to
137,502 shares of common stock at a price of $19.773 per share, commencing in
October 1997. This total number of warrants includes warrants for 110,001 shares
of common stock and an additional 27,501 warrants subject to certain
contingencies. These warrants expire in October 2000. In connection with this
acquisition, the Company granted Cortez, RGC and Riverbend certain demand and
piggyback registration rights regarding the shares of common stock and warrants
purchased.
CERTAIN CORPORATE GOVERNANCE PROVISIONS
LIMITATION ON DIRECTOR LIABILITY. As Private Corporations Section 78.037
of the General Corporation Law of Nevada (the "NGCL") permits, the Articles
eliminate the personal liability of our directors, officers and stockholders for
damages for breach of fiduciary duty, except for (1) acts or omissions that
involve intentional misconduct, fraud of a knowing violation of law, or (2) the
payment of dividends in violation of the NGCL. To the extent that this provision
limits both the remedies of the Company and those of our stockholders to
equitable remedies, it might reduce the likelihood of derivative litigation and
discourage our management or stockholders from initiating litigation against our
directors or officers for breach of their fiduciary duties. Additionally,
equitable remedies may not be effective in many situations. If a stockholder's
only remedy is to enjoin the completion of an action, then the remedy would be
ineffective if the stockholder does not become aware of a transaction or event
until after it has been completed. If this happens, it is possible that the
Company and our stockholders would have no effective remedy against the
directors and officers.
INDEMNIFICATION. To the maximum extent permitted by law, the Articles
provide for mandatory indemnification of our directors and officers against all
expenses, liabilities and losses to which they may become subject or that they
may incur as a result of being or having been a director or officer of the
Company. We may also indemnify any employee or agent of the Company to the
fullest extent permitted by law. In addition, we must advance or reimburse our
directors and officers and may advance or reimburse our employees and agents for
expenses they incur in connection with indemnifiable claims. Under such
provisions, any director or officer, who in his capacity as such, is made or
threatened to be made, a party to any suit or proceeding, may be indemnified if
the board of directors determines such director or officer acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interest of the Company. Our Articles and bylaws and the NGCL, further provide
that such indemnification is not exclusive of any other rights to which such
individuals may be entitled under the Articles, bylaws, any agreement, vote of
stockholders or disinterested directors or otherwise.
We have entered into indemnity agreements with each of our current
directors and executive officers. According to these agreements, we must
indemnify, defend and hold harmless our directors and officers against any loss,
liability or claim arising out of or relating to their capacities as officers
and directors. The Company carries an insurance policy providing directors and
officers with indemnification, subject to certain exclusions and to the extent
not otherwise indemnified by the Company, against loss (including expenses
incurred in the defense of actions, suits or proceedings in
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connection therewith) arising from any negligent act, error, omission or breach
of duty while acting in their capacity as directors and officers of the Company.
The policy also reimburses the Company for liability incurred in the
indemnification of its directors and officer.
NEVADA TAKEOVER STATUTE. We are subject to provisions of the NGCL that
generally restrict business combinations between the Company and its
stockholders who beneficially own 10% or more of the voting power of its
outstanding voting shares. The effect of these provisions is to permit friendly,
negotiated transactions that are approved in advance by the board of directors
while restricting a hostile acquirors flexibility in acquiring the Company. We
qualify the following discussion of these provisions in its entirety by
reference to Nevada Revised Statutes 78.411 through 78.444 (collectively, the
"Takeover Statute"). References to Sections are to sections of the Takeover
Statute.
Combinations the Takeover Statute covers are identified in Section 78.416
and generally include transactions involving our assets or securities. Section
78.438, subject to certain exceptions, prohibits us from engaging in any
combination with any interested stockholder for three years after the interested
stockholders date of acquiring shares unless the combination or the purchase of
shares made by the interested stockholder on such stockholder's date of
acquiring shares is approved by the board of directors before that date.
Section 78.439 also prohibits any combination with an interested
stockholder following the expiration of three years after his date of acquiring
shares unless the combination complies with our Articles and either (i) the
combination or the purchase of shares by the interested stockholder is approved
by the board of directors before the stockholder's date of acquiring shares, or
(ii) at a meeting called for that purpose no earlier than three years after the
interested stockholder's date of acquiring shares, the combination is approved
by the affirmative vote of the holders of stock representing a majority of the
outstanding voting power not beneficially owned by the interested stockholder,
or (iii) the aggregate value of consideration to be received by the holders of
the common stock and by the holders of any other class or series of shares
satisfies certain standards specified in the Takeover Statute, the consideration
to be received by the stockholders is distributed promptly and is in cash or the
same form as the interested stockholder used to acquire the largest number of
shares previously acquired by such stockholder, and except as specified in the
Takeover Statute, the interested stockholder has not become the beneficial owner
of any additional voting shares of the Company after the date of acquiring
shares and before the date of consummation of the combination.
Section 78.423 defines "Interested stockholder" as any person (other than
the Company or any of its subsidiaries) who beneficially owns, directly or
indirectly, 10% or more of the voting power of our outstanding voting shares, or
any affiliate or associate of the Company who, at any time within three years
immediately before the date in question, was the beneficial owner of 10% or more
of the voting power of the Company's then outstanding shares.
DESCRIPTION OF WARRANTS
We may issue warrants, including warrants to purchase debt securities,
preferred stock, common stock or other securities. We may issue warrants
independently or together with other securities that may be attached to or
separate from the warrants. We will issue each series of warrants under a
separate warrant agreement that will be entered into between us and a bank or
trust company, as warrant agent, and will be described in the prospectus
supplement relating to the particular issue of warrants. The warrant agent will
act solely as an agent of the Company in connection with the warrant of such
series and will not assume any obligation or relationship of agency for or with
holders or beneficial owners of warrants. The following describes certain
general terms and provisions of the warrants offered in this prospectus. We will
set forth further terms of the warrants and the applicable warrant agreement in
the applicable prospectus supplement.
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DEBT WARRANTS
The applicable prospectus supplement will describe the terms of any debt
warrants, including the following:
(1) the title of such debt warrants;
(2) the offering price for such debt warrants;
(3) the aggregate number of such debt warrants;
(4) the designation and terms of such debt securities purchasable upon
exercise of such debt warrants;
(5) if applicable, the designation and terms of the securities with which
such debt warrants are issued and the number of such debt warrants
issued with each security;
(6) if applicable, the date from and after which such debt warrants and
any securities issued therewith will be separately transferable;
(7) the principal amount of debt securities purchasable upon exercise of
a debt warrant and the price at which such principal amount of debt
securities may be purchased upon exercise;
(8) the date on which the right to exercise such debt warrants shall
commence and the date on which such right shall expire;
(9) if applicable, the minimum or maximum amount of such debt warrants
which may be exercised at any one time;
(10) Whether the debt warrants represented by the debt warrant
certificates or debt securities that may be issued upon exercise of
the debt warrants will be issued in registered form;
(11) information with respect to book-entry procedures, if any;
(12) the currency, currencies or currency units in which the offering
price, if any, and the exercise price are payable;
(13) if applicable, a discussion of certain United States federal income
tax considerations;
(14) the antidilution provisions of such debt warrants, if any;
(15) the redemption or call provisions, if any, applicable to such debt
warrants; and
(16) any additional terms of the debt warrants, including terms,
procedures and limitations relating to the exchange and exercise of
such debt warrants.
COMMON AND PREFERRED STOCK WARRANTS
The applicable prospectus supplement will describe the terms of any
warrants for common stock or preferred stock the Company issues, including:
(1) the title of such warrants;
(2) the offering price of such warrants;
(3) the aggregate number of such warrants;
(4) the designation and terms of the common stock or preferred stock
issued by the Company purchasable upon exercise of such warrants;
(5) if applicable, the designation and terms of the securities with which
such warrants are issued and the number of such warrants issued with
each such security;
(6) if applicable, the date from and after which such warrants and any
securities issued therewith will be separately transferrable;
(7) the number of shares of common stock or preferred stock issued by the
Company purchasable upon exercise of the warrants and the price at
which such shares may be purchased upon exercise;
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(8) the date on which the right to exercise such warrants shall commence
and the date on which such right shall expire;
(9) if applicable, the minimum or maximum amount of such warrants which
may be exercised at any one time;
(10) the currency, currencies or currency units in which the offering
price, if any, and the exercise price are payable;
(11) if applicable, a discussion of certain United States federal income
tax considerations; and
(12) the antidilution provisions of the warrants, if any.
Warrants for the purchase of preferred stock or common stock will be in
registered form only. Prior to the exercise of any warrants, holders of such
warrants will not have any of the rights of holders of common stock purchasable
upon such exercise, including the right to receive payments of dividends, if
any, on the common stock purchasable upon such exercise, or to exercise any
applicable right to vote.
SELLING SECURITY HOLDERS
This prospectus has also been prepared for use by persons who may be
entitled to offer common stock under circumstances requiring the use of a
prospectus (such persons being referred to as "Selling Security Holders");
provided, however, that no Selling Security Holder will be authorized to use
this prospectus for an offer of such common stock without first obtaining our
consent. We may consent to the use of this prospectus by Selling Security
Holders for a limited period of time and subject to limitations and conditions,
which may be varied by agreement between us and the Selling Security Holders.
Information identifying any such Selling Security Holder and disclosing such
information concerning the Selling Security Holder and the amount of common
stock to be sold as may then be required by the Securities Act and the rules of
the SEC will be set forth in a supplement to this prospectus.
PLAN OF DISTRIBUTION
We may sell the securities in or outside of the United States pursuant to
this prospectus: (1) through underwriters or dealers; (2) directly to a limited
number of purchasers or to a single purchaser; or (3) through agents. A
prospectus supplement with respect to the securities will describe the terms of
specific offerings of the securities, including the name or names of any
underwriters or agents, the purchase price of the securities and the proceeds to
us from such sales, any delayed delivery arrangements, any underwriting
discounts and other items constituting underwriters' compensation, any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be changed from time to
time.
If we use underwriters in the sale, the underwriters will acquire the
securities for their own account and may resell them from time to time in one or
more transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. We may offer the
securities to the public either through underwriting syndicates represented by
one or more managing underwriters or directly by one or more firms acting as
underwriters. The underwriter or underwriters with respect to a particular
underwritten offering of securities will be named in the prospectus supplement
relating to such offering and, if an underwriting syndicate is used, we will set
forth the managing underwriter or underwriters on the cover of such prospectus
supplement. Unless otherwise described in the prospectus supplement relating
thereto, the obligations of the underwriters to purchase the securities in any
such sale will be subject to conditions precedent, and the underwriters will be
obligated to purchase all the securities if any are purchased.
During and after an offering through underwriters, the underwriters may
purchase and sell the securities in the open market. These transactions may
include overallotment and stabilizing transactions
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and purchases to cover syndicate short positions created in connection with the
offering. The underwriters also may impose a penalty bid, under which the
syndicate may reclaim selling concessions allowed to syndicate members or other
broker-dealers for the securities they sell for their account if the syndicate
repurchases the securities in stabilizing or covering transactions. These
activities may stabilize, maintain or otherwise affect the market price of the
securities then offered, which price may be higher than the price that might
otherwise prevail in the open market, and, if commenced, these activities may be
discontinued at any time.
If we use dealers in any of the sales of securities covered by this
prospectus, we will sell those securities to dealers as principals. The dealers
may then resell the securities to the public at varying prices the dealers
determine at the time of resale. The names of the dealers and the terms of the
transaction will be described in a prospectus supplement.
Agreements with Selling Security Holders permitting use of this prospectus
may provide that any such offering be effected in an orderly manner through
securities dealers, acting as broker or dealer, selected by us; that Selling
Security Holders enter into custody agreements with one or more banks with
respect to the securities offered; and that sales be made only by one or more of
the methods described in this prospectus, as appropriately supplemented or
amended when required. The Selling Security Holders may be deemed to be
underwriters within the meaning of the Securities Act.
Upon the Company's being notified by a Selling Security Holder that it
proposes to make a block trade, a prospectus supplement, if required, will be
filed pursuant to Rule 424 under the Securities Act, disclosing the name of the
broker or dealer, the number of shares of common stock involved, the price at
which such shares of common stock are being sold by such Selling Security
Holder, and the commissions to be paid by such Selling Security Holder to such
broker or dealer.
We may sell the securities directly or through agents we designate from
time to time. Any agent involved in the offer or sale of the securities this
prospectus covers will be named, and any commissions payable by us or by the
Selling Security Holders to an agent will be described, in a prospectus
supplement relating thereto. Unless otherwise indicated in a prospectus
supplement, any such agent will be acting on a best efforts basis for the period
of its appointment.
Agents, dealers and underwriters may be entitled under agreements entered
into with us or with the Selling Security Holders to indemnification by us or by
the Selling Security Holders against certain civil liabilities, including
liabilities under the Securities Act, or to contribution with respect to
payments which such agents, dealers or underwriters may be required to make in
respect thereof. Agents, dealers and underwriters may be customers of, engage in
transactions with, or perform services on behalf of us in the ordinary course of
business.
We or the Selling Security Holders may sell the securities directly to
institutional investors or others, who may be deemed to be underwriters within
the meaning of the Securities Act with respect to any sale thereof. The terms of
any such sales will be described in a prospectus supplement.
If so indicated in a prospectus supplement, we will authorize agents,
underwriters or dealers to solicit offers from certain types of institutions to
purchase securities from us at the public offering price set forth in the
prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. These contracts will be
subject only to those conditions we set forth in the prospectus supplement, and
the prospectus supplement will describe the commission payable for solicitation
of such contracts.
Each series of debt securities we offer will be a new issue of securities
and will have no established trading market. The securities may or may not be
listed on a national securities exchange. No assurances can be given that there
will be a market for the securities.
Our outstanding shares of common stock are listed on the AMEX under the
symbol "MRS." Any additional common stock we issue will also be listed on the
AMEX.
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LEGAL MATTERS
Certain legal matters relating to the validity of the debt securities,
preferred stock, common stock and warrants will be passed upon by Porter &
Hedges, L.L.P., Houston, Texas. Any underwriters will be advised about other
issues relating to any offering by their own legal counsel.
EXPERTS
Our consolidated financial statements as of December 31, 1997 and 1996 and
for each of the three years in the period ended December 31, 1997 incorporated
by reference in this registration statement and prospectus, have been audited by
Hein + Associates LLP, certified public accountants, as set forth in their
report, incorporated by reference herein, in reliance upon the authority of said
firm as experts in accounting and auditing.
The combined financial statements of the AlaTenn Subsidiaries as of
December 31, 1996 and 1995 and for the three years in the period ended December
31, 1996, incorporated by reference in this registration statement and
prospectus, have been audited by Hein + Associates LLP, certified public
accountants, as set forth in their report, incorporated by reference herein, in
reliance upon the authority of said firm as experts in accounting and auditing.
The historical summary of revenue and direct operating expenses of the Koch
Hydrocarbons Company -- Harmony Gas Processing Plant for the year ended December
31, 1995, incorporated by reference in this registration statement and
prospectus, have been audited by Hein + Associates LLP, certified public
accountants, as set forth in their report, incorporated by reference herein, in
reliance upon the authority of said firm as experts in accounting and auditing.
The consolidated financial statements of Republic Gas Partners, L.L.C. and
Subsidiaries as of September 30, 1997 and December 31, 1996 and for the
twenty-one month period ended September 30, 1997, incorporated by reference in
this registration statement and prospectus, have been audited by Hein +
Associates, LLP, certified public accountants, as set forth in this report
incorporated by reference herein, in reliance upon the authority of said firm as
experts in accounting and auditing.
The historical summary of revenue and direct operating expenses of the
Anadarko Gas Gathering System of El Paso Field Services Company, a business unit
of El Paso Energy Corporation for the year ended July 31, 1998, incorporated by
reference in this registration statement and prospectus, have been audited by
Hein + Associates LLP, certified public accountants, as set forth in their
report, incorporated by reference herein, in reliance upon the authority of said
firm as experts in accounting and auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses payable by the Company to be incurred in connection
with the issuance and distribution of the securities described in this
registration statement other than underwriting discounts and commissions are as
follows:
Securities and Exchange Commission
Registration Fee..................... $ 55,600
Printing and Engraving Expenses...... *
Accounting Fees and Expenses......... *
Legal Fees and Expenses.............. *
Blue Sky Qualification Fees and
Expenses........................... *
Trustees' Fees and Expenses.......... *
Listing Fees......................... *
Fees of Rating Agencies.............. *
Miscellaneous Fees................... *
---------
Total........................... *
=========
- ------------
* To be filed by amendment.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The NGCL provides that a corporation may indemnify any person who was or is
a party or is threatened to be made a party, by reason of the fact that such
person was an officer or director of such corporation, or is or was serving at
the request of such corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise, to
(i) any action or suit by or in the right of the corporation against expenses,
including amounts paid in settlement and attorneys' fees, actually and
reasonably incurred, in connection with the defense or settlement believed to be
in, or not opposed to, the best interests of the corporation, except that
indemnification may not be made for any claim, issue or matter as to which such
a person has been adjudged by a court of competent jurisdiction to be liable to
the corporation or for amounts paid in settlement to the corporation and (ii)
any other action or suit or proceeding against expenses, including attorneys'
fees, judgments, fines and amounts paid in settlement, actually and reasonably
incurred, if he or she acted in good faith and in a manner which he or she
reasonably believed to be in, or not opposed to, reasonable cause to believe his
or her conduct was unlawful. To the extent that a director, officer, employee or
agent has been "successful on the merits or otherwise" the corporation must
indemnify such person. The articles of incorporation or bylaws may provide that
the expenses of officers and directors incurred in defending any such action
must be paid as incurred and in advance of the final disposition of such action.
The NGCL also permits the registrant to purchase and maintain insurance on
behalf of the registrants directors and officers against any liability arising
out of their status as officers and directors, whether or not the registrant
would have the power to indemnify him against such liability. These provisions
may be sufficiently broad to indemnify such persons for liabilities arising
under the Securities Act.
Our Articles and bylaws provide that we shall, to the fullest extent
allowed by applicable law, indemnify any director or officer of the Company in
connection with certain actions, suits or proceedings, against expenses,
including attorneys' fees, judgments, fines and amounts paid in settlement
actually and reasonably incurred. We are also required to pay any expenses
incurred by our directors or officers in defending such an action, in advance of
the final disposition of such action. Our Articles and bylaws also provide that,
by resolution of the board of directors, such benefits may be extended to
employees, agents or other representatives of the Company. In addition, our
Articles and bylaws provide that all rights to indemnification and advancement
of expenses are deemed to arise
II-1
<PAGE>
out of a contract between the Company and each person to be indemnified which
may be evidenced by a separate contract between the Company and each such
person.
The NGCL provides that a corporation's articles of incorporation may
contain a provision which eliminates or limits the personal liability of a
director or officer to the corporation or its stockholders for damages for
breach of fiduciary duty as a director or officer, provided that such a
provision must not eliminate or limit the liability of a director or officer
for: (a) acts or omissions which involve intentional misconduct, fraud or a
knowing violation of law; or (b) the payment of illegal distributions. Our
Articles include a provision eliminating the personal liability of directors for
breach of fiduciary duty to the extent allowed under applicable law.
Our bylaws provide that we may maintain insurance, at our expense, to
protect the Company and any of our directors, officers, employees or agents or
any person serving at our request as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against any expense, liability or loss, whether or not we would have the power
to indemnify such person against such expense, liability or loss under the NGCL.
We have entered into indemnity agreements with each current director and
executive officer. Under these agreements, we must indemnify its directors and
officers from any loss, liability or claim arising from their capacities as
directors and officers. We carry directors and officers liability insurance that
would indemnify the directors and officers of the Company against damages
arising out of certain kinds of claims that might be made against them based on
their negligent acts or omissions while acting in their capacity as officers and
directors. The policy also reimburses the Company for liability incurred in the
indemnification of its directors and officers.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the SEC such indemnification is against
public policy as expressed in the Securities Act, and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act, and will be governed by the final
adjudication of such issue.
The above discussion of the NGCL and our Articles and bylaws is not
intended to be exhaustive and is qualified in its entirety by the NGCL and our
Articles and bylaws.
II-2
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------------------ ---------------------
<S> <C>
*1.1 -- Form of Underwriting Agreement (Debt).
*1.2 -- Form of Underwriting Agreement (Equity).
4.1 -- Form of Senior Indenture.
4.2 -- Form of Subordinated Indenture.
5.1 -- Opinion of Porter & Hedges, L.L.P.
12.1 -- Statement Regarding Computation of Ratios.
21.1 -- Schedule Listing Subsidiaries of Midcoast Energy Resources, Inc.
23.1 -- Consent of Porter & Hedges, L.L.P. (included in Exhibit 5.1).
23.2 -- Consent of Hein + Associates, L.L.P.
24.1 -- Power of Attorney (included on signature page).
*25.1 -- Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939
for Senior Debt.
*25.2 -- Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939
for Subordinated Debt.
</TABLE>
- ------------
* To be filed by amendment or as an exhibit to a current report on Form 8-K.
(b) Financial Statement Schedules
Schedules are omitted since the information required to be submitted has
been included in the Consolidated Financial Statements of Midcoast Energy
Resources, Inc., or the notes thereto, incorporated by reference herein, or the
required information is not applicable.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(1) To include any prospectus required by section 10(a)(3) of the
Securities Act;
(i) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the SEC pursuant to Rule 424(b), if, in the aggregate, the
changes in volume and price represent no more than a 20% change
in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(ii) To include any material information with respect to the plan of
distribution not previously disclosed in this registration
statement or any material change to such information in this
registration statement; provided, however, that paragraphs
(a)(1)(i) and (a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those paragraphs
is contained in the periodic reports filed with or furnished to
the SEC by the registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in this
registration statement.
(2) That for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
II-3
<PAGE>
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned registrant hereby further undertakes that, for the purposes
of determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange that is incorporated by reference in this registration
statement shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 15 of this
registration statement, or otherwise, the registrant has been advised that
in the opinion of the SEC such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to
be part of this registration statement as of the time it was declared
effective.
(2) For the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(e) The undersigned registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the trustee to act under
subsection (a) of section 310 of the Trust Indenture Act ("Act") in
accordance with the rules and regulations prescribed by the SEC under
section 305(b)(2) of the Act.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas on January 8, 1999.
MIDCOAST ENERGY RESOURCES, INC.
By: /s/ DAN C. TUTCHER
Dan C. Tutcher
PRESIDENT AND CHIEF EXECUTIVE
OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
registration statement on Form S-3 has been signed below by the following
persons in the capacities and on the dates indicated, and each of the
undersigned officers and directors of Midcoast Energy Resources, Inc. hereby
severally constitutes and appoints Dan C. Tutcher and Duane S. Herbst, and each
of them, to sign for him, and in his name in the capacity indicated below, such
Registration Statement on Form S-3 and for the purpose of registering such
securities under the Securities Act of 1933, as amended, and any and all
amendments thereto, including without limitation any registration statements or
post-effective amendment thereof filed under and meeting the requirements of
Rule 462(b) under the Securities Act, hereby ratifying and confirming our
signatures as they may be signed by our attorneys to such registration statement
and any and all amendments thereto.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ ------------------------------------- ----------------
<S> <C>
/s/DAN C. TUTCHER Chairman of the Board of January 8, 1999
(DAN C. TUTCHER) Directors, President and Chief
Executive Officer
/s/I. J. BERTHELOT, II Vice President of Operations January 8, 1999
(I. J. BERTHELOT, II) and Director
/s/RICHARD A. ROBERT Treasurer and Principal Financial January 8, 1999
(RICHARD A. ROBERT) Officer (Principal Accounting
Officer)
/s/RICHARD N. RICHARDS Director January 8, 1999
(RICHARD N. RICHARDS)
/s/BRUCE WITHERS Director January 8, 1999
(BRUCE WITHERS)
/s/TED COLLINS Director January 8, 1999
(TED COLLINS)
</TABLE>
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
co-registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas on January 8, 1999.
MAGNOLIA RESOURCES, INC.
By: /s/ DAN C. TUTCHER
Dan C. Tutcher
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this
registration statement on Form S-3 has been signed below by the following
persons in the capacities and on the dates indicated, and each of the
undersigned officers and directors of Magnolia Resources, Inc. hereby severally
constitutes and appoints Dan C. Tutcher and Duane S. Herbst, and each of them,
to sign for him, and in his name in the capacity indicated below, such
Registration Statement on Form S-3 and for the purpose of registering such
securities under the Securities Act of 1933, as amended, and any and all
amendments thereto, including without limitation any registration statements or
post-effective amendment thereof filed under and meeting the requirements of
Rule 462(b) under the Securities Act, hereby ratifying and confirming our
signatures as they may be signed by our attorneys to such registration statement
and any and all amendments thereto.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ ------------------------------------- ----------------
<S> <C>
/s/DAN C. TUTCHER President and Director January 8, 1999
(DAN C. TUTCHER) (Principal Executive Officer)
/s/I. J. BERTHELOT, II Vice President January 8, 1999
(I. J. BERTHELOT, II) and Director
/s/RICHARD A. ROBERT Treasurer and Chief Financial January 8, 1999
(RICHARD A. ROBERT) Officer (Principal
Accounting Officer)
</TABLE>
II-6
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
co-registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas on January 8, 1999.
MAGNOLIA GATHERING, INC.
By: /S/ DAN C. TUTCHER
Dan C. Tutcher
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this
registration statement on Form S-3 has been signed below by the following
persons in the capacities and on the dates indicated, and each of the
undersigned officers and directors of Magnolia Gathering, Inc. hereby severally
constitutes and appoints Dan C. Tutcher and Duane S. Herbst, and each of them,
to sign for him, and in his name in the capacity indicated below, such
Registration Statement on Form S-3 and for the purpose of registering such
securities under the Securities Act of 1933, as amended, and any and all
amendments thereto, including without limitation any registration statements or
post-effective amendment thereof filed under and meeting the requirements of
Rule 462(b) under the Securities Act, hereby ratifying and confirming our
signatures as they may be signed by our attorneys to such registration statement
and any and all amendments thereto.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ ------------------------------------- ----------------
<S> <C>
/s/DAN C. TUTCHER President and Director January 8, 1999
(DAN C. TUTCHER) (Principal Executive Officer)
/s/I. J. BERTHELOT, II Vice President and Director January 8, 1999
(I. J. BERTHELOT, II)
/s/RICHARD A. ROBERT Treasurer and Chief Financial January 8, 1999
(RICHARD A. ROBERT) Officer (Principal Accounting
Officer)
</TABLE>
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
co-registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas on January 8, 1999.
MIDCOAST INTERSTATE TRANSMISSION, INC.
By: /s/ E.P. MARINOS
E.P. Marinos
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this
registration statement on Form S-3 has been signed below by the following
persons in the capacities and on the dates indicated, and each of the
undersigned officers and directors of Midcoast Interstate Transmission, Inc.
hereby severally constitutes and appoints Dan C. Tutcher and Duane S. Herbst,
and each of them, to sign for him, and in his name in the capacity indicated
below, such Registration Statement on Form S-3 and for the purpose of
registering such securities under the Securities Act of 1933, as amended, and
any and all amendments thereto, including without limitation any registration
statements or post-effective amendment thereof filed under and meeting the
requirements of Rule 462(b) under the Securities Act, hereby ratifying and
confirming our signatures as they may be signed by our attorneys to such
registration statement and any and all amendments thereto.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------ ------------------------------------------ ----------------
<S> <C>
/s/E.P. MARINOS President and Director January 8, 1999
(E.P. MARINOS) (Principal Executive Officer)
/s/RICHARD A. ROBERT Treasurer and Chief Financial January 8, 1999
(RICHARD A. ROBERT) Officer (Principal
Accounting Officer)
/s/DAN C. TUTCHER Chairman of the Board January 8, 1999
(DAN C. TUTCHER) of Directors
/s/I. J. BERTHELOT, II Director January 8, 1999
(I. J. BERTHELOT, II)
/s/BRUCE WITHERS Director January 8, 1999
(BRUCE WITHERS)
/s/RICHARD N. RICHARDS Director January 8, 1999
(RICHARD N. RICHARDS)
</TABLE>
II-8
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
co-registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Houston, State of Texas on January 8, 1999.
TENNESSEE RIVER INTRASTATE GAS
COMPANY, INC.
By: /s/ E.P. MARINOS
E.P. Marinos
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, this
registration statement on Form S-3 has been signed below by the following
persons in the capacities and on the dates indicated, and each of the
undersigned officers and directors of Tennessee River Intrastate Gas Company,
Inc. hereby severally constitutes and appoints Dan C. Tutcher and Duane S.
Herbst, and each of them, to sign for him, and in his name in the capacity
indicated below, such Registration Statement on Form S-3 and for the purpose of
registering such securities under the Securities Act of 1933, as amended, and
any and all amendments thereto, including without limitation any registration
statements or post-effective amendment thereof filed under and meeting the
requirements of Rule 462(b) under the Securities Act, hereby ratifying and
confirming our signatures as they may be signed by our attorneys to such
registration statement and any and all amendments thereto.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------------------------------ ------------------------------------- ----------------
<S> <C>
/s/E.P. MARINOS President and Director January 8, 1999
(E.P. MARINOS) (Principal Executive Officer)
/s/RICHARD A. ROBERT Treasurer and Chief Financial January 8, 1999
(RICHARD A. ROBERT) Officer (Principal
Accounting Officer)
/s/DAN C. TUTCHER Chairman of the Board January 8, 1999
(DAN C. TUTCHER) of Directors
/s/I. J. BERTHELOT, II Director January 8, 1999
(I. J. BERTHELOT, II)
</TABLE>
II-9
<PAGE>
EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ------------------------ ------------------------------------------------------------------------------------------
<S> <C> <C>
*1.1 -- Form of Underwriting Agreement (Debt).
*1.2 -- Form of Underwriting Agreement (Equity).
4.1 -- Form of Senior Indenture.
4.2 -- Form of Subordinated Indenture.
5.1 -- Opinion of Porter & Hedges, L.L.P.
12.1 -- Statement Regarding Computation of Ratios.
21.1 -- Schedule Listing Subsidiaries of Midcoast Energy Resources, Inc.
23.1 -- Consent of Porter & Hedges, L.L.P. (included in Exhibit 5.1).
23.2 -- Consent of Hein + Associates, L.L.P.
24.1 -- Power of Attorney (included on signature page).
*25.1 -- Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939
for Senior Debt.
*25.2 -- Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939
for Subordinated Debt.
</TABLE>
- ------------
* To be filed by amendment or as an exhibit to a current report on Form 8-K.
EXHIBIT 4.1
- ------------------------------------------------------------------------------
MIDCOAST ENERGY RESOURCES, INC.
AND
------------------------------------,
TRUSTEE
-------------------------------
INDENTURE
DATED AS OF
_______________________, 1999
DEBT SECURITIES
(SENIOR DEBT)
- ------------------------------------------------------------------------------
<PAGE>
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
- ----------- ---------
ss.310 (a)(1) ................................................. 609
(a)(2) ................................................. 609
(a)(3) ................................................. Not Applicable
(a)(4) ................................................. Not Applicable
(b) .................................................... 608, 610
ss.311 (a) .................................................... 613
(b) .................................................... 613
(c) .................................................... Not Applicable
ss.312 (a) .................................................... 701, 702(a)
(b) .................................................... 702(b)
(c) .................................................... 702(c)
ss.313 (a) .................................................... 703(a)
(b) .................................................... 703(b)
(c) .................................................... 703(c)
(d) .................................................... 703(d)
ss.314 (a) .................................................... 704, 1005
(b) .................................................... Not Applicable
(c)(1) ................................................. 103
(c)(2) ................................................. 103
(c)(3) ................................................. Not Applicable
(d) .................................................... Not Applicable
(e) .................................................... 103
ss.315 (a) .................................................... 601(a)
(b) .................................................... 602
(c) .................................................... 601(b)
(d) .................................................... 601(c)
(d)(1) ................................................. 601(a)(1)
(d)(2) ................................................. 601(c)(2)
(d)(3) ................................................. 601(c)(3)
(e) .................................................... 513
ss.316 (a)(1)(A) .............................................. 502, 511
(a)(1)(B) .............................................. 512
(a)(2) ................................................. Not Applicable
(a)(last sentence) ..................................... 101
(b) .................................................... 508
ss.317 (a)(1) ................................................. 503
(a)(2) ................................................. 504
(b) .................................................... 1003
ss.318 (a) .................................................... 108
- ---------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
PAGE
RECITALS OF THE COMPANY......................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101 DEFINITIONS....................................................1
Act .................................................................2
Additional Amounts.....................................................2
Affiliate..............................................................2
Agent Members..........................................................2
Authenticating Agent...................................................2
Authorized Newspaper...................................................2
Board of Directors.....................................................2
Board Resolution.......................................................2
Business Day...........................................................3
Commission.............................................................3
Company................................................................3
"Company Request" and "Company Order"..................................3
Conversion Event.......................................................3
Corporate Trust Office.................................................3
Defaulted Interest.....................................................3
Depositary.............................................................3
Dollar.................................................................3
Event of Default.......................................................3
Exchange Rate..........................................................3
Holder.................................................................3
Indenture..............................................................4
Interest...............................................................4
Interest Payment Date..................................................4
Judgment Currency......................................................4
Maturity...............................................................4
"Obligor"..............................................................4
Officers' Certificate..................................................4
Opinion of Counsel.....................................................4
Original Issue Discount Security.......................................4
Outstanding............................................................4
Paying Agent...........................................................5
Person.................................................................5
Place of Payment.......................................................5
Predecessor Security...................................................6
i
<PAGE>
PAGE
Redemption Date........................................................6
Redemption Price.......................................................6
Regular Record Date....................................................6
Required Currency......................................................6
Responsible Officer....................................................6
Securities.............................................................6
Security Custodian.....................................................6
Security Register......................................................6
Special Record Date....................................................6
Stated Maturity........................................................6
Subsidiary.............................................................7
Subsidiary Guarantee
Subsidiary Guarantor
Trustee................................................................7
Trust Indenture Act....................................................7
United States..........................................................7
United States Alien....................................................7
U.S. Government Obligations............................................7
Vice President.........................................................7
Wholly Owned Subsidiary................................................7
Yield to Maturity......................................................8
SECTION 102. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT..............8
SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS...........................8
SECTION 104. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.........................9
SECTION 105. ACTS OF HOLDERS; RECORD DATES..................................9
SECTION 106. NOTICES, ETC., TO TRUSTEE, COMPANY AND SUBSIDIARY GUARANTORS..11
SECTION 107. NOTICE TO HOLDERS; WAIVER.....................................11
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT.............................11
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS......................12
SECTION 110. SUCCESSORS AND ASSIGNS........................................12
SECTION 111. SEPARABILITY CLAUSE...........................................12
SECTION 112. BENEFITS OF INDENTURE.........................................12
SECTION 113. GOVERNING LAW.................................................12
SECTION 114. LEGAL HOLIDAYS................................................12
SECTION 115. CORPORATE OBLIGATION..........................................13
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY...............................................13
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION...............13
ii
<PAGE>
PAGE
SECTION 203. SECURITIES IN GLOBAL FORM.....................................14
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES..........................17
SECTION 302. DENOMINATIONS.................................................19
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING................20
SECTION 304. TEMPORARY SECURITIES..........................................21
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE...........22
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES..............23
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED................23
SECTION 308. PERSONS DEEMED OWNERS.........................................25
SECTION 309. CANCELLATION..................................................25
SECTION 310. COMPUTATION OF INTEREST.......................................25
SECTION 311. CUSIP NUMBERS.................................................25
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.......................26
SECTION 402. APPLICATION OF TRUST MONEY....................................28
SECTION 403. DISCHARGE OF LIABILITY ON SECURITIES OF ANY SERIES............28
SECTION 404. REINSTATEMENT.................................................29
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.............................................29
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT............31
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE......................................................32
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM..............................33
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES OR
COUPONS......................................................34
SECTION 506. APPLICATION OF MONEY COLLECTED................................34
SECTION 507. LIMITATION ON SUITS...........................................35
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL PREMIUM
AND INTEREST.................................................35
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES............................36
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE................................36
SECTION 511. DELAY OR OMISSION NOT WAIVER..................................36
SECTION 512. CONTROL BY HOLDERS............................................36
SECTION 513. WAIVER OF PAST DEFAULTS.......................................37
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PAGE
SECTION 514. UNDERTAKING FOR COSTS.........................................37
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS..............................37
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES...........................38
SECTION 602. NOTICE OF DEFAULTS............................................39
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.....................................39
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES........40
SECTION 605. MAY HOLD SECURITIES...........................................40
SECTION 606. MONEY HELD IN TRUST...........................................40
SECTION 607. COMPENSATION AND REIMBURSEMENT................................41
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.......................41
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.......................42
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.............42
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR........................44
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS...45
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.............45
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT...........................45
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.....47
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS........47
SECTION 703. REPORTS BY TRUSTEE............................................48
SECTION 704. REPORTS BY COMPANY............................................48
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS..........49
SECTION 802. SUCCESSOR PERSON SUBSTITUTED..................................49
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS............50
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS...............51
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES..........................52
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.............................52
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT...........................52
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PAGE
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES............52
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST...................53
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY..............................53
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST............53
SECTION 1004. EXISTENCE....................................................55
SECTION 1005. STATEMENT BY OFFICERS AS TO DEFAULT..........................55
SECTION 1006. WAIVER OF CERTAIN COVENANTS..................................55
SECTION 1007. ADDITIONAL AMOUNTS...........................................55
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.....................................56
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE........................56
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED............57
SECTION 1104. NOTICE OF REDEMPTION.........................................57
SECTION 1105. DEPOSIT OF REDEMPTION PRICE..................................58
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE........................58
SECTION 1107. SECURITIES REDEEMED IN PART..................................58
SECTION 1108. PURCHASE OF SECURITIES.......................................59
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.....................................59
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES........59
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND....................60
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED....................60
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS...........................60
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.........................61
SECTION 1304. QUORUM; ACTION...............................................61
SECTION 1305. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS.................................................62
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS..............62
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INDENTURE, dated as of _______________, 1999 between MIDCOAST ENERGY
RESOURCES, INC., a corporation duly organized and existing under the laws of the
State of Nevada (herein called the "Company"), having its principal office at
100 Louisiana, Suite 2950, Houston, Texas 77002, the Subsidiary Guarantors (as
defined herein) and _____________________, a [national banking association], as
Trustee (herein called the "Trustee"), the office of the Trustee at which at the
date hereof its corporate trust business is principally administered being
- --------------------------.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
This Indenture is subject to the provisions of the Trust Indenture
Act and the rules and regulations of the Commission promulgated thereunder that
are required to be part of this Indenture and, to the extent applicable, shall
be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with respect
to any computation required or permitted hereunder shall mean such
<PAGE>
accounting principles as are generally accepted in the United States at
the date of such computation; and
(3) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in
Section 102.
"Act," when used with respect to any Holder, has the meaning
specified in Section 105.
"Additional Amounts" means any additional amounts that are 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 the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Members" has the meaning specified in Section 203.
"Authenticating Agent" means any Person, which may include the
Company, authorized by the Trustee to act on behalf of the Trustee pursuant to
Section 614 to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
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"Business Day," when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board,
its President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Controller, an Assistant Controller, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Conversion Event" has the meaning specified in Section 501.
"Corporate Trust Office" means the principal office of the Trustee
in Chicago, Illinois at which at any particular time its corporate trust
business shall be principally administered, which office at the date hereof is
that indicated in the introductory paragraph of this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in global form, the Person designated as
Depositary by the Company pursuant to Section 301 with respect to the Securities
of such series until a successor Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder, and if at any
time there is more than one such Person, "Depositary" as used with respect to
the Securities of any series shall mean the Depositary with respect to the
Securities of that series.
"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 debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate" has the meaning specified in Section 501.
"Holder," when used with respect to any Security, means the Person
in whose name the Security is registered in the Security Register.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into
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pursuant to the applicable provisions hereof and shall include the terms of
particular series of Securities established as contemplated by Section 301 and
the provisions of the Trust Indenture Act that are deemed to be a part of and
govern this instrument.
"Interest," when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date," when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Judgment Currency" has the meaning specified in Section 506.
"Maturity," when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
"Obligor," on the Securities of any series means the Company, any
Subsidiary Guarantor with respect to such Securities and any successor obligor
upon the Securities of such series, and all other terms herein which are defined
in the Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, the President or a Vice President, and by the Treasurer, the
Controller, the Secretary or an Assistant Treasurer, Assistant Controller or
Assistant Secretary, of the Company, and delivered to the Trustee, which
certificate shall comply with Section 103 hereof.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company, rendered, if applicable, in
accordance with Section 314(c) of the Trust Indenture Act, which opinion shall
comply with Section 103 hereof.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities of a series,
means, as of the date of determination, all Securities of such series
theretofore authenticated and delivered under this Indenture, EXCEPT:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore irrevocably deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities; PROVIDED that, if
such
4
<PAGE>
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether a
quorum is present at a meeting of Holders of Securities, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes 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 502, (b) the principal amount of a Security
denominated in a foreign currency shall be the U.S. dollar equivalent,
determined by the Company on the date of original issuance of such Security, of
the principal amount (or, in the case of an Original Issue Discount Security,
the U.S. dollar equivalent, determined on the date of original issuance of such
Security, of the amount determined as provided in (a) above), of such Security
and (c) Securities owned by the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person, which may include the Company,
authorized by the Company to pay the principal of (and premium, if any) and
interest on or Additional Amounts with respect to any one or more series of
Securities on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof, or any other entity of any kind.
"Place of Payment," when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on and any Additional Amounts with respect to the Securities of
that series are payable as specified in accordance with Section 301 subject to
the provisions of Section 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in
5
<PAGE>
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall
be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen
Security.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to the terms
of the Security and this Indenture.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to the terms of
the Security and this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301, or, if not so specified, the last day of
the calendar month preceding such Interest Payment Date if such Interest Payment
Date is the fifteenth day of the calendar month or the fifteenth day of the
calendar month preceding such Interest Payment Date if such Interest Payment
Date is the first day of a calendar month, whether or not such day shall be a
Business Day.
"Required Currency" has the meaning specified in Section 506.
"Responsible Officer," when used with respect to the Trustee, means
the chairman or any vice chairman of the board of directors, the chairman or any
vice chairman of the executive committee of the board of directors, the
president, any vice president, the secretary, any assistant secretary, any trust
officer or assistant trust officer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security 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.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on
the Securities of any series means a date fixed by the Trustee pursuant to
Section 307.
"Stated Maturity," when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock"
6
<PAGE>
means stock which ordinarily has voting power for the election of directors,
whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
"Subsidiary Guarantee" means a full and unconditional guarantee by a
Subsidiary Guarantor of the obligations of the Company with respect to the
Securities of a series, which guarantee shall be on the basis, and subject to
the terms and conditions, as may be specified as contemplated by Section 301 in
connection with the issuance of the Securities of such series.
"Subsidiary Guarantor" means each of (i) the Persons so identified
on the signature page of this Indenture or any indenture supplemental hereto
who, pursuant to the terms of any series of Securities, are to provide a
Subsidiary Guarantee with respect to that series of Securities, (ii) any other
Person that executes a Subsidiary Guarantee with respect to a series of
Securities in accordance with the provisions thereof and (iii) their respective
successors and assigns, to the extent specified in the Subsidiary Guarantees.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905.
"United States" means the United States of America (including the
states and the District of Columbia) and its "possessions," which include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"United States Alien" means any Person who, for United States
federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien or foreign fiduciary of an estate or trust, or
a foreign partnership.
"U.S. Government Obligations" has the meaning specified in Section
401.
"Vice President," when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
"Wholly Owned Subsidiary" means a corporation all the outstanding
voting stock (other than any directors' qualifying shares) of which is owned,
directly or indirectly, by the Company or by one or more other Wholly Owned
Subsidiaries, or by the Company and one or more other Wholly Owned Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
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"Yield to Maturity," when used with respect to any Original Issue
Discount Security, means the yield to maturity, if any, set forth on the face
thereof.
SECTION 102. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this
Indenture. The following Trust Indenture Act terms used in this Indenture have
the following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United
States Code.
"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 Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or
defined by Commission rule under the Trust Indenture Act and not otherwise
defined herein have the meanings assigned to them therein.
SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any (including
any covenants the compliance with which constitutes a condition precedent)
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any (including any covenants the
compliance with which constitutes a condition precedent) have been complied
with, except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each Person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
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(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such Person,
such condition or covenant has been complied with.
SECTION 104. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 105. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent duly appointed in writing.
Except as herein otherwise expressly provided, such action shall become
effective when such instrument or instruments or record thereof or both are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments and so voting at any
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent,
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or the holding of any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1306.
The Company may set in advance a record date for purposes of
determining the identity of Holders of Securities entitled to vote or consent to
any action by vote or consent authorized or permitted under this Indenture. If a
record date is fixed, those Persons who were Holders of Outstanding Securities
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled with respect to such Securities to take such action by vote or
consent or to revoke any vote or consent previously given, whether or not such
Persons continue to be Holders after such record date. Promptly after any record
date is set pursuant to this paragraph, the Company, at its own expense, shall
cause notice thereof to be given to the Trustee in writing in the manner
provided in Section 106 and to the relevant Holders as set forth in Section 107.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities held by any
Person, and the date of holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security. Any Holder or subsequent Holder may revoke the request, demand,
authorization, direction, notice, consent or other Act as to his Security or
portion of his Security; PROVIDED, HOWEVER, that such revocation shall be
effective only if the Trustee receives the notice of revocation before the date
the Act becomes effective.
SECTION 106. NOTICES, ETC., TO TRUSTEE, COMPANY AND SUBSIDIARY GUARANTORS.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or by any Subsidiary
Guarantor shall be sufficient for every purpose hereunder if made, given,
furnished or filed in
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writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration, or
(2) the Company or any Subsidiary Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this Indenture or at any other
address previously furnished in writing to the Trustee by the Company,
Attention: Corporate Secretary.
SECTION 107. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of Securities of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder as it appears
in the Security Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service, or by
reason of any other cause it shall be impracticable to give such notice to
Holders of Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case in which notice to Holders of Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Security, shall affect the sufficiency
of such notice with respect to other Holders of Securities.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision of the Trust Indenture Act shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the former provision shall
be deemed to apply to this Indenture as so modified or to be excluded.
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
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SECTION 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company or any
Subsidiary Guarantor shall bind its successors and assigns, whether so expressed
or not.
SECTION 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, any Authenticating Agent, Paying Agent and Security Registrar, and
the Holders, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 113. GOVERNING LAW.
This Indenture, any Subsidiary Guarantees and the Securities shall
be governed by and construed in accordance with the laws of the State of New
York, but without giving effect to applicable principles of conflicts of law to
the extent the application of the laws of another jurisdiction would be required
thereby.
SECTION 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of principal and interest (and premium and Additional
Amounts, if any) need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, PROVIDED that no interest shall accrue with
respect to such payment for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 115. CORPORATE OBLIGATION.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, stockholder, officer, director or
employee of the Company or the Trustee or of any predecessor or successor of the
Company or the Trustee with respect to the Company's obligations on the
Securities or the obligations of the Company or the Trustee under this Indenture
or any certificate or other writing delivered in connection herewith.
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ARTICLE TWO
SECURITY FORMS
SECTION 201. 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) as shall be established by or pursuant to a Board Resolution or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of the Securities. If temporary Securities of
any series are issued in global form as permitted by Section 304, the form
thereof shall be established as provided in the preceding sentence. A copy of
the Board Resolution establishing the form or forms of Securities of any series
(or any such temporary global Security) shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities (or any such temporary global
Security).
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
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 203. SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in global form, as
contemplated by Section 301, then, notwithstanding clause (10) of Section 301
and the provisions of Section 302, any such 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. Any endorsement of a Security in global form 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
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Person or Persons as shall be specified in such Security or in a Company Order
to be delivered to the Trustee pursuant to Section 303 or Section 304. Subject
to the provisions of Section 303 and, if applicable, Section 304, 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 Security in global form, the Company authorizes the
execution and delivery by the Trustee of a letter of representation or other
similar agreement or instrument in the form customarily provided for by the
Depositary appointed with respect to such global Security. Any Security in
global form 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 pursuant to Section 303 or 304 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 103 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 Security issued in
global form 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
Security of any series issued in global form 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 305, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the beneficial owners of interests in a
permanent global Security are entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301, then without
unnecessary delay but in any event not later than the earliest date on which
such interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities of that series in an aggregate principal amount equal to
the principal amount of such permanent global Security, executed by the Company.
On or after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered from time to time in accordance
with instructions given to the Trustee and the Depositary (which instructions
shall be in writing but need not comply with Section 103 or be accompanied by an
Opinion of Counsel) by the Depositary or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or in part, for
definitive Securities of the same series without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such permanent global
Security, a like aggregate principal amount of other definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such permanent global Security to
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be exchanged; PROVIDED, HOWEVER, that no such exchanges may occur during a
period beginning at the opening of business 15 days before any selection of
Securities of that series is to be redeemed and ending on the relevant
Redemption Date. Promptly following any such exchange in part, such permanent
global Security marked to evidence the partial exchange shall be returned by the
Trustee to the Depositary or such other depositary referred to above in
accordance with the instructions of the Company referred to above. If a
definitive Security is issued in exchange for any portion of a permanent global
Security after the close of business at the office or agency where such exchange
occurs on (i) any Regular Record Date and before the opening of business at such
office or agency on the relevant Interest Payment Date, or (ii) any Special
Record Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, interest or Defaulted
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such Security,
but will be payable on such Interest Payment Date or proposed for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the provisions
of this Indenture.
Notwithstanding Section 305, except as otherwise specified as
contemplated by Section 301, transfers of a Security issued in global form 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 Security issued in global form 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 Security Registrar has received a request from the
Depositary or the Trustee 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 203, the Security 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 203,
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.
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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).
The provisions of the last sentence of Section 303 shall apply to
any Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 103 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of (and
premium, if any) and interest on and any Additional Amounts with respect to any
Security in permanent global form shall be made to the Person or Persons
specified therein.
Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company or of the Trustee shall treat a Person as the Holder of such principal
amount of Outstanding Securities represented by a global Security as shall be
specified in a written statement, if any, of the Holder of such global Security,
which is produced to the Security Registrar by such Holder.
Global Securities may be issued in either temporary or permanent
form. Permanent global Securities will be issued in definitive form.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
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(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107);
(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, 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
203, and the Depositary for any global Security or Securities of such
series;
(4) the manner in which any interest payable on a temporary global
Security on any Interest Payment Date will be paid if other than in the
manner provided in Section 304;
(5) the date or dates on which the principal of (and premium, if
any, on) the Securities of the series is payable or the method of
determination thereof;
(6) the rate or rates, or the method of determination thereof, at
which the Securities of the series shall bear interest, if any, whether
and under what circumstances Additional Amounts with respect to such
Securities shall be payable, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall be
payable and, if other than as set forth in Section 101, the Regular 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
1002, the principal of (and premium, if any), any interest on and any
Additional Amounts with respect to the Securities of the series shall be
payable;
(8) the period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms and
conditions upon which Securities of the series may be redeemed, in whole
or in part, at the option of the Company, if the Company is to have that
option, and the manner in which the Company must exercise any such option
if different from those set forth herein;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices (whether denominated in cash, securities
or otherwise) at which and the terms and conditions upon which Securities
of the series shall be redeemed or purchased in whole or in part pursuant
to such obligation;
(10) the denomination in which any Securities of that series shall
be issuable, if other than denominations of $1,000 and any integral
multiple thereof;
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(11) the currency or currencies (including composite currencies) if
other than Dollars, or the form, including equity securities, other debt
securities (including Securities), warrants or any other securities or
property of the Company or any other Person, in which payment of the
principal of (and premium, if any), and interest on and any Additional
Amounts with respect to the Securities of the series shall be payable;
(12) if the principal of (and premium, if any) or interest on or any
Additional Amounts with Respect to the Securities of the series are to be
payable, at the election of the Company or a Holder thereof, in a currency
or currencies (including composite currencies) other than that in which
the Securities are stated to be payable, the currency or currencies
(including composite currencies) in which payment of the principal of (and
premium, if any) and interest on, and any Additional Amounts with respect
to, Securities of such series as to which such election is made shall be
payable, and the periods within which and the terms and conditions upon
which such election is to be made;
(13) if the amount of payments of principal of (and premium, if
any), any interest on and any Additional Amounts with respect to the
Securities of the series may be determined with reference to any
commodities, currencies or indices, values, rates or prices or any other
index or formula, the manner in which such amounts shall be determined;
(14) if other than the entire principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(15) any additional means of satisfaction and discharge of this
Indenture with respect to Securities of the series pursuant to Section
401, any additional conditions to discharge pursuant to Section 401 or 403
and the application, if any, of Section 403;
(16) any deletions or modifications of or additions to the
definitions set forth in Section 101, the Events of Default set forth in
Section 501 or covenants of the Company set forth in Article Ten
pertaining to the Securities of the series;
(17) if the Securities of the series are to be convertible into or
exchangeable for equity securities, other debt securities (including
Securities), warrants 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) whether the Securities of the initial series shall be issued
upon a senior subordinated basis and, if so, the subordination provisions
applicable to such series (and any related Subsidiary Guarantees) and to
any other series that may be issued thereafter;
(19) whether the Securities of the series shall be guaranteed by one
or more Subsidiary Guarantors and, if so, the terms of the Subsidiary
Guarantees, including the circumstances in which such Subsidiary
Guarantees may be released; and
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(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto.
At the option of the Company, interest on the Securities of any
series that bears interest may be paid by mailing a check to the address of any
Holder as such address shall appear in the Security Register.
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 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 setting forth the terms of the series.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301. 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 multiple thereof. Unless otherwise
provided as contemplated by Section 301 with respect to any series of
Securities, any Securities of a series denominated in a currency other than
Dollars shall be issuable in denominations that are the equivalent, as
determined by the Company by reference to the noon buying rate in The City of
New York for cable transfers for such currency, as such rate is reported or
otherwise made available by the Federal Reserve Bank of New York, on the
applicable issue date for such Securities, of $1,000 and any integral multiple
thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, its Treasurer or one of its Vice
Presidents, under its corporate seal reproduced thereon or affixed thereto
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities,
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and the Trustee in accordance with the Company Order shall authenticate and
deliver such Securities as in this Indenture provided and not otherwise.
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 Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Company, enforceable in accordance
with their terms, except as such enforcement is subject to the effect of
(i) bankruptcy, insolvency, fraudulent conveyance, reorganization or other
laws relating to or affecting creditors' rights and (ii) general
principles of equity (regardless of whether such enforcement is considered
in a proceeding in equity or at law).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security, a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309 together
with a written statement (which need not comply with Section 103 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
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SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form and with such appropriate insertions, omissions,
substitutions and other variations as the officers of the Company executing such
Securities may determine, as evidenced by their execution of such Securities.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
All Outstanding temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept for each series of Securities at
one of the offices or agencies maintained pursuant to Section 1002 a register
(the register maintained in such office and in any other office or agency of the
Company in a Place of Payment being herein sometimes collectively referred to as
the "Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities of such series. The Trustee is hereby initially
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Except as set forth in Section 203 or as may be provided pursuant to
Section 301, upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series and of like tenor, of any authorized denominations and of a like
aggregate principal amount.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series and of like tenor, of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
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the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than exchange
pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of such series selected for redemption and ending at
the close of business on the day of the mailing of the relevant notice of
redemption or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fee and expenses of the Trustee) connected therewith.
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Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest. Unless
otherwise provided with respect to the Securities of any series, payment of
interest may be made at the option of the Company by check mailed or delivered
to the address of any Person entitled thereto as such address shall appear in
the Security Register.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least once in an
Authorized Newspaper, but such publication shall not be a condition
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precedent to the establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture, upon registration of transfer of, in exchange
for or in lieu of, any other Security, shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Sections 305 and 307) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered shall be promptly cancelled by the Trustee. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. All cancelled Securities held
by the Trustee shall be disposed of as directed by a Company Order; PROVIDED
that the Trustee shall not be required to destroy such Securities.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30-day months.
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SECTION 311. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; PROVIDED that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect with respect to Securities of a series, and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to Securities of such series, when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 306, and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust
by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) with respect to all Outstanding Securities of such series
not theretofore delivered to the Trustee for cancellation, the
Company has deposited or caused to be deposited with the Trustee as
trust funds, under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee, money or U.S.
Government Obligations maturing as to principal and interest in such
amounts and at such times as will (together with the income to
accrue thereon and without consideration of any reinvestment
thereof) be sufficient to pay and discharge (with such delivery in
trust to be for the stated purpose of paying and discharging) the
entire indebtedness on all Outstanding Securities of such series not
theretofore delivered to the Trustee for cancellation for principal
(and premium and Additional Amounts, if any) and interest to the
Stated Maturity or any Redemption Date contemplated by the
penultimate paragraph of this Section, 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 301, to be applicable to the Securities of such series;
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(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Outstanding Securities of
such series;
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities of
such series pursuant to this Section 401;
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture with respect to the Outstanding Securities of such
series have been complied with;
(5) if the conditions set forth in Section 401(1)(A) have not been
satisfied, and unless otherwise specified pursuant to Section 301 for the
Securities of such series, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of Securities of such
series will not recognize income, gain or loss for United States federal
income tax purposes as a result of such deposit, satisfaction and
discharge and will be subject to United States federal income tax on the
same amount and in the same manner and at the same time as would have been
the case if such deposit, satisfaction and discharge had not occurred; and
(6) no Default or Event of Default with respect to the Securities of
such issue shall have occurred and be continuing on the date of such
deposit or, insofar as clauses (5) or (6) of Section 501 are concerned, at
any time in the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
For the purposes of this Indenture, "U.S. Government Obligations"
means direct non-callable obligations of, or non-callable obligations the
payment of principal of and interest on which is guaranteed by, the United
States of America, or to the payment of which obligations or guarantees the full
faith and credit of the United States of America is pledged, or beneficial
interests in a trust the corpus of which consists exclusively of money or such
obligations or a combination thereof.
If any Outstanding Securities of such series are to be redeemed
prior to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory sinking fund requirement, the
trust agreement referred to in subclause (B) of clause (1) of this Section shall
provide therefor and the Company shall make such arrangements as are
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to the Outstanding Securities of such series pursuant to this
Section 401, the obligations of the Company to the Trustee under Section 607,
the obligations to any Authenticating Agent under Section 614 and, except for a
discharge pursuant to subclause (A) of clause (1) of this Section, the
obligations of the Company under Sections 305, 306, 404, 610(e), 701, 1001 and
1002 and the obligations of the Trustee under Section 402 and the last paragraph
of Section 1003 shall survive.
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SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest and Additional Amounts for the payment of which such money has
been deposited with the Trustee.
SECTION 403. DISCHARGE OF LIABILITY ON SECURITIES OF ANY SERIES.
If this Section is specified, as contemplated by Section 301, to be
applicable to Securities of any series, the Company shall be deemed to have paid
and discharged the entire indebtedness on all the Outstanding Securities of such
series, the obligation of the Company under this Indenture and the Securities of
such series to pay the principal of (and premium, if any) and interest on and
any Additional Amounts with respect to Securities of such series, shall cease,
terminate and be completely discharged and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging such satisfaction and
discharge, when
(1) the Company has complied with the provisions of Section 401
(other than any additional conditions specified pursuant to Sections 301
and 401(3) and except that the Opinion of Counsel referred to in Section
401(5) shall state that it is based on a ruling by the Internal Revenue
Service or other change since the date hereof under applicable Federal
income tax law) with respect to all Outstanding Securities of such series,
(2) the Company has delivered to the Trustee a Company Request
requesting such satisfaction and discharge,
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities of
such series pursuant to this Section 403, and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the discharge of the
indebtedness on the Outstanding Securities of such series have been
complied with.
Upon the satisfaction of the conditions set forth in this Section
with respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; PROVIDED that, the Company shall not be discharged
from any payment obligations in respect of Securities of such series which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law or pursuant to Section 305 or 306.
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SECTION 404. REINSTATEMENT
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations deposited with respect to Securities of any series in
accordance with Section 401 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 Company's obligations
under this Indenture with respect to the Securities of such series and the
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to Section 401 until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 401; PROVIDED, HOWEVER, that if the Company has made any
payment of principal of (or 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 U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body), unless it is either inapplicable to a particular series or it is
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:
(1) default in the payment of any interest on or any Additional
Amounts with respect to any Security of that series when such interest or
Additional Amounts become due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any mandatory sinking fund payment,
when and as due by the terms of a Security of that series and continuance
of such default for a period of 30 days; or
(4) default in the performance or breach of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of one or more series of Securities other
than that series), and continuance of such default or breach for a period
of 90 days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of all Outstanding Securities
a written notice specifying such default or breach and
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requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect
for a period of 90 consecutive days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it, of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial part
of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities
of that series.
Notwithstanding the foregoing provisions of this Section 501, if the
principal of (and premium, if any) or any interest on, or Additional Amounts
with respect to, any Security is payable in a currency or currencies (including
a composite currency) other than Dollars and such currency (or currencies) is
(or are) not available to the Company for making payment thereof due to the
imposition of exchange controls or other circumstances beyond the control of the
Company (a "Conversion Event"), the Company will be entitled to satisfy its
obligations to Holders of the Securities by making such payment in Dollars in an
amount equal to the Dollar equivalent of the amount payable in such other
currency, as determined by the Company by reference to the noon buying rate in
The City of New York for cable transfers for such currency ("Exchange Rate"), as
such Exchange Rate is certified for customs purposes by the Federal Reserve Bank
of New York on the date of such payment, or, if such rate is not then available,
on the basis of the most recently available Exchange Rate. Notwithstanding the
foregoing provisions of this Section 501, any payment made under such
circumstances in Dollars where the required payment is in a currency other than
Dollars will not constitute an Event of Default under this Indenture.
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Promptly after the occurrence of a Conversion Event with respect to
Securities of any series, the Company shall give written notice thereof to the
Trustee; and the Trustee, promptly after receipt of such notice, shall give
notice thereof in the manner provided in Section 107 to the Holders of such
series. Promptly after the making of any payment in Dollars as a result of a
Conversion Event with respect to Securities of any series, the Company shall
give notice in the manner provided in Section 107 to the Holders of such series,
setting forth the applicable Exchange Rate and describing the calculation of
such payments.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to any Securities of any series
at the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of (i) the series affected by such default (in the case
of an Event of Default described in clause (1), (2), (3) or (7) of Section 501)
or (ii) all series of Securities (subject to the immediately following sentence,
in the case of an Event of Default described in clause (4) of Section 501) may
declare the principal amount (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) of all of the Securities of the series affected by
such default or all series, as the case may be, to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default
described in clause (5) or (6) of Section 501 shall occur, the principal amount
of the Outstanding Securities of all series IPSO FACTO shall become and be
immediately due and payable without any declaration 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 (or of all series, as the case may be) 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 Outstanding Securities of that series (or of
all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on, and any Additional Amounts with
respect to, all Securities of that series (or of all series, as the
case may be),
(B) the principal of (and premium, if any, on) any Securities
of that series (or of all series, as the case may be) which have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Securities (in the case of Original Issue Discount Securities, the
Securities' Yield to Maturity),
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest and any Additional Amounts at the
rate or rates prescribed therefor
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in such Securities (in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity), and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series
(or of all series, as the case may be), other than the non-payment of the
principal of Securities of that series (or of all series, as the case may
be) which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 512.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of interest
on, or any Additional Amounts with respect to, any Security of any series
when such interest or Additional Amounts shall have become due and payable
and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and Additional
Amounts and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on any
overdue interest and Additional Amounts, at the rate or rates prescribed
therefor in such Securities (or in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity), and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
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If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal (or lesser amount
in the case of Original Issue Discount Securities) of the Securities shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal (and premium, if any), interest or any
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (or
lesser amount in the case of Original Issue Discount Securities) (and
premium, if any) and interest and any Additional Amounts owing and unpaid
in respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, 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 it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any 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 proceedings; PROVIDED, HOWEVER,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official.
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SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES OR
COUPONS.
All rights of action and claim under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without possession of
any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any), interest or any Additional Amounts, upon presentation of the
Securities, and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on and any Additional
Amounts with respect to the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities for principal (and premium, if any), interest
and Additional Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
To the fullest extent allowed under applicable law, if for the
purpose of obtaining judgment against the Company in any court it is necessary
to convert the sum due in respect of the principal of (or premium, if any) or
interest on or any Additional Amounts with respect to the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
New York Business Day next preceding that on which final judgment is given.
Neither the Company nor the Trustee shall be liable for any shortfall nor shall
it benefit from any windfall in payments to Holders of Securities under this
Section caused by a change in exchange rates between the time the amount of a
judgment against it is calculated as above and the time the Trustee converts the
Judgment Currency into the Required Currency to make payments under this Section
to Holders of Securities, but payment of such judgment shall discharge all
amounts owed by the Company on the claim or claims underlying such judgment.
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SECTION 507. LIMITATION ON SUITS.
Subject to Section 508, no Holder of any Security of any series
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) an Event of Default with respect to Securities of such series
shall have occurred and be continuing and such Holder has previously given
written notice to the Trustee of such continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on and any Additional Amounts with respect to such
Security on the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired or
affected without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of any Security has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, then and in every
such case the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
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SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 512. CONTROL BY HOLDERS.
With respect to Securities of any series, the Holders of a majority
in principal amount of the Outstanding Securities of such series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, relating to or arising under an Event of Default described in
clause (1), (2), (3) or (7) of Section 501, and with respect to all Securities
the Holders of a majority in principal amount of all Outstanding Securities
shall have the right to direct the time, method and place of conducting any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, not relating to or arising under such an Event of Default, PROVIDED
that in each such case
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder with respect to such series and its
consequences, and the Holders of a majority in principal amount of all
Outstanding Securities may on behalf of the Holders of all Securities waive any
other past default hereunder and its consequences, except in each case a default
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(1) in the payment of the principal of (or premium, if any) or
interest on, or any Additional Amounts with respect to, any Security, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on, or any Additional Amounts with respect to, any Security
on or after the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with
respect to the Securities of any series,
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(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, 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; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing with
respect to the Securities of any series, the Trustee shall exercise such
of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, EXCEPT that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of
the Outstanding Securities of any series or of all series,
determined as provided in Section 511, relating to the time, method
and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities of such
series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
indemnity satisfactory to it against such risk or liability is not
assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
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SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall give notice of such
default hereunder known to the Trustee to all Holders of Securities of such
series in the manner provided in Section 107, unless such default shall have
been cured or waived; PROVIDED, HOWEVER, that, except in the case of a default
in the payment of the principal of (or premium, if any) or interest on, or any
Additional Amounts with respect to, any Security of such series or in the
payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders of Securities
of such series; AND PROVIDED, FURTHER, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event, act or condition which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
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(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and, except for any Affiliates of the Trustee, the Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time compensation for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the compensation and
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the reasonable expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee and each of its directors, officers,
employees, agents and/or representatives for, and to hold each of them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on each of their part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending themselves
against any claim or liability in connection with the exercise or
performance of any of the Trustee's powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of, premium, if any, or interest, if
any, on, or any Additional Amounts with respect to, particular Securities.
Any expenses and compensation for any services rendered by the
Trustee after the occurrence of an Event of Default specified in clause (5) or
(6) of Section 501 shall constitute expenses and compensation for services of
administration under all applicable federal or state bankruptcy, insolvency,
reorganization or other similar laws.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting
interest, either eliminate such conflicting interest or resign with
respect to the Securities of that series in the manner and with the effect
hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the
Securities of any series, the Trustee shall, within 10 days after the
expiration of such 90-day period, transmit by mail to all Holders of
Securities of that series, as their names and addresses appear in the
Security Register, notice of such failure.
(c) For the purposes of this Section, the term "conflicting
interest" shall have the meaning specified in Section 310(b) of the Trust
Indenture Act and the Trustee shall comply with Section 310(b) of the
Trust Indenture Act; PROVIDED that there shall be excluded from the
operation of Section 310(b)(1) of the Trust Indenture Act with respect to
the Securities of any series any indenture or indentures under which other
securities, or certificates of interest or participation in other
securities, of the Company are outstanding, if the requirements for such
exclusion set forth in Section 310(b)(1) of the Trust Indenture Act are
met. For purposes of the preceding sentence, the optional provision
permitted by the second sentence of Section 310(b)(9) of the Trust
Indenture Act shall be applicable.
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SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal or
State or District of Columbia authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
The Indenture shall always have a Trustee who satisfies the
requirements of Sections 310(a)(1), 310(a)(2) and 310(a)(5) of the Trust
Indenture Act.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with
the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required
by Section 611 shall not have been delivered to the resigning Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) after
written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the
Company or by any such Holder of Securities, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed
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or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove
the Trustee with respect to all Securities, or (ii) subject to Section
513, any Holder who has been a bona fide Holder of a Security for at least
six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the Securities of any
particular series) and such successor Trustee or Trustees shall comply
with the applicable requirements of Section 611. If no successor Trustee
with respect to the Securities of any series shall have been so appointed
by the Company and accepted appointment in the manner required by Section
611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of
any series by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of Securities of such series as their
names and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each
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successor Trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor Trustee
relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as
to which the retiring Trustee is not retiring shall continue to be vested
in the retiring Trustee and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust and
that each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by any
other such Trustee; and upon the execution and delivery of such
supplemental indenture, the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates; but, on request
of the Company or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
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SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be subject
to Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents which
shall be authorized to act on behalf of the Trustee to authenticate Securities
issued upon original issue and upon exchange, registration of transfer or
partial redemption or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia having a
combined capital and surplus of not less than $50,000,000 or equivalent amount
expressed in a foreign currency and subject to supervision or examination by
Federal or State or District of Columbia authority or authority of such country.
If such Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If
at any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
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Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the Securities
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
"This is one of the Securities of the series designated therein
referred to in the within- mentioned Indenture.
[NAME OF TRUSTEE],
AS TRUSTEE
By ,
AS AUTHENTICATING AGENT
By
AUTHORIZED SIGNATORY."
Notwithstanding any provision of this Section 614 to the contrary,
if at any time any Authenticating Agent appointed hereunder with respect to any
series of Securities shall not also be acting as the Security Registrar
hereunder with respect to any series of Securities, then, in addition to all
other duties of an Authenticating Agent hereunder, such Authenticating Agent
shall also be obligated: (i) to furnish to the Security Registrar promptly all
information necessary to enable the Security Registrar to maintain at all times
an accurate and current Security Register; and (ii) prior to authenticating any
Security denominated in a foreign currency, to ascertain from the Company the
units of such foreign currency that are required to be determined by the Company
pursuant to Section 302.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
With respect to each series of Securities, the Company will furnish
or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular Record
Date relating to that series (or, if there is no Regular Record Date
relating to that series, on January 1 and July 1), a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of that series as of such dates, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content, such list to be dated as of a date not
more than 15 days prior to the time such list is furnished;
PROVIDED, that so long as the Trustee is the Security Registrar, the Company
shall not be required to furnish or cause to be furnished such a list to the
Trustee. The Company shall otherwise comply with Section 310(a) of the Trust
Indenture Act.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each series
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of each series received
by the Trustee in its capacity as Security Registrar, if applicable. The
Trustee may destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished. The Trustee shall otherwise
comply with Section 310(a) of the Trust Indenture Act.
(b) Holders of Securities may communicate pursuant to Section 312(b)
of the Trust Indenture Act with other Holders with respect to their rights
under this Indenture or under the Securities.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company, each Subsidiary Guarantor and the Trustee that
neither the Company, any Subsidiary Guarantor nor the Trustee nor any
agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made
under Section 702(b). The Company, the Trustee, the Security Registrar and
any other Person shall have the protection of Section 312(c) of the Trust
Indenture Act.
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SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year after the execution of
this Indenture, the Trustee shall transmit by mail to Holders a brief
report dated as of such May 15 that complies with Section 313(a) of the
Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) of the Trust
Indenture Act.
(c) Reports pursuant to this Section shall be transmitted by mail as
required by Sections 313(c) and 313(d) of the Trust Indenture Act:
(1) to all Holders of Securities, as the names and addresses
of such Holders appear in the Security Register;
(2) to such Holders of Securities as have, within the two
years preceding such transmissions, filed their names and addresses
with the Trustee for that purpose; and
(3) except in the case of reports pursuant to Subsection (b)
of this Section, to each Holder of a Security whose name and address
is preserved at the time by the Trustee, as provided in Section
702(a).
(d) A copy of each report pursuant to Subsection (a) or (b) of this
Section 703 shall, at the time of its transmission to Holders, be filed by
the Trustee with each stock exchange upon which any Securities are listed,
with the Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, and shall otherwise comply with Section 314(a)
of the Trust Indenture Act.
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ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation, partnership or trust and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on
and any Additional Amounts with respect to all the Securities and the
performance of every covenant of this Indenture on the part of the Company
to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event, act or condition which, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
SECTION 802. SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company
into any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in the case of such
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
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(2) 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), to convey, transfer, assign, mortgage or pledge any property to
or with the Trustee or otherwise secure any series of the Securities or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to all or
any series of the Securities (and, if such Event of Default is applicable
to less than all series of Securities, specifying the series to which such
Event of Default is applicable); or
(4) to change or eliminate any of the provisions of this Indenture,
PROVIDED that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is adversely affected by
such change in or elimination of such provision; or
(5) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(6) 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 401; 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
(7) 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 611(b); or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, PROVIDED such other provisions as
may be made shall not adversely affect the interests of the Holders of
Securities of any series in any material respect; or
(9) to secure the securities or any Subsidiary Guarantee pursuant to
the terms thereof; or
(10) to release a Subsidiary Guarantor from its obligations under
this Indenture and its Subsidiary Guarantee in accordance with the
provisions hereof and thereof.
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SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in principal amount of
the Outstanding Securities of all series affected by such supplemental indenture
(acting as one class), by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; PROVIDED, HOWEVER,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon, any Additional
Amounts with respect thereto or any premium payable upon the redemption
thereof, or change any obligation of the Company to pay Additional Amounts
(except as contemplated by Section 801(1) and permitted by Section
901(1)), 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 502, or change
any Place of Payment where, or the coin or currency or currencies
(including composite currencies) in which, any Security or any premium or
any interest thereon or Additional Amounts with respect thereto is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 512 or
Section 1006, except to increase any such percentage or to provide with
respect to any particular series the right to condition the effectiveness
of any supplemental indenture as to that series on the consent of the
Holders of a specified percentage of the aggregate principal amount of
Outstanding Securities of such series (which provision may be made
pursuant to Section 301 without the consent of any Holder) or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, PROVIDED, HOWEVER, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1006, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any), interest on and any Additional Amounts with respect to the Securities
of that series in accordance with the terms of the Securities and this
Indenture.
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SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; 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 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on or any Additional Amounts with
respect to any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest or any Additional Amounts so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, the Company will, on or before each due date of the
principal of (and premium, if any) or interest on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay the principal (and premium,
if any) or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any), interest on or any Additional Amounts with respect
to Securities of that series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
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(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any), interest on or any Additional
Amounts with respect to the Securities of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and premium,
if any) or interest on or any Additional Amounts with respect to any Security of
any series and remaining unclaimed for three years after such principal (and
premium, if any) or interest or Additional Amounts have become due and payable
shall, unless otherwise required by mandatory provisions of applicable escheat,
or abandoned or unclaimed property law, be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper in The Borough of Manhattan, The City of New York and in
such other Authorized Newspapers as the Trustee shall deem appropriate, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will, unless otherwise required
by mandatory provisions of applicable escheat, or abandoned or unclaimed
property law, be repaid to the Company.
SECTION 1004. EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 1005. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof so long as
any Security is outstanding hereunder, an Officers' Certificate complying with
Section 314(a) of the Trust Indenture Act, stating that a review of the
activities of the Company during such year and of performance under this
Indenture has been made under the supervision of the signers thereof and whether
or not to the best of their
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knowledge, based upon such review, the Company is in default in the performance,
observance or fulfillment of any of its covenants and other obligations under
this Indenture, and if the Company shall be in default, specifying each such
default known to them and the nature and status thereof. One of the officers
signing the Officers' Certificate delivered pursuant to this Section 1005 shall
be the principal executive, financial or accounting officer of the Company.
For purposes of this Section, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.
SECTION 1006. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 1004, or any covenant added for the
benefit of any series of Securities as contemplated by Section 301 (unless
otherwise specified pursuant to Section 301) if before or after the time for
such compliance the Holders of a majority in principal amount of the Outstanding
Securities of all series affected by such omission (acting as one class) shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
SECTION 1007. ADDITIONAL AMOUNTS.
If the Securities of a series expressly provide for the payment of
Additional Amounts, the Company will pay to the Holder of any Security of such
series Additional Amounts as expressly provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of or
any premium or interest on, or in respect of, any Security of any series or the
net proceeds received from the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided for in this Section 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 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.
If the Securities of a series provide for the payment of Additional
Amounts, at least 10 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 10 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
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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 1007.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
Unless otherwise provided with respect to the Securities of a series
as contemplated by Section 301, the election of the Company to redeem any
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all the Securities of any series,
the Company shall, a reasonable period prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. SELECTION BY TRUSTEE 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, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series or of the principal amount
of global Securities of such series.
The Trustee shall promptly notify the Company and the Security
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.
55
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For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 107 to each Holder of Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date;
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price;
(6) that the redemption is for a sinking fund, if such is the case;
and
(7) the "CUSIP" number, if applicable.
A notice of redemption as contemplated by Section 107 need not
identify particular Securities to be redeemed. Notice of redemption of
Securities to be redeemed at the election of the Company shall be given by the
Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or before 10:00 a.m., Houston, Texas time, on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, and any Additional Amounts with respect to, all the
Securities which are to be redeemed on that date.
56
<PAGE>
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
(and any Additional Amounts) to the Redemption Date; PROVIDED, HOWEVER, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security or, in the case of Original Issue Discount Securities,
the Securities' Yield to Maturity.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series and
Stated Maturity, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
SECTION 1108. PURCHASE OF SECURITIES.
Unless otherwise specified as contemplated by Section 301, the
Company and any Affiliate of the Company may at any time purchase or otherwise
acquire Securities 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 and, upon such delivery,
the indebtedness represented thereby shall be deemed to be satisfied. Section
309 shall apply to all Securities so delivered.
57
<PAGE>
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment," and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment." 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 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption), and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; PROVIDED that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking payment shall be reduced
accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior (unless a shorter period shall be
satisfactory to the Trustee) to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivery of or by crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 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 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
58
<PAGE>
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any or all series may be
called at any time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be made, given or taken by Holders
of Securities of such series.
SECTION 1302. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1301, to be
held at such time and at such place in Houston, Texas, or in New York, New
York, or in London, England, or in any other location, as the Trustee
shall determine. Notice of every meeting of Holders of Securities of any
series, setting forth the time and the place of such meeting and in
general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 107, not less than 20 nor more
than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in aggregate principal amount of the
Outstanding Securities of any series, shall have requested the Trustee for
any such series to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1301, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 30 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and
the place in Houston, Texas, or in New York, New York, or in London,
England, for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in Subsection (a) of this Section.
SECTION 1303. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of
any series, a Person shall be (1) a Holder of one or more Outstanding Securities
of such series, or (2) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
59
<PAGE>
SECTION 1304. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series, be
dissolved. In any other case, the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Subject to Section 1305(d), notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1302(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly that Persons
entitled to vote a majority in principal amount of the Outstanding Securities of
such series shall constitute a quorum.
Except as limited by the first proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in aggregate principal amount of the Outstanding
Securities of that series; PROVIDED, HOWEVER, that, except as limited by the
first proviso to Section 902, any resolution with respect to any request,
demand, authorization, direction, notice, consent or waiver which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage that is less than a majority in aggregate principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in aggregate
principal amount of the Outstanding Securities of that series.
Except as limited by the first proviso to Section 902, any
resolution passed or decision taken at any meeting of Holders of Securities of
any series duly held in accordance with this Section shall be binding on all the
Holders of Securities of such series, whether or not present or represented at
the meeting.
SECTION 1305. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) The holding of Securities shall be proved in the manner
specified in Section 105 and the appointment of any proxy shall be proved
in the manner specified in Section 105. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 105 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
1302(b), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting
shall be elected
60
<PAGE>
by vote of the Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Security of such series and each
proxy shall be entitled to one vote for each $1,000 principal amount of
the Outstanding Securities of such series held or represented by him;
PROVIDED, HOWEVER, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Security of such
series or as a proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1302 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of such series represented
at the meeting; and the meeting may be held as so adjourned without
further notice.
SECTION 1306. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
* * *
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
61
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
MIDCOAST ENERGY RESOURCES, INC.
By_______________________________________
Name:
Title:
___________________________________, Trustee
By_______________________________________
Name:
Title:
SUBSIDIARY GUARANTORS:
MAGNOLIA RESOURCES, INC.
By_______________________________________
Name:
Title:
62
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MAGNOLIA GATHERING, INC.
By_______________________________________
Name:
Title:
MIDCOAST INTERSTATE TRANSMISSION, INC.
By_______________________________________
Name:
Title:
TENNESSEE RIVER INTRASTATE GAS COMPANY, INC.
By_______________________________________
Name:
Title:
63
EXHIBIT 4.2
- --------------------------------------------------------------------------------
MIDCOAST ENERGY RESOURCES, INC.
AND
TRUSTEE
-------------------------------
INDENTURE
DATED AS OF
_______________________, 1999
DEBT SECURITIES
(SUBORDINATED DEBT)
- --------------------------------------------------------------------------------
<PAGE>
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
- ---------------- --------------
ss.310 (a)(1).............................................. 609
(a)(2).............................................. 609
(a)(3).............................................. Not Applicable
(a)(4).............................................. Not Applicable
(b)................................................. 608, 610
ss.311 (a)................................................. 613
(b)................................................. 613
(c)................................................. Not Applicable
ss.312 (a)................................................. 701, 702(a)
(b)................................................. 702(b)
(c)................................................. 702(c)
ss.313 (a)................................................. 703(a)
(b)................................................. 703(b)
(c)................................................. 703(c)
(d)................................................. 703(d)
ss.314 (a)................................................. 704, 1005
(b)................................................. Not Applicable
(c)(1).............................................. 103
(c)(2).............................................. 103
(c)(3).............................................. Not Applicable
(d)................................................. Not Applicable
(e)................................................. 103
ss.315 (a)................................................. 601(a)
(b)................................................. 602
(c)................................................. 601(b)
(d)................................................. 601(c)
(d)(1).............................................. 601(a)(1)
(d)(2).............................................. 601(c)(2)
(d)(3).............................................. 601(c)(3)
(e)................................................. 513
ss.316 (a)(1)(A)........................................... 502, 511
(a)(1)(B)........................................... 512
(a)(2).............................................. Not Applicable
(a)(last sentence).................................. 101
(b)................................................. 508
ss.317 (a)(1).............................................. 503
(a)(2).............................................. 504
(b)................................................. 1003
ss.318 (a)................................................. 108
- ---------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
PAGE
RECITALS OF THE COMPANY......................................................1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS....................................................1
Act .................................................................2
Additional Amounts.....................................................2
Affiliate..............................................................2
Agent Members..........................................................2
Authenticating Agent...................................................2
Authorized Newspaper...................................................2
Board of Directors.....................................................2
Board Resolution.......................................................3
Business Day...........................................................3
Capital Stock..........................................................3
Capitalized Lease Obligation...........................................3
Commission.............................................................3
Company................................................................3
"Company Request" and "Company Order"..................................3
Conversion Event.......................................................3
Corporate Trust Office.................................................3
Defaulted Interest.....................................................3
Depositary.............................................................3
Designated Senior Indebtedness.........................................4
Disqualified Capital Stock.............................................4
"Dollar" or "$"........................................................4
Event of Default.......................................................4
Exchange Rate..........................................................4
Holder.................................................................4
Indebtedness...........................................................4
Indenture..............................................................5
interest...............................................................5
Interest Payment Date..................................................5
Interest Swap and Hedging Obligation...................................5
Judgment Currency......................................................5
Junior security........................................................5
Maturity...............................................................5
Obligor................................................................5
Officers' Certificate..................................................6
Opinion of Counsel.....................................................6
i
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PAGE
Original Issue Discount Security.......................................6
Outstanding............................................................6
Paying Agent...........................................................7
Payment Default........................................................7
Payment Notice.........................................................7
Person.................................................................7
Place of Payment.......................................................7
Predecessor Security...................................................7
Qualified Capital Stock................................................7
Redemption Date........................................................7
Redemption Price.......................................................7
Regular Record Date....................................................7
Required Currency......................................................8
Responsible Officer....................................................8
Securities.............................................................8
Security Custodian.....................................................8
Security Register......................................................8
Senior Indebtedness....................................................8
Special Record Date....................................................8
Stated Maturity........................................................8
Subsidiary.............................................................9
Subsidiary Guarantee
Subsidiary Guarantor
Trustee................................................................9
Trust Indenture Act....................................................9
United States..........................................................9
United States Alien....................................................9
U.S. Government Obligations............................................9
Vice President.........................................................9
Wholly Owned Subsidiary................................................9
Yield to Maturity.....................................................10
SECTION 102. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.............10
SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS..........................10
SECTION 104. FORM OF DOCUMENTS DELIVERED TO TRUSTEE........................11
SECTION 105. ACTS OF HOLDERS; RECORD DATES.................................11
SECTION 106. NOTICES, ETC., TO TRUSTEE, COMPANY AND SUBSIDIARY GUARANTORS..12
SECTION 107. NOTICE TO HOLDERS; WAIVER.....................................13
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT.............................13
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS......................14
SECTION 110. SUCCESSORS AND ASSIGNS........................................14
SECTION 111. SEPARABILITY CLAUSE...........................................14
SECTION 112. BENEFITS OF INDENTURE.........................................14
ii
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PAGE
SECTION 113. GOVERNING LAW.................................................14
SECTION 114. LEGAL HOLIDAYS................................................14
SECTION 115. CORPORATE OBLIGATION..........................................15
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY...............................................15
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION...............15
SECTION 203. SECURITIES IN GLOBAL FORM.....................................16
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES..........................19
SECTION 302. DENOMINATIONS.................................................22
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING................22
SECTION 304. TEMPORARY SECURITIES..........................................23
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE...........24
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES..............25
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED................26
SECTION 308. PERSONS DEEMED OWNERS.........................................27
SECTION 309. CANCELLATION..................................................27
SECTION 310. COMPUTATION OF INTEREST.......................................27
SECTION 311. CUSIP NUMBERS.................................................27
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.......................28
SECTION 402. APPLICATION OF TRUST MONEY....................................30
SECTION 403. DISCHARGE OF LIABILITY ON SECURITIES OF ANY SERIES............30
SECTION 404. REINSTATEMENT.................................................31
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.............................................31
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT............33
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.....................................................34
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM..............................35
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES
OR COUPONS..................................................36
SECTION 506. APPLICATION OF MONEY COLLECTED................................36
iii
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PAGE
SECTION 507. LIMITATION ON SUITS...........................................37
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL PREMIUM
AND INTEREST................................................37
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES............................38
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE................................38
SECTION 511. DELAY OR OMISSION NOT WAIVER..................................38
SECTION 512. CONTROL BY HOLDERS............................................38
SECTION 513. WAIVER OF PAST DEFAULTS.......................................39
SECTION 514. UNDERTAKING FOR COSTS.........................................39
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS..............................39
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES...........................40
SECTION 602. NOTICE OF DEFAULTS............................................41
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.....................................41
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES........42
SECTION 605. MAY HOLD SECURITIES...........................................42
SECTION 606. MONEY HELD IN TRUST...........................................42
SECTION 607. COMPENSATION AND REIMBURSEMENT................................43
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.......................43
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.......................44
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.............44
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR........................46
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS...47
SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.............47
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT...........................47
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.....49
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS........49
SECTION 703. REPORTS BY TRUSTEE............................................50
SECTION 704. REPORTS BY COMPANY............................................50
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS..........51
SECTION 802. SUCCESSOR PERSON SUBSTITUTED..................................51
iv
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PAGE
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS............52
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS...............53
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES..........................54
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.............................54
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT...........................54
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES............54
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST................55
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY...........................55
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.........55
SECTION 1004. EXISTENCE.................................................57
SECTION 1005. STATEMENT BY OFFICERS AS TO DEFAULT.......................57
SECTION 1006. WAIVER OF CERTAIN COVENANTS...............................57
SECTION 1007. ADDITIONAL AMOUNTS........................................57
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE..................................58
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.....................58
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.........59
SECTION 1104. NOTICE OF REDEMPTION......................................59
SECTION 1105. DEPOSIT OF REDEMPTION PRICE...............................60
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.....................60
SECTION 1107. SECURITIES REDEEMED IN PART...............................60
SECTION 1108. PURCHASE OF SECURITIES....................................61
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE..................................61
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.....61
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.................62
ARTICLE THIRTEEN
SUBORDINATION.........................................................62
SECTION 1301. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS............62
v
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PAGE
SECTION 1302. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES.........62
SECTION 1303. SECURITIES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR
INDEBTEDNESS ON DISSOLUTION, LIQUIDATION OR
REORGANIZATION..........................................64
SECTION 1304. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS...65
SECTION 1305. OBLIGATIONS OF THE COMPANY UNCONDITIONAL..................65
SECTION 1306. TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN
ABSENCE OF NOTICE.......................................66
SECTION 1307. APPLICATION BY TRUSTEE OF AMOUNTS DEPOSITED WITH IT.......66
SECTION 1308. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF
THE COMPANY OR HOLDERS OF SENIOR INDEBTEDNESS...........66
SECTION 1309. TRUSTEE TO EFFECTUATE SUBORDINATION OF SECURITIES.........67
SECTION 1310. RIGHT OF TRUSTEE TO HOLD SENIOR INDEBTEDNESS..............67
SECTION 1311. ARTICLE THIRTEEN NOT TO PREVENT EVENTS OF DEFAULT.........67
SECTION 1312. NO FIDUCIARY DUTY OF TRUSTEE TO HOLDERS OF SENIOR
INDEBTEDNESS............................................68
SECTION 1313. ARTICLE APPLICABLE TO PAYING AGENT........................68
SECTION 1314. SUBORDINATION OF SUBSIDIARY GUARANTEES....................68
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES.....................................68
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.................68
SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS........................69
SECTION 1403. PERSONS ENTITLED TO VOTE AT MEETINGS......................69
SECTION 1404. QUORUM; ACTION............................................69
SECTION 1405. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS................................................70
SECTION 1406. COUNTING VOTES AND RECORDING ACTION OF MEETINGS...........71
vi
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INDENTURE, dated as of _______________, 1999 between MIDCOAST ENERGY
RESOURCES, INC., a corporation duly organized and existing under the laws of the
State of Nevada (herein called the "Company"), having its principal office at
1100 Louisiana, Suite 2950, Houston, Texas 77002 the Subsidiary Guarantors (as
defined herein), and ___________________________, a [national banking
association], as Trustee (herein called the "Trustee"), the office of the
Trustee at which at the date hereof its corporate trust business is principally
administered being ________________________.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
subordinated debentures, notes or other evidences of indebtedness (herein called
the "Securities"), to be issued in one or more series, either with or without
the benefit of Subsidiary Guarantors (as defined herein), as in this Indenture
provided.
This Indenture is subject to the provisions of the Trust Indenture
Act and the rules and regulations of the Commission promulgated thereunder that
are required to be part of this Indenture and, to the extent applicable, shall
be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of series
thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States,
<PAGE>
and, except as otherwise herein expressly provided, the term "generally
accepted accounting principles" with respect to any computation required
or permitted hereunder shall mean such accounting principles as are
generally accepted in the United States at the date of such computation;
and
(3) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any
particular Article, Section or other
subdivision.
Certain terms, used principally in Article Six, are defined in
Section 102.
"Act", when used with respect to any Holder, has the meaning
specified in Section 105.
"Additional Amounts" means any additional amounts that are 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 the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Members" has the meaning specified in Section 203.
"Authenticating Agent" means any Person, which may include the
Company, authorized by the Trustee to act on behalf of the Trustee pursuant to
Section 614 to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
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"Business Day", when used with respect to any Place of Payment,
means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in that Place of Payment are authorized or obligated
by law or executive order to close.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness), warrants, options, participations or other equivalents of or
interests (however designated) in stock issued by that Person.
"Capitalized Lease Obligation" means rental obligations under a
lease that are required to be capitalized for financial reporting purposes in
accordance with generally accepted accounting principles, and the amount of
Indebtedness represented by such obligations shall be the capitalized amount of
such obligations, as determined in accordance with generally accepted accounting
principles.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by its Chairman of the Board,
its President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Controller, an Assistant Controller, its Secretary or an Assistant
Secretary, and delivered to the Trustee.
"Conversion Event" has the meaning specified in Section 501.
"Corporate Trust Office" means the principal office of the
Trustee in [
] at which at any particular time its corporate trust business shall be
principally administered, which office at the date hereof is that indicated in
the introductory paragraph of this Indenture.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in global form, the Person designated as
Depositary by the Company pursuant to Section 301 with respect to the Securities
of such series until a successor Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Depositary" shall
mean or include each Person who is then a Depositary hereunder, and if at any
time there is more than one such Person, "Depositary" as used with respect to
the Securities of any series shall mean the Depositary with respect to the
Securities of that series.
"Designated Senior Indebtedness," unless otherwise provided with
respect to the Securities of a series as contemplated by Section 301, means any
Senior Indebtedness that (i) in the
3
<PAGE>
instrument evidencing the same or the assumption or guarantee thereof (or
related documents to which the Company is a party) is expressly designated as
"Designated Senior Indebtedness" for purposes of this Indenture and (ii)
satisfies such other conditions as may be provided with respect to the
Securities of such series; PROVIDED that such instruments or documents may place
limitations and conditions on the right of such Senior Indebtedness to exercise
the rights of Designated Senior Indebtedness.
"Disqualified Capital Stock" means, when used with respect to the
Securities of any series, (a) except as set forth in (b), with respect to any
Person, Capital Stock of such Person that, by its terms or by the terms of any
security into which it is convertible, exercisable or exchangeable, is, or upon
the happening of an event or the passage of time would be, required to be
redeemed or repurchased (including at the option of the holder thereof) by such
Person or any Subsidiary of such Person, in whole or in part, on or prior to the
Stated Maturity of the Securities of such series, and (b) with respect to any
Subsidiary of such Person (including with respect to any Subsidiary of the
Company), any Capital Stock other than any common stock with no preference,
privileges, or redemption or repayment provisions.
"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 debts.
"Event of Default" has the meaning specified in Section 501.
"Exchange Rate" has the meaning specified in Section 501.
"Holder", when used with respect to any Security, means the Person
in whose name the Security is registered in the Security Register.
"Indebtedness" of any Person, unless otherwise provided with respect
to the Securities of a series as contemplated by Section 301, means, without
duplication, the following (whether currently outstanding or hereafter incurred
or created): (i) all liabilities and obligations, contingent or otherwise, of
any such Person (a) in respect of borrowed money (whether or not the recourse of
the lender is to the whole of the assets of such Person or only to a portion
thereof), (b) evidenced by bonds, notes, debentures or similar instruments, (c)
representing the balance deferred and unpaid of the purchase price of any
property or services, except such as would constitute trade payables to trade
creditors in the ordinary course of business that are not more than 90 days past
their original due date, (d) evidenced by bankers' acceptances or similar
instruments issued or accepted by banks, (e) for the payment of money relating
to a Capitalized Lease Obligation or (f) evidenced by a letter of credit or a
reimbursement obligation of such Person with respect to any letter of credit;
(ii) all net obligations of such Person under Interest Swap and Hedging
Obligations; (iii) all liabilities of others of the kind described in the
preceding clause (i) or (ii) that such Person has guaranteed or that is
otherwise its legal liability and all obligations to purchase, redeem or acquire
any Capital Stock; and (iv) any and all deferrals, renewals, extensions,
refinancings, refundings (whether direct or indirect) of, or amendments,
modifications or supplements to, any liability of the kind described in any of
the preceding clauses (i), (ii) or (iii), or this clause (iv), whether or not
between or among the same parties.
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<PAGE>
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of particular series of Securities established as
contemplated by Section 301 and the provisions of the Trust Indenture Act that
are deemed to be a part of and govern this instrument.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after
Maturity.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Interest Swap and Hedging Obligation" means any obligation of any
Person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such Person
is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional amount
in exchange for periodic payments made by such Person calculated by applying a
fixed or floating rate of interest on the same notional amount.
"Judgment Currency" has the meaning specified in Section 506.
"Junior security" of a Person means, when used with respect to the
Securities of any series, any Qualified Capital Stock of such Person or any
Indebtedness of such Person that is subordinated in right of payment to the
Securities of such series and has no scheduled installment of principal due, by
redemption, sinking fund payment or otherwise, on or prior to the Stated
Maturity of the Securities of such series.
"Maturity", when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
"Obligor," on the Securities of any series means the Company, any
Subsidiary Guarantor with respect to such Securities and any successor obligor
upon the Securities of such series, and all other terms herein which are defined
in the Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein.
"Officers' Certificate" means a certificate signed by the Chairman
of the Board, the President or a Vice President, and by the Treasurer, the
Controller, the Secretary or an Assistant Treasurer, Assistant Controller or
Assistant Secretary, of the Company, and delivered to the Trustee, which
certificate shall comply with Section 103 hereof.
5
<PAGE>
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for or an employee of the Company, rendered, if applicable, in
accordance with Section 314(c) of the Trust Indenture Act, which opinion shall
comply with Section 103 hereof.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities of a series,
means, as of the date of determination, all Securities of such series
theretofore authenticated and delivered under this Indenture, EXCEPT:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore irrevocably deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its
own Paying Agent) for the Holders of such Securities; PROVIDED that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory
to the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, or whether a
quorum is present at a meeting of Holders of Securities, (a) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding for such purposes 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 502, (b) the principal amount of a Security
denominated in a foreign currency shall be the U.S. dollar equivalent,
determined by the Company on the date of original issuance of such Security, of
the principal amount (or, in the case of an Original Issue Discount Security,
the U.S. dollar equivalent, determined on the date of original issuance of such
Security, of the amount determined as provided in (a) above), of such Security
and (c) Securities owned by the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor shall be disregarded
and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver or upon any such
determination as to the presence of a quorum, only Securities which the Trustee
knows to be so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's
6
<PAGE>
right so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor.
"Paying Agent" means any Person, which may include the Company,
authorized by the Company to pay the principal of (and premium, if any) or
interest on or Additional Amounts with respect to any one or more series of
Securities on behalf of the Company.
"Payment Default" has the meaning specified in Section 1302(a).
"Payment Notice" has the meaning specified in Section 1302(b).
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof or any other entity of any kind.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on and any Additional Amounts with respect to the Securities of
that series are payable as specified in accordance with Section 301 subject to
the provisions of Section 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Qualified Capital Stock" means any Capital Stock of the Company
that is not Disqualified Capital Stock.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to the terms
of such Security and this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to the terms of
such Security and this Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Securities of any series means the date specified for that
purpose as contemplated by Section 301, or, if not so specified, the last day of
the calendar month preceding such Interest Payment Date if such Interest Payment
Date is the fifteenth day of the calendar month or the fifteenth day of the
calendar month preceding such Interest Payment Date if such Interest Payment
Date is the first day of a calendar month, whether or not such day shall be a
Business Day.
"Required Currency" has the meaning specified in Section 506.
"Responsible Officer", when used with respect to the Trustee, means
the Chairman or any Vice Chairman of the Board of Directors, the Chairman or any
Vice Chairman of the
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<PAGE>
Executive Committee of the Board of Directors, the Chairman of the Trust
Committee, the President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer, any Assistant Treasurer, the Cashier, any Assistant
Cashier, any Trust Officer or Assistant Trust Officer, the Controller or any
Assistant Controller or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security 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.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" of the Company, unless otherwise provided with
respect to the Securities of a series as contemplated by Section 301, means (i)
all Indebtedness of the Company, whether currently outstanding or hereafter
issued, unless, by the terms of the instrument creating or evidencing such
Indebtedness, it is provided that such Indebtedness is not superior in right of
payment to the Securities or to other Indebtedness which is PARI PASSU with or
subordinated to the Securities, and (ii) any modifications, refunding,
deferrals, renewals or extensions of any such Indebtedness or securities, notes
or other evidences of Indebtedness issued in exchange for such Indebtedness;
PROVIDED that in no event shall "Senior Indebtedness" include (a) Indebtedness
of the Company owed or owing to any Subsidiary of the Company or any officer,
director or employee of the Company or any Subsidiary of the Company, (b)
Indebtedness to trade creditors or (c) any liability for taxes owed or owing by
the Company.
"Special Record Date" for the payment of any Defaulted Interest on
the Securities of any series means a date fixed by the Trustee pursuant to
Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
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"Subsidiary Guarantee" means a full and unconditional guarantee by a
Subsidiary Guarantor of the obligations of the Company with respect to the
Securities of a series, which guarantee shall be on he basis, and subject to the
terms and conditions, as may be specified as contemplated by Section 301 in
connection with the issuance of the Securities of such series.
"Subsidiary Guarantor" means each of (i) the Persons so identified
on the signature page of this Indenture or any indenture supplemental hereto
who, pursuant to the terms of any series of Securities, are to provide a
Subsidiary Guarantee with respect to that series of Securities, (ii) any other
Person that executes a Subsidiary Guarantee with respect to a series of
Securities in accordance with the provisions thereof and (iii) their respective
successors and assigns, to the extent specified in the Subsidiary Guarantees.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905.
"United States" means the United States of America (including the
States and the District of Columbia) and its "possessions", which include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"United States Alien" means any Person who, for United States
federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien or foreign fiduciary of an estate or trust, or
a foreign partnership.
"U.S. Government Obligations" has the meaning specified in
Section 401.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Wholly Owned Subsidiary" means a corporation all the outstanding
voting stock (other than any directors' qualifying shares) of which is owned,
directly or indirectly, by the Company or by one or more other Wholly Owned
Subsidiaries, or by the Company and one or more other Wholly Owned Subsidiaries.
For the purposes of this definition, "voting stock" means stock which ordinarily
has voting power for the election of directors, whether at all times or only so
long as no senior class of stock has such voting power by reason of any
contingency.
"Yield to Maturity", when used with respect to any Original Issue
Discount Security, means the yield to maturity, if any, set forth on the face
thereof.
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SECTION 102. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the Trust Indenture
Act, the provision is incorporated by reference in and made a part of this
Indenture. The following Trust Indenture Act terms used in this Indenture have
the following meanings:
"Bankruptcy Act" means the Bankruptcy Act or Title 11 of the United
States Code.
"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 Trust
Indenture Act, defined by Trust Indenture Act reference to another statute or
defined by Commission rule under the Trust Indenture Act and not otherwise
defined herein have the meanings assigned to them therein.
SECTION 103. COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any (including
any covenants the compliance with which constitutes a condition precedent,
provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any (including any covenants the
compliance with which constitutes a condition precedent) have been complied
with, except that in the case of any such application or request as to which the
furnishing of such documents is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
(1) a statement that each Person signing such certificate or opinion
has read such covenant or condition and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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(3) a statement that, in the opinion of each such Person, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such Person,
such condition or covenant has been complied with.
SECTION 104. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 105. ACTS OF HOLDERS; RECORD DATES.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record thereof or
both are delivered to the Trustee and, where it is hereby expressly required, to
the Company. Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders signing such instrument or instruments and so voting at any
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent, or the holding of any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 601)
conclusive in favor of the Trustee and the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1406.
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The Company may set in advance a record date for purposes of
determining the identity of Holders of Securities entitled to vote or consent to
any action by vote or consent authorized or permitted under this Indenture. If a
record date is fixed, those Persons who were Holders of Outstanding Securities
at such record date (or their duly designated proxies), and only those Persons,
shall be entitled with respect to such Securities to take such action by vote or
consent or to revoke any vote or consent previously given, whether or not such
Persons continue to be Holders after such record date. Promptly after any record
date is set pursuant to this paragraph, the Company, at its own expense, shall
cause notice thereof to be given to the Trustee in writing in the manner
provided in Section 106 and to the relevant Holders as set forth in Section 107.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities held by
any Person, and the date of holding the same, shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security. Any Holder or subsequent Holder may revoke the request, demand,
authorization, direction, notice, consent or other Act as to his Security or
portion of his Security; PROVIDED, HOWEVER, that such revocation shall be
effective only if the Trustee receives the notice of revocation before the date
the Act becomes effective.
SECTION 106. NOTICES, ETC., TO TRUSTEE, COMPANY AND SUBSIDIARY GUARANTORS.
Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or by any Subsidiary
Guarantor shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Administration, or
(2) the Company or any Subsidiary Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed
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to it at the address of its principal office specified in the first
paragraph of this Indenture or at any other address previously furnished
in writing to the Trustee by the Company, Attention: Corporate Secretary.
SECTION 107. NOTICE TO HOLDERS; WAIVER.
Where this Indenture provides for notice to Holders of Securities of
any event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at the address of such Holder as it appears
in the Security Register, not later than the latest date, and not earlier than
the earliest date, prescribed for the giving of such notice.
In case by reason of the suspension of regular mail service, or by
reason of any other cause it shall be impracticable to give such notice to
Holders of Securities by mail, then such notification as shall be made with the
approval of the Trustee shall constitute a sufficient notification for every
purpose hereunder. In any case in which notice to Holders of Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Security, shall affect the sufficiency
of such notice with respect to other Holders of Securities.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision hereof which is
required to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision of the Trust Indenture Act shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the former provision shall
be deemed to apply to this Indenture as so modified or to be excluded.
SECTION 109. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 110. SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company or any
Subsidiary Guarantor shall bind its successors and assigns, whether so expressed
or not.
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SECTION 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
SECTION 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder, any Authenticating Agent, Paying Agent and Security Registrar, and
the Holders and holders of any Senior Indebtedness, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 113. GOVERNING LAW.
This Indenture, any Subsidiary Guarantees and the Securities shall
be governed by and construed in accordance with the laws of the State of New
York, but without giving effect to applicable principles of conflicts of law to
the extent the application of the laws of another jurisdiction would be required
thereby.
SECTION 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of principal and interest (and premium and Additional
Amounts, if any) need not be made at such Place of Payment on such date, but may
be made on the next succeeding Business Day at such Place of Payment with the
same force and effect as if made on the Interest Payment Date or Redemption
Date, or at the Stated Maturity, PROVIDED that no interest shall accrue with
respect to such payment for the period from and after such Interest Payment
Date, Redemption Date or Stated Maturity, as the case may be.
SECTION 115. CORPORATE OBLIGATION.
No recourse may be taken, directly or indirectly, against any
incorporator, subscriber to the capital stock, stockholder, officer, director or
employee of the Company or the Trustee or of any predecessor or successor of the
Company or the Trustee with respect to the Company's obligations on the
Securities or the obligations of the Company or the Trustee under this Indenture
or any certificate or other writing delivered in connection herewith.
ARTICLE TWO
SECURITY FORMS
SECTION 201. 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) as shall be established by or pursuant
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to a Board Resolution or in one or more indentures supplemental hereto, in each
case with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If temporary Securities of any series are issued in global form as
permitted by Section 304, the form thereof shall be established as provided in
the preceding sentence. A copy of the Board Resolution establishing the form or
forms of Securities of any series (or any such temporary global Security) shall
be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Company Order
contemplated by Section 303 for the authentication and delivery of such
Securities (or any such temporary global Security).
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution thereof.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
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 203. SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in global form, as
contemplated by Section 301, then, notwithstanding clause (10) of Section 301
and the provisions of Section 302, any such 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. Any endorsement of a Security in global form 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 303 or Section 304.
Subject to the provisions of Section 303 and, if applicable, Section 304, 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 Security in global form, the Company
authorizes the execution and delivery by the Trustee of
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a letter of representation or other similar agreement or instrument in the form
customarily provided for by the Depositary appointed with respect to such global
Security. Any Security in global form 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 pursuant to Section 303 or
304 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 103 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 Security issued in
global form 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
Security of any series issued in global form 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 305, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the beneficial owners of interests in a
permanent global Security are entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301, then without
unnecessary delay but in any event not later than the earliest date on which
such interests may be so exchanged, the Company shall deliver to the Trustee
definitive Securities of that series in an aggregate principal amount equal to
the principal amount of such permanent global Security, executed by the Company.
On or after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered from time to time in accordance
with instructions given to the Trustee and the Depositary (which instructions
shall be in writing but need not comply with Section 103 or be accompanied by an
Opinion of Counsel) by the Depositary or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or in part, for
definitive Securities of the same series without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such permanent global
Security, a like aggregate principal amount of other definitive Securities of
the same series of authorized denominations and of like tenor as the portion of
such permanent global Security to be exchanged; PROVIDED, HOWEVER, that no such
exchanges may occur during a period beginning at the opening of business 15 days
before any selection of Securities of that series is to be redeemed and ending
on the relevant Redemption Date. Promptly following any such exchange in part,
such permanent global Security marked to evidence the partial exchange shall be
returned by the Trustee to the Depositary or such other depositary referred to
above in accordance with the instructions of the Company referred to above. If a
definitive Security is issued in exchange for any portion of a
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permanent global Security after the close of business at the office or agency
where such exchange occurs on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date, or
(ii) any Special Record Date and before the opening of business at such office
or agency on the related proposed date for payment of Defaulted Interest,
interest or Defaulted Interest, as the case may be, will not be payable on such
Interest Payment Date or proposed date for payment, as the case may be, in
respect of such Security, but will be payable on such Interest Payment Date or
proposed for payment, as the case may be, only to the Person to whom interest in
respect of such portion of such permanent global Security is payable in
accordance with the provisions of this Indenture.
Notwithstanding Section 305, except as otherwise specified as
contemplated by Section 301, transfers of a Security issued in global form 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 Security issued in global form 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 Security Registrar has received a request from the
Depositary or the Trustee 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 203, the Security 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 203,
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
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Holder or the Depositary for all purposes (including with respect to the
registration and delivery, and the respective principal amounts, of the
Securities to be issued).
The provisions of the last sentence of Section 303 shall apply to
any Security in global form if such Security was never issued and sold by the
Company and the Company delivers to the Trustee the Security in global form
together with written instructions (which need not comply with Section 103 and
need not be accompanied by an Opinion of Counsel) with regard to the reduction
in the principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Sections 201 and 307, unless
otherwise specified as contemplated by Section 301, payment of principal of (and
premium, if any) and interest on and any Additional Amounts with respect to any
Security in permanent global form shall be made to the Person or Persons
specified therein.
Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company or of the Trustee shall treat a Person as the Holder of such principal
amount of Outstanding Securities represented by a global Security as shall be
specified in a written statement, if any, of the Holder of such global Security,
which is produced to the Security Registrar by such Holder.
Global Securities may be issued in either temporary or permanent
form. Permanent global Securities will be issued in definitive form.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the Securities
of the series which may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906 or 1107);
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(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, 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
203, and the Depositary for any global Security or Securities of such
series;
(4) the manner in which any interest payable on a temporary global
Security on any Interest Payment Date will be paid if other than in the
manner provided in Section 304;
(5) the date or dates on which the principal of (and premium, if
any, on) the Securities of the series is payable or the method of
determination thereof,
(6) the rate or rates, or the method of determination thereof, at
which the Securities of the series shall bear interest, if any, whether
and under what circumstances Additional Amounts with respect to such
Securities shall be payable, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall be
payable and, if other than as set forth in Section 101, the Regular 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
1002, the principal of (and premium, if any), any interest on and any
Additional Amounts with respect to the Securities of the series shall be
payable;
(8) the period or periods within which, the price or prices (whether
denominated in cash, securities or otherwise) at which and the terms and
conditions upon which Securities of the series may be redeemed, in whole
or in part, at the option of the Company, if the Company is to have that
option, and the manner in which the Company must exercise any such option,
if different from those set forth herein;
(9) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices (whether denominated in cash, securities
or otherwise) at which and the terms and conditions upon which Securities
of the series shall be redeemed or purchased in whole or in part pursuant
to such obligation;
(10) the denomination in which any Securities of that series shall
be issuable, if other than denominations of $1,000 and any integral
multiple thereof;
(11) the currency or currencies (including composite currencies) if
other than Dollars, or the form, including equity securities, other debt
securities (including Securities), warrants or any other securities or
property of the Company or any other Person, in which payment of the
principal of (and premium, if any), any interest on and any Additional
Amounts with respect to the Securities of the series shall be payable;
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(12) if the principal of (and premium, if any) or interest on or any
Additional Amounts with respect to the Securities of the series are to be
payable, at the election of the Company or a Holder thereof, in a currency
or currencies (including composite currencies) other than that in which
the Securities are stated to be payable, the currency or currencies
(including composite currencies) in which payment of the principal of (and
premium, if any) and interest on, and any Additional Amounts with respect
to, Securities of such series as to which such election is made shall be
payable, and the periods within which and the terms and conditions upon
which such election is to be made;
(13) if the amount of payments of principal of (and premium, if
any), any interest on and any Additional Amounts with respect to the
Securities of the series may be determined with reference to any
commodities, currencies or indices, values, rates or prices or any other
index or formula, the manner in which such amounts shall be determined;
(14) if other than the entire principal amount thereof, the portion
of the principal amount of Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502;
(15) any additional means of satisfaction and discharge of this
Indenture with respect to Securities of the series pursuant to Section
401, any additional conditions to discharge pursuant to Section 401 or 403
and the application, if any, of Section 403;
(16) any deletions or modifications of or additions to the
definitions set forth in Section 101, the Events of Default set forth in
Section 501 or covenants of the Company set forth in Article Ten
pertaining to the Securities of the series;
(17) if the Securities of the series are to be convertible into or
exchangeable for equity securities, other debt securities (including
Securities), warrants 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) whether the Securities of the initial series shall be issued
upon a senior subordinated basis and, if so, the subordination provisions
applicable to such series (and any related Subsidiary Guarantees) and to
any other series that may be issued thereafter;
(19) whether the Securities of the series shall be guaranteed by one
or more Subsidiary Guarantors and, if so, the terms of the Subsidiary
Guarantees, including the circumstances in which such Subsidiary
Guarantees may be released; and
(20) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution
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referred to above and (subject to Section 303) set forth, or determined in the
manner provided, in the Officers' Certificate referred to above or in any such
indenture supplemental hereto.
At the option of the Company, interest on the Securities of any
series that bears interest may be paid by mailing a check to the address of any
Holder as such address shall appear in the Security Register.
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 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 setting forth the terms of the series.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Thirteen.
SECTION 302. DENOMINATIONS.
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301. 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 multiple thereof. Unless otherwise
provided as contemplated by Section 301 with respect to any series of
Securities, any Securities of a series denominated in a currency other than
Dollars shall be issuable in denominations that are the equivalent, as
determined by the Company by reference to the noon buying rate in The City of
New York for cable transfers for such currency, as such rate is reported or
otherwise made available by the Federal Reserve Bank of New York, on the
applicable issue date for such Securities, of $1,000 and any integral multiple
thereof.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, its Treasurer or one of its Vice
Presidents, under its corporate seal reproduced thereon or affixed thereto
attested by its Secretary or one of its Assistant Secretaries. The signature of
any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series executed by
the Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with the Company Order shall authenticate and deliver such Securities
as in this Indenture provided and not otherwise.
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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 Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute legal,
valid and binding obligations of the Company, enforceable in accordance
with their terms, except as such enforcement is subject to the effect of
(i) bankruptcy, insolvency, fraudulent conveyance, reorganization or other
laws relating to or affecting creditors' rights and (ii) general
principles of equity (regardless of whether such enforcement is considered
in a proceeding in equity or at law).
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security, a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309 together
with a written statement (which need not comply with Section 103 and need not be
accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security
shall be deemed never to have been authenticated and delivered hereunder and
shall never be entitled to the benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any
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authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, in registered form and with such appropriate
insertions, omissions, substitutions and other variations as the officers of the
Company executing such Securities may determine, as evidenced by their execution
of such Securities.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with the provisions of the following
paragraphs), if temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities of any series, the Company shall execute and the
Trustee shall authenticate and deliver in exchange therefor a like principal
amount of definitive Securities of the same series of authorized denominations.
Until so exchanged the temporary Securities of any series shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities
of such series.
All Outstanding temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and delivered
hereunder.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept for each series of Securities at
one of the offices or agencies maintained pursuant to Section 1002 a register
(the register maintained in such office and in any other office or agency of the
Company in a Place of Payment being herein sometimes collectively referred to as
the "Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities of such series. The Trustee is hereby initially
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Except as set forth in Section 203 or as may be provided pursuant to
Section 301, upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
the same series and of like tenor, of any authorized denominations and of a like
aggregate principal amount.
At the option of the Holder, Securities of any series may be
exchanged for other Securities of the same series and of like tenor, of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
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All Securities issued upon any registration of transfer or exchange
of Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than exchange
pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the mailing of a notice of
redemption of Securities of such series selected for redemption and ending at
the close of business on the day of the mailing of the relevant notice of
redemption or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
and (ii) such security or indemnity as may be required by them to save each of
them and any agent of either of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and upon its request the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fee and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the
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Company, whether or not the destroyed, lost or stolen Security shall be at any
time enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest. Unless
otherwise provided with respect to the Securities of any series, payment of
interest may be made at the option of the Company by check mailed or delivered
to the address of any Person entitled thereto as such address shall appear in
the Security Register.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days after
the receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date and,
in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of
Securities of such series at his address as it appears in the Security
Register, not less than 10 days prior to such Special Record Date. The
Trustee may, in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least once in an
Authorized Newspaper, but such publication shall not be a condition
precedent to the establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so mailed, such
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Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may
be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
pursuant to this Clause, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture, upon registration of transfer of, in exchange
for or in lieu of, any other Security, shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Sections 305 and 307) interest on such Security and for all
other purposes whatsoever, whether or not such Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 309. CANCELLATION.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered shall be promptly canceled by the Trustee. The
Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly canceled by the Trustee. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as expressly permitted by this Indenture. All canceled Securities held by
the Trustee shall be disposed of as directed by a Company Order; PROVIDED that
the Trustee shall not be required to destroy such Securities.
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a year of twelve 30- day months.
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SECTION 311. CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall use "CUSIP" numbers in
notices of redemption as a convenience to Holders; PROVIDED that any such notice
may state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further
effect with respect to Securities of a series, and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture with respect to Securities of such series, when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities which have been destroyed,
lost or stolen and which have been replaced or paid as provided in
Section 306, and (ii) Securities for whose payment money has
theretofore been deposited in trust or segregated and held in trust
by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) with respect to all Outstanding Securities of such series
not theretofore delivered to the Trustee for cancellation, the
Company has deposited or caused to be deposited with the Trustee as
trust funds, under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee, money or U.S.
Government Obligations maturing as to principal and interest in such
amounts and at such times as will (together with the income to
accrue thereon and without consideration of any reinvestment
thereof) be sufficient to pay and discharge (with such delivery in
trust to be for the stated purpose of paying and discharging) the
entire indebtedness on all Outstanding Securities of such series not
theretofore delivered to the Trustee for cancellation for principal
(and premium and Additional Amounts, if any) and interest to the
Stated Maturity or any Redemption Date contemplated by the
penultimate paragraph of this Section, 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 301, to be applicable to the Securities of such series;
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(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company with respect to the Outstanding Securities of
such series;
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities of
such series pursuant to this Section 401;
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture with respect to the Outstanding Securities of such
series have been complied with;
(5) if the conditions set forth in Section 401(1)(A) have not been
satisfied, and unless otherwise specified pursuant to Section 301 for the
Securities of such series, the Company has delivered to the Trustee an
Opinion of Counsel to the effect that the Holders of Securities of such
series will not recognize income, gain or loss for United States federal
income tax purposes as a result of such deposit, satisfaction and
discharge and will be subject to United States federal income tax on the
same amount and in the same manner and at the same time as would have been
the case if such deposit, satisfaction and discharge had not occurred; and
(6) no Default or Event of Default with respect to the Securities of
such issue shall have occurred and be continuing on the date of such
deposit or, insofar as clauses (5) or (6) of Section 501 are concerned, at
any time in the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
For the purposes of this Indenture, "U.S. Government Obligations"
means direct non-callable obligations of, or non-callable obligations the
payment of principal of and interest on which is guaranteed by, the United
States of America, or to the payment of which obligations or guarantees the full
faith and credit of the United States of America is pledged, or beneficial
interests in a trust the corpus of which consists exclusively of money or such
obligations or a combination thereof.
If any Outstanding Securities of such series are to be redeemed
prior to their Stated Maturity, whether pursuant to any optional redemption
provisions or in accordance with any mandatory sinking fund requirement, the
trust agreement referred to in subclause (B) of clause (1) of this Section shall
provide therefor and the Company shall make such arrangements as are
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Notwithstanding the satisfaction and discharge of this Indenture
with respect to the Outstanding Securities of such series pursuant to this
Section 401, the obligations of the Company to the Trustee under Section 607,
the obligations to any Authenticating Agent under Section 614 and, except for a
discharge pursuant to subclause (A) of clause (1) of this Section, the
obligations of the Company under Sections 305, 306, 404, 610(e), 701, 1001 and
1002 and the obligations of the Trustee under Section 402 and the last paragraph
of Section 1003 shall survive.
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SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Securities, and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest and Additional Amounts for the payment of which such money has
been deposited with the Trustee.
SECTION 403. DISCHARGE OF LIABILITY ON SECURITIES OF ANY SERIES.
If this Section is specified, as contemplated by Section 301, to be
applicable to Securities of any series, the Company shall be deemed to have paid
and discharged the entire indebtedness on all the Outstanding Securities of such
series, the obligation of the Company under this Indenture and the Securities of
such series to pay the principal of (and premium, if any) and interest on and
any Additional Amounts with respect to Securities of such series, shall cease,
terminate and be completely discharged and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging such satisfaction and
discharge, when
(1) the Company has complied with the provisions of Section 401
(other than any additional conditions specified pursuant to Sections 301
and 401(3) and except that the Opinion of Counsel referred to in Section
401(5) shall state that it is based on a ruling by the Internal Revenue
Service or other change since the date hereof under applicable Federal
income tax law) with respect to all Outstanding Securities of such series,
(2) the Company has delivered to the Trustee a Company Request
requesting such satisfaction and discharge,
(3) the Company has complied with any other conditions specified
pursuant to Section 301 to be applicable to the discharge of Securities of
such series pursuant to this Section 403, and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the discharge of the
indebtedness on the Outstanding Securities of such series have been
complied with.
Upon the satisfaction of the conditions set forth in this Section
with respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; PROVIDED that, the Company shall not be discharged
from any payment obligations in respect of Securities of such series which are
deemed not to be Outstanding under clause (iii) of the definition thereof if
such obligations continue to be valid obligations of the Company under
applicable law or pursuant to Section 305 or 306.
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SECTION 404. REINSTATEMENT
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations deposited with respect to Securities of any series in
accordance with Section 401 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 Company's obligations
under this Indenture with respect to the Securities of such series and the
Securities of such series shall be revived and reinstated as though no deposit
had occurred pursuant to Section 401 until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 401; PROVIDED, HOWEVER, that if the Company has made any
payment of principal of (or 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 U.S. Government
Obligations held by the Trustee or Paying Agent.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities
of any series, means any one of the following events (whatever the reason for
such Event of Default and whether it shall be occasioned by the provisions of
Article Thirteen or be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order, rule
or regulation of any administrative or governmental body), unless it is either
inapplicable to a particular series or it is 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:
(1) default in the payment of any interest on or any Additional
Amounts with respect to any Security of that series when such interest or
Additional Amounts become due and payable, and continuance of such default
for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any mandatory sinking fund payment,
when and as due by the terms of a Security of that series and continuance
of such default for a period of 30 days; or
(4) default in the performance or breach of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with or which has expressly been included in this
Indenture solely for the benefit of one or more series of Securities other
than that series), and continuance of such default or breach for a period
of 90 days after there has been given, by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal
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amount of all Outstanding Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the entry by a court having jurisdiction in the premises of (A)
a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or order
adjudging the Company a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable Federal
or State law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any
substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in effect
for a period of 90 consecutive days; or
(6) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it, of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the
consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial part
of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(7) any other Event of Default provided with respect to Securities
of that series.
Notwithstanding the foregoing provisions of this Section 501, if the
principal of (and premium, if any) or any interest on, or Additional Amounts
with respect to, any Security is payable in a currency or currencies (including
a composite currency) other than Dollars and such currency (or currencies) is
(or are) not available to the Company for making payment thereof due to the
imposition of exchange controls or other circumstances beyond the control of the
Company (a "Conversion Event"), the Company will be entitled to satisfy its
obligations to Holders of the Securities by making such payment in Dollars in an
amount equal to the Dollar equivalent of the amount payable in such other
currency, as determined by the Company by reference to the noon buying rate in
The City of New York for cable transfers for such currency ("Exchange Rate"), as
such Exchange Rate is certified for customs purposes by the Federal Reserve Bank
of New York on the date of such payment, or, if such rate is not then available,
on the basis of the most recently available Exchange Rate. Notwithstanding the
foregoing provisions of this Section 501, any payment made under such
circumstances in Dollars where the required payment is in a currency other than
Dollars will not constitute an Event of Default under this Indenture.
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Promptly after the occurrence of a Conversion Event with respect to
Securities of any series, the Company shall give written notice thereof to the
Trustee; and the Trustee, promptly after receipt of such notice, shall give
notice thereof in the manner provided in Section 107 to the Holders of such
series. Promptly after the making of any payment in Dollars as a result of a
Conversion Event with respect to Securities of any series, the Company shall
give notice in the manner provided in Section 107 to the Holders of such series,
setting forth the applicable Exchange Rate and describing the calculation of
such payments.
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to any Securities of any series
at the time Outstanding occurs and is continuing, then in every such case the
Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of (i) the series affected by such default (in the case
of an Event of Default described in clause (1), (2), (3) or (7) of Section 501)
or (ii) all series of Securities (subject to the immediately following sentence,
in the case of an Event of Default described in clause (4) of Section 501) may
declare the principal amount (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) of all of the Securities of the series affected by
such default or all series, as the case may be, to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders), and upon any such declaration such principal amount (or specified
amount) shall become immediately due and payable. If an Event of Default
described in clause (5) or (6) of Section 501 shall occur, the principal amount
of the Outstanding Securities of all series IPSO FACTO shall become and be
immediately due and payable without any declaration 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 (or of all series, as the case may be) 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 Outstanding Securities of that series (or of
all series, as the case may be), by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on, and any Additional Amounts with
respect to, all Securities of that series (or of all series, as the
case may be),
(B) the principal of (and premium, if any, on) any Securities
of that series (or of all series, as the case may be) which have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Securities (in the case of Original Issue Discount Securities, the
Securities' Yield to Maturity),
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(C) to the extent that payment of such interest is lawful,
interest upon overdue interest and any Additional Amounts at the
rate or rates prescribed therefor in such Securities (in the case of
Original Issue Discount Securities, the Securities' Yield to
Maturity), and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series
(or of all series, as the case may be), other than the non-payment of the
principal of Securities of that series (or of all series, as the case may
be) which have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 512.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any installment of interest
on, or any Additional Amounts with respect to, any Security of any series
when such interest or Additional Amounts shall have become due and payable
and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest and Additional
Amounts and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal (and premium, if any) and on any
overdue interest and Additional Amounts, at the rate or rates prescribed
therefor in such Securities (or in the case of Original Issue Discount
Securities, the Securities' Yield to Maturity), and, in addition thereto, such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon such Securities, wherever
situated.
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If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal (or lesser amount
in the case of Original Issue Discount Securities) of the Securities shall then
be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal (and premium, if any), interest or any
Additional Amounts) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (or
lesser amount in the case of Original Issue Discount Securities) (and
premium, if any) and interest and any Additional Amounts owing and unpaid
in respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, 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 it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any 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 proceedings; PROVIDED, HOWEVER,
that the Trustee may, on behalf of the Holders, vote for the election of a
trustee in bankruptcy or similar official.
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SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES
OR COUPONS.
All rights of action and claim under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without possession of
any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED.
Subject to Article Thirteen, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any), interest or any Additional Amounts,
upon presentation of the Securities, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on and any Additional
Amounts with respect to the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities for principal (and premium, if any), interest
and Additional Amounts, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
To the fullest extent allowed under applicable law, if for the
purpose of obtaining judgment against the Company in any court it is necessary
to convert the sum due in respect of the principal of (or premium, if any) or
interest on or any Additional Amounts with respect to the Securities of any
series (the "Required Currency") into a currency in which a judgment will be
rendered (the "Judgment Currency"), the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase
in The City of New York the Required Currency with the Judgment Currency on the
New York Business Day next preceding that on which final judgment is given.
Neither the Company nor the Trustee shall be liable for any shortfall nor shall
it benefit from any windfall in payments to Holders of Securities under this
Section caused by a change in exchange rates between the time the amount of a
judgment against it is calculated as above and the time the Trustee converts the
Judgment Currency into the Required Currency to make payments under this Section
to Holders of Securities, but payment of such judgment shall discharge all
amounts owed by the Company on the claim or claims underlying such judgment.
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SECTION 507. LIMITATION ON SUITS.
Subject to Section 508, no Holder of any Security of any series
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) an Event of Default with respect to Securities of such series
shall have occurred and be continuing and such Holder has previously given
written notice to the Trustee of such continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all of such
Holders.
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL PREMIUM AND
INTEREST.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on and any Additional Amounts with respect to such
Security on the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on the Redemption Date) and to institute suit for the
enforcement of any such payment, and such rights shall not be impaired or
affected without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of any Security has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, then and in every
such case the Company, the Trustee and the Holders shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
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SECTION 510. RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any
Securities to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders,
as the case may be.
SECTION 512. CONTROL BY HOLDERS.
With respect to Securities of any series, the Holders of a majority
in principal amount of the Outstanding Securities of such series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, relating to or arising under an Event of Default described in
clause (1), (2), (3) or (7) of Section 501, and with respect to all Securities
the Holders of a majority in principal amount of all Outstanding Securities
shall have the right to direct the time, method and place of conducting any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, not relating to or arising under such an Event of Default, PROVIDED
that in each such case
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. WAIVER OF PAST DEFAULTS.
The Holders of a majority in principal amount of the Outstanding
Securities of any series may on behalf of the Holders of all the Securities of
such series waive any past default hereunder with respect to such series and its
consequences, and the Holders of a majority in principal amount of all
Outstanding Securities may on behalf of the Holders of all Securities waive any
other past default hereunder and its consequences, except in each case a default
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(1) in the payment of the principal of (or premium, if any) or
interest on, or any Additional Amounts with respect to, any Security, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken or
omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees,
against any party litigant in such suit, having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on, or any Additional Amounts with respect to, any Security
on or after the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption, on or after the Redemption Date).
SECTION 515. WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of an Event of Default with
respect to the Securities of any series,
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(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, 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; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing with
respect to the Securities of any series, the Trustee shall exercise such
of the rights and powers vested in it by this Indenture, and use the same
degree of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, EXCEPT that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent
facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with
the direction of the Holders of a majority in principal amount of
the Outstanding Securities of any series or of all series,
determined as provided in Section 511, relating to the time, method
and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture with respect to the Securities of such
series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in
the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or
indemnity satisfactory to it against such risk or liability is not
assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section.
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SECTION 602. NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder with
respect to the Securities of any series, the Trustee shall give notice of such
default hereunder known to the Trustee to all Holders of Securities of such
series in the manner provided in Section 107, unless such default shall have
been cured or waived; PROVIDED, HOWEVER, that, except in the case of a default
in the payment of the principal of (or premium, if any) or interest on, or any
Additional Amounts with respect to, any Security of such series or in the
payment of any sinking fund installment with respect to Securities of such
series, the Trustee shall be protected in withholding such notice if and so long
as the board of directors, the executive committee or a trust committee of
directors or Responsible Officers of the Trustee in good faith determines that
the withholding of such notice is in the interest of the Holders of Securities
of such series; AND PROVIDED, FURTHER, that in the case of any default of the
character specified in Section 501(4) with respect to Securities of such series,
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. For the purpose of this Section, the term "default" means
any event, act or condition which is, or after notice or lapse of time or both
would become, an Event of Default with respect to Securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which might
be incurred by it in compliance with such request or direction;
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(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon, other evidence of indebtedness or other
paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and, except for any Affiliates of the Trustee, the Trustee shall
not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
SECTION 606. MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time compensation for all
services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the compensation and
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the reasonable expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(3) to indemnify the Trustee and each of its directors, officers,
employees, agents and/or representatives for, and to hold each of them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on each of their part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending themselves
against any claim or liability in connection with the exercise or
performance of any of the Trustee's powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of, premium, if any, or interest, if
any, on, or any Additional Amounts with respect to, particular Securities.
Any expenses and compensation for any services rendered by the
Trustee after the occurrence of an Event of Default specified in clause (5) or
(6) of Section 501 shall constitute expenses and compensation for services of
administration under all applicable federal or state bankruptcy, insolvency,
reorganization or other similar laws.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 608. DISQUALIFICATION; CONFLICTING INTERESTS.
(a) If the Trustee has or shall acquire any conflicting interest, as
defined in this Section, with respect to the Securities of any series, it
shall, within 90 days after ascertaining that it has such conflicting
interest, either eliminate such conflicting interest or resign with
respect to the Securities of that series in the manner and with the effect
hereinafter specified in this Article.
(b) In the event that the Trustee shall fail to comply with the
provisions of Subsection (a) of this Section with respect to the
Securities of any series, the Trustee shall, within 10 days after the
expiration of such 90-day period, transmit by mail to all Holders of
Securities of that series, as their names and addresses appear in the
Security Register, notice of such failure.
(c) For the purposes of this Section, the term "conflicting
interest" shall have the meaning specified in Section 310(b) of the Trust
Indenture Act and the Trustee shall comply with Section 310(b) of the
Trust Indenture Act; PROVIDED that there shall be excluded from the
operation of Section 310(b)(1) of the Trust Indenture Act with respect to
the Securities of any series any indenture or indentures under which other
securities, or certificates of interest or participation in other
securities, of the Company are outstanding, if the requirements for such
exclusion set forth in Section 310(b)(1) of the Trust Indenture Act are
met. For purposes of the preceding sentence, the optional provision
permitted by the second sentence of Section 310(b)(9) of the Trust
Indenture Act shall be applicable.
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SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000 and subject to supervision or examination by Federal or
State (or District of Columbia) authority. If such corporation publishes reports
of condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
The Indenture shall always have a Trustee who satisfies the
requirements of Sections 310(a)(1), 310(a)(2) and 310(a)(5) of the Trust
Indenture Act.
SECTION 610. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with
the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required
by Section 611 shall not have been delivered to the resigning Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608(a) after
written request therefor by the Company or by any Holder who has
been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609
and shall fail to resign after written request therefor by the
Company or by any such Holder of Securities, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or
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affairs for the purpose of rehabilitation, conservation or
liquidation, then, in any such case, (i) the Company by a Board
Resolution may remove the Trustee with respect to all Securities, or
(ii) subject to Section 513, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause, with respect to the Securities of one or more series, the Company,
by a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any
time there shall be only one Trustee with respect to the Securities of any
particular series) and such successor Trustee or Trustees shall comply
with the applicable requirements of Section 611. If no successor Trustee
with respect to the Securities of any series shall have been so appointed
by the Company and accepted appointment in the manner required by Section
611, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of
any series by mailing written notice of such event by first-class mail,
postage prepaid, to all Holders of Securities of such series as their
names and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee with respect to the Securities
of such series and the address of its Corporate Trust Office.
SECTION 611. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring
Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and
such successor Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the
retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute
and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held
by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and
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deliver an indenture supplemental hereto wherein each successor Trustee
shall accept such appointment and which (1) shall contain such provisions
as shall be necessary or desirable to transfer and confirm to, and to vest
in, each successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, (2) if
the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to
confirm that all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series as to which
the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee and (3) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart
from any trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture, the
resignation or removal of the retiring Trustee shall become effective to
the extent provided therein and each such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
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SECTION 613. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee shall comply with Section 311(a) of the Trust Indenture
Act, excluding any creditor relationship described in Section 311(b) of the
Trust Indenture Act. A Trustee who has resigned or been removed shall be subject
to Section 311(a) of the Trust Indenture Act to the extent indicated therein.
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents which
shall be authorized to act on behalf of the Trustee to authenticate Securities
issued upon original issue and upon exchange, registration of transfer or
partial redemption or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent. Each
Authenticating Agent shall be acceptable to the Company and shall at all times
be a corporation organized and doing business under the laws of the United
States of America, any State thereof or the District of Columbia having a
combined capital and surplus of not less than $50,000,000 or equivalent amount
expressed in a foreign currency and subject to supervision or examination by
Federal or State (or District of Columbia) authority or authority of such
country. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, such Authenticating Agent shall
resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
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Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the Securities
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
"This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[NAME OF TRUSTEE],
AS TRUSTEE
By______________________________________________,
AS AUTHENTICATING AGENT
By______________________________________________
"AUTHORIZED SIGNATORY"
Notwithstanding any provision of this Section 614 to the contrary,
if at any time any Authenticating Agent appointed hereunder with respect to any
series of Securities shall not also be acting as the Security Registrar
hereunder with respect to any series of Securities, then, in addition to all
other duties of an Authenticating Agent hereunder, such Authenticating Agent
shall also be obligated: (i) to furnish to the Security Registrar promptly all
information necessary to enable the Security Registrar to maintain at all times
an accurate and current Security Register; and (ii) prior to authenticating any
Security denominated in a foreign currency, to ascertain from the Company the
units of such foreign currency that are required to be determined by the Company
pursuant to Section 302.
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
With respect to each series of Securities, the Company will furnish
or cause to be furnished to the Trustee:
(a) semi-annually, not more than 15 days after each Regular Record
Date relating to that series (or, if there is no Regular Record Date
relating to that series, on January 1 and July 1), a list, in such form as
the Trustee may reasonably require, of the names and addresses of the
Holders of that series as of such dates, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a
list of similar form and content, such list to be dated as of a date not
more than 15 days prior to the time such list is furnished; PROVIDED, that
so long as the Trustee is the Security Registrar, the Company shall not be
required to furnish or cause to be furnished such a list to the Trustee.
The Company shall otherwise comply with Section 310(a) of the Trust
Indenture Act.
SECTION 702. PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders of each series
contained in the most recent list furnished to the Trustee as provided in
Section 701 and the names and addresses of Holders of each series received
by the Trustee in its capacity as Security Registrar, if applicable. The
Trustee may destroy any list furnished to it as provided in Section 701
upon receipt of a new list so furnished. The Trustee shall otherwise
comply with Section 310(a) of the Trust Indenture Act.
(b) Holders of Securities may communicate pursuant to Section 312(b)
the Trust Indenture Act with other Holders with respect to their rights
under this Indenture or under the Securities.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company, each Subsidiary Guarantor and the Trustee that
neither the Company, any Subsidiary Guarantor nor the Trustee nor any
agent of either of them shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Holders in accordance with Section 702(b), regardless of the source from
which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made
under Section 702(b). The Company, the Trustee, the Security Registrar and
any other Person shall have the protection of Section 312(c) of the Trust
Indenture Act.
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SECTION 703. REPORTS BY TRUSTEE.
(a) Within 60 days after May 15 of each year after the execution of
this Indenture, the Trustee shall transmit by mail to Holders a brief
report dated as of such May 15 that complies with Section 313(a) of the
Trust Indenture Act.
(b) The Trustee shall comply with Section 313(b) of the Trust
Indenture Act.
(c) Reports pursuant to this Section shall be transmitted by mail as
required by Sections 313(c) and 313(d) of the Trust Indenture Act:
(1) to all Holders of Securities, as the names and addresses
of such Holders appear in the Security Register;
(2) to such Holders of Securities as have, within the two
years preceding such transmissions, filed their names and addresses
with the Trustee for that purpose; and
(3) except in the case of reports pursuant to Subsection (b)
of this Section, to each Holder of a Security whose name and address
is preserved at the time by the Trustee, as provided in Section
702(a).
(d) A copy of each report pursuant to Subsection (a) or (b) of this
Section 703 shall, at the time of its transmission to Holders, be filed by
the Trustee with each stock exchange upon which any Securities are listed,
with the Commission and with the Company. The Company will notify the
Trustee when any Securities are listed on any stock exchange.
SECTION 704. REPORTS BY COMPANY.
The Company shall file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934, as amended, and shall otherwise comply with Section 314(a)
of the Trust Indenture Act.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, unless:
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(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer,
or which leases, the properties and assets of the Company substantially as
an entirety shall be a corporation, partnership or trust and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due and
punctual payment of the principal of (and premium, if any) and interest on
and any Additional Amounts with respect to all the Securities and the
performance of every covenant of this Indenture on the part of the Company
to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event, act or condition which, after notice or lapse of
time or both, would become an Event of Default, shall have happened and be
continuing; and
(3) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
SECTION 802. SUCCESSOR PERSON SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company
into any other Person or any conveyance, transfer or lease of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor Person formed by such consolidation or into which the Company
is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor Person
had been named as the Company herein, and thereafter, except in the case of such
lease, the predecessor Person shall be relieved of all obligations and covenants
under this Indenture and the Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders, the Company, when authorized by
a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory to
the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
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(2) 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), to convey, transfer, assign, mortgage or pledge any property to
or with the Trustee or otherwise secure any series of the Securities or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default with respect to all or
any series of the Securities (and, if such Event of Default is applicable
to less than all series of Securities, specifying the series to which such
Event of Default is applicable); or
(4) to change or eliminate any of the provisions of this Indenture,
PROVIDED that any such change or elimination shall become effective only
when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is adversely affected by
such change in or elimination of such provision; or
(5) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(6) 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 401; 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
(7) 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 611(b); or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, PROVIDED such other provisions as
may be made shall not adversely affect the interests of the Holders of
Securities of any series in any material respect; or
(9) to secure any Securities or any Subsidiary Guarantee pursuant to
the terms thereof; or
(10) to release a Subsidiary Guarantor from its obligations under
this Indenture and its Subsidiary Guarantee in accordance with the
provisions hereof and thereof.
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SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of a majority in principal amount of
the Outstanding Securities of all series affected by such supplemental indenture
(acting as one class), by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; PROVIDED, HOWEVER,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon, any Additional
Amounts with respect thereto or any premium payable upon the redemption
thereof, or change any obligation of the Company to pay Additional Amounts
(except as contemplated by Section 801(1) and permitted by Section
901(1)), 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 502, or change
any Place of Payment where, or the coin or currency or currencies
(including composite currencies) in which, any Security or any premium or
any interest thereon or Additional Amounts with respect thereto is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date) or modify the provisions of
this Indenture with respect to the subordination of any Security in a
manner adverse to the Holder thereof, or
(2) reduce the percentage in principal amount of Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 512 or
Section 1006, except to increase any such percentage or to provide with
respect to any particular series the right to condition the effectiveness
of any supplemental indenture as to that series on the consent of the
Holders of a specified percentage of the aggregate principal amount of
Outstanding Securities of such series (which provision may be made
pursuant to Section 301 without the consent of any Holder) or to provide
that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, PROVIDED, HOWEVER, that this clause shall not be deemed
to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1006, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(7).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
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It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties, immunities or liabilities under this Indenture or
otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any), interest on and any Additional Amounts with respect to the Securities
of that series in accordance with the terms of the Securities and this
Indenture.
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SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices and demands to or
upon the Company in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; 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 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on or any Additional Amounts with
respect to any of the Securities of that series, segregate and hold in trust for
the benefit of the Persons entitled thereto a sum sufficient to pay the
principal (and premium, if any) or interest or any Additional Amounts so
becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, the Company will, on or before each due date of the
principal of (and premium, if any) or interest on any Securities of that series,
deposit with a Paying Agent a sum sufficient to pay the principal (and premium,
if any) or interest so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of
Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to
the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal of
(and premium, if any), interest on or any Additional Amounts with respect
to Securities of that series in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
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(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of that series) in the making of any
payment of principal (and premium, if any), interest on or any Additional
Amounts with respect to the Securities of that series; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of (and premium,
if any) or interest on or any Additional Amounts with respect to any Security of
any series and remaining unclaimed for three years after such principal (and
premium, if any) or interest or Additional Amounts have become due and payable
shall, unless otherwise required by mandatory provisions of applicable escheat,
or abandoned or unclaimed property law, be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; PROVIDED, HOWEVER,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in an
Authorized Newspaper in The Borough of Manhattan, The City of New York and in
such other Authorized Newspapers as the Trustee shall deem appropriate, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will, unless otherwise required
by mandatory provisions of applicable escheat, or abandoned or unclaimed
property law, be repaid to the Company.
SECTION 1004. EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its corporate
existence.
SECTION 1005. STATEMENT BY OFFICERS AS TO DEFAULT.
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company ending after the date hereof so long as
any Security is outstanding hereunder, an Officers' Certificate, complying with
Section 314(a) of the Trust Indenture Act, stating that a review of the
activities of the Company during such year and of performance under this
Indenture has been made under the supervision of the signers thereof and whether
or not to the best of their
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knowledge, based upon such review, the Company is in default in the performance,
observance or fulfillment of any of its covenants and other obligations under
this Indenture, and if the Company shall be in default, specifying each such
default known to them and the nature and status thereof. One of the officers
signing the Officers' Certificate delivered pursuant to this Section 1005 shall
be the principal executive, financial or accounting officer of the Company.
For purposes of this Section, such compliance shall be determined
without regard to any period of grace or requirement of notice provided under
this Indenture.
SECTION 1006. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 1004, or any covenant added for the
benefit of any series of Securities as contemplated by Section 301 (unless
otherwise specified pursuant to Section 301) if before or after the time for
such compliance the Holders of a majority in principal amount of the Outstanding
Securities of all series affected by such omission (acting as one class) shall,
by Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such covenant or condition, but no such waiver
shall extend to or affect such covenant or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such covenant or
condition shall remain in full force and effect.
SECTION 1007. ADDITIONAL AMOUNTS.
If the Securities of a series expressly provide for the payment of
Additional Amounts, the Company will pay to the Holder of any Security of such
series Additional Amounts as expressly provided therein. Whenever in this
Indenture there is mentioned, in any context, the payment of the principal of or
any premium or interest on, or in respect of, any Security of any series or the
net proceeds received from the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided for in this Section 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 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.
If the Securities of a series provide for the payment of Additional
Amounts, at least 10 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 10 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
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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 1007.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
Unless otherwise provided with respect to the Securities of a series
as contemplated by Section 301, the election of the Company to redeem any
Securities shall be evidenced by a Board Resolution. In case of any redemption
at the election of the Company of less than all the Securities of any series,
the Company shall, a reasonable period prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior to
the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. SELECTION BY TRUSTEE 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, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series or of the principal amount
of global Securities of such series.
The Trustee shall promptly notify the Company and the Security
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.
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For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in
Section 107 to each Holder of Securities to be redeemed not less than 30 nor
more than 60 days prior to the Redemption
Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable,
that interest thereon will cease to accrue on and after said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price,
(6) that the redemption is for a sinking fund, if such is the case,
and
(7) the "CUSIP" number, if applicable.
A notice of redemption as contemplated by Section 107 need not identify
particular Securities to be redeemed. Notice of redemption of Securities to be
redeemed at the election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE.
On or before 10:00 a.m., Houston, Texas time, on any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, and any Additional Amounts with respect to, all the
Securities which are to be redeemed on that date.
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SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
(and any Additional Amounts) to the Redemption Date; PROVIDED, HOWEVER, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security or, in the case of Original Issue Discount Securities,
the Securities' Yield to Maturity.
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge, a new Security or Securities of the same series and
Stated Maturity, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
SECTION 1108. PURCHASE OF SECURITIES.
Unless otherwise specified as contemplated by Section 301, the
Company and any Affiliate of the Company may at any time purchase or otherwise
acquire Securities 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 and, upon such delivery,
the indebtedness represented thereby shall be deemed to be satisfied. Section
309 shall apply to all Securities so delivered.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". 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 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a series
(other than any previously called for redemption), and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; PROVIDED that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking payment shall be reduced
accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND.
Not less than 45 days prior (unless a shorter period shall be
satisfactory to the Trustee) to each sinking fund payment date for any series of
Securities, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivery of or by crediting Securities of that series pursuant to
Section 1202 and will also deliver to the Trustee any Securities to be so
delivered. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund
payment date in the manner specified in Section 1103 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 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
SUBORDINATION
SECTION 1301. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company and each Holder of a Security, by his acceptance
thereof, agree that (a) the payment of the principal of, premium (if any) and
interest on and any Additional Amounts with respect to each and all the
Securities and (b) any other payment in respect of the Securities, including on
account of the acquisition or redemption of Securities by the Company, is
subordinated, to the extent and in the manner provided in this Article Thirteen,
to the prior payment in full of all Senior Indebtedness of the Company, whether
outstanding at the date of this Indenture or thereafter created, incurred,
assumed or guaranteed, and that these subordination provisions are for the
benefit of the holders of Senior Indebtedness.
This Article Thirteen shall constitute a continuing offer to all
Persons who, in reliance upon such provisions, become holders of, or continue to
hold, Senior Indebtedness, and such provisions are made for the benefit of the
holders of Senior Indebtedness, and such holders are made obligees hereunder and
any one or more of them may enforce such provisions.
SECTION 1302. NO PAYMENT ON SECURITIES IN CERTAIN CIRCUMSTANCES.
(a) No payment shall be made by or on behalf of the Company on
account of the principal of, premium (if any) or interest on or any Additional
Amounts with respect to the Securities of any series or to acquire any of such
Securities (including any repurchases of such Securities pursuant to the
provisions hereof or thereof at the option of the Holder of such Securities) for
cash or property (other than Junior securities of the Company), or on account of
any redemption provisions of such Securities, in the event of default in payment
of any principal of, premium (if any) or interest on any Senior Indebtedness of
the Company when the same becomes due and payable, whether at maturity or at a
date fixed for prepayment or by declaration or otherwise (a "Payment Default"),
unless and until such Payment Default has been cured or waived or otherwise has
ceased to exist.
(b) No payment shall be made by or on behalf of the Company on
account of the principal of, premium (if any) or interest on or any Additional
Amounts with respect to the Securities of any series or to acquire any of such
Securities (including any repurchases of such Securities pursuant to the
provisions hereof or thereof at the option of the Holder of such Securities) for
cash or property (other than Junior securities of the Company), or on account of
any redemption provisions of such Securities, in the event of any event of
default (other than a Payment Default) with respect to any Designated Senior
Indebtedness permitting the holders of such Designated Senior Indebtedness (or a
trustee or other representative on behalf of the holders thereof) to declare
such Designated Senior Indebtedness due and payable prior to the date on which
it would otherwise have become due and payable, upon written notice thereof to
the Company and the Trustee by any holders of Designated Senior Indebtedness (or
a trustee or other representative on behalf of the holders thereof) (the
"Payment Notice"), unless and until such event of default shall have been cured
or waived or otherwise has ceased to exist; PROVIDED, that such payments may not
be prevented pursuant to this Section 1302(b) for more than 179 days after an
applicable Payment Notice has been received by the Trustee unless the Designated
Senior Indebtedness in respect of which such event of default exists has been
declared due and payable in its entirety, in which case no such payment may be
made until such acceleration has been rescinded or annulled or such Designated
Senior Indebtedness has been paid in full. No event of default that existed or
was continuing on the date of any Payment Notice (whether or not such event of
default is on the same issue of Designated Senior Indebtedness)
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may be made the basis for the giving of a second Payment Notice, and only one
such Payment Notice may be given in any 365-day period.
(c) In furtherance of the provisions of Section 1301, in the event
that, notwithstanding the foregoing provisions of this Section 1302, any payment
or distribution of assets of the Company (other than Junior securities of the
Company) shall be received by the Trustee or the Holders of Securities of any
series at a time when such payment or distribution was prohibited by the
provisions of this Section 1302, then, unless such payment or distribution is no
longer prohibited by this Section 1302, such payment or distribution (subject to
the provisions of Section 1307) shall be received and held in trust by the
Trustee or such Holder or Paying Agent for the benefit of the holders of Senior
Indebtedness of the Company, and shall be paid or delivered by the Trustee or
such Holders or such Paying Agent, as the case may be, to the holders of Senior
Indebtedness of the Company remaining unpaid or unprovided for or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
of the Company may have been issued, ratably, according to the aggregate amounts
remaining unpaid on account of such Senior Indebtedness of the Company held or
represented by each, for application to the payment of all Senior Indebtedness
in full after giving effect to all concurrent payments and distributions to or
for the holders of such Senior Indebtedness.
SECTION 1303. SECURITIES SUBORDINATED TO PRIOR PAYMENT OF ALL SENIOR
INDEBTEDNESS ON DISSOLUTION, LIQUIDATION OR REORGANIZATION.
Upon any distribution of assets of the Company or upon any
dissolution, winding up, total or partial liquidation or reorganization of the
Company, whether voluntary or involuntary, in bankruptcy, insolvency,
receivership or similar proceeding or upon assignment for the benefit of
creditors:
(a) the holders of all Senior Indebtedness of the Company shall
first be entitled to receive payments in full before the Holders of
Securities of any series are entitled to receive any payment on account of
the principal of, premium (if any) or interest on or any Additional
Amounts with respect to such Securities (other than Junior securities of
the Company);
(b) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities (other than Junior
securities of the Company), to which the Holders of Securities of any
series or the Trustee on behalf of such Holders would be entitled, except
for the provisions of this Article Thirteen, shall be paid by the
liquidating trustee or agent or other Person making such a payment or
distribution directly to the holders of such Senior Indebtedness or their
representative, ratably according to the respective amounts of Senior
Indebtedness held or represented by each, to the extent necessary to make
payment in full of all such Senior Indebtedness remaining unpaid after
giving effect to all concurrent payments and distributions to the holders
of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities (other than Junior securities of the
Company), shall be received by the Trustee or the Holders of Securities of
any series or any Paying Agent (or, if the Company or any Affiliate of the
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Company is acting as its own Paying Agent, money for any such payment or
distribution shall be segregated or held in trust) on account of the
principal of, premium (if any) or interest on or any Additional Amounts
with respect to the Securities of such series before all Senior
Indebtedness of the Company is paid in full, such payment or distribution
(subject to the provisions of Section 1307) shall be received and held in
trust by the Trustee or such Holder or Paying Agent for the benefit of the
holders of such Senior Indebtedness, or their respective representatives,
ratably according to the respective amounts of such Senior Indebtedness
held or represented by each, to the extent necessary to make payment as
provided herein of all such Senior Indebtedness remaining unpaid after
giving effect to all concurrent payments and distributions and all
provisions therefor to or for the holders of such Senior Indebtedness, but
only to the extent that as to any holder of such Senior Indebtedness, as
promptly as practical following notice from the Trustee to the holders of
such Senior Indebtedness that such prohibited payment has been received by
the Trustee, Holder(s) or Paying Agent (or has been segregated as provided
above), such holder (or a representative therefor) notifies the Trustee of
the amounts then due and owing on such Senior Indebtedness, if any, held
by such holder and only the amounts specified in such notices to the
Trustee shall be paid to the holders of such Senior Indebtedness.
SECTION 1304. SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness of the
Company as provided herein, the Holders of the Securities shall be subrogated
(to the extent of the payments or distributions made to the holders of such
Senior Indebtedness pursuant to the provisions of this Article) to the rights of
the holders of such Senior Indebtedness to receive payments or distributions of
assets of the Company applicable to the Senior Indebtedness until all amounts
owing on the Securities shall be paid in full. For the purpose of such
subrogation, no such payments or distributions to the holders of such Senior
Indebtedness by the Company, or by or on behalf of the Holders of the Securities
by virtue of this Article Thirteen, which otherwise would have been made to such
Holders shall, as between the Company and such Holders, be deemed to be payment
by the Company or on account of such Senior Indebtedness, it being understood
that the provisions of this Article Thirteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities, on the
one hand, and the holders of such Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders of the
Securities would otherwise have been entitled but for the provisions of this
Article Thirteen shall have been applied, pursuant to the provisions of this
Article Thirteen, to the payment of amounts payable under Senior Indebtedness of
the Company, then such Holders shall be entitled to receive from the holders of
such Senior Indebtedness any payments or distributions received by such holders
of Senior Indebtedness in excess of the amount sufficient to pay all amounts
payable under or in respect of such Senior Indebtedness in full.
SECTION 1305. OBLIGATIONS OF THE COMPANY UNCONDITIONAL.
Nothing contained in this Article Thirteen or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
Company and the Holders of the Securities
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of any series, the obligation of the Company, which is absolute and
unconditional, to pay to such Holders the principal of, premium (if any) and
interest on and any Additional Amounts with respect to the Securities of such
series as and when the same shall become due and payable in accordance with
their terms, or is intended to or shall affect the relative rights of such
Holders and creditors of the Company other than the holders of the Senior
Indebtedness, nor shall anything herein or therein prevent the Trustee or any
Holder from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture, subject to the rights, if any, under this Article
Thirteen, of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
Notwithstanding anything to the contrary in this Article Thirteen or elsewhere
in this Indenture or in the Securities, upon any distribution of assets of the
Company referred to in this Article Thirteen, the Trustee, subject to the
provisions of Sections 601 and 603, and the Holders of the Securities shall be
entitled to rely upon any order or decree made by any court of competent
jurisdiction in which such dissolution, winding up, liquidation or
reorganization proceedings are pending, or a certificate of the liquidating
trustee or agent or other Person making any distribution to the Trustee or to
such Holders for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Indebtedness and other
Indebtedness of the Company, the amount thereof or payable thereon, the amount
or amounts paid or distributed thereon and all other facts pertinent thereto or
to this Article Thirteen so long as such court has been apprised of the
provisions of, or the order, decree or certificate makes reference to, the
provisions of this Article Thirteen.
SECTION 1306. TRUSTEE ENTITLED TO ASSUME PAYMENTS NOT PROHIBITED IN ABSENCE
OF NOTICE.
The Trustee shall not at any time be charged with knowledge of the
existence of any facts that would prohibit the making of any payment to or by
the Trustee unless and until a Responsible Officer of the Trustee or any Paying
Agent shall have received, no later than two Business Days prior to such
payment, written notice thereof from the Company or from one or more holders of
Senior Indebtedness or from any representative therefor and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Sections 601 and 603, shall be entitled in all respects conclusively to assume
that no such fact exists.
SECTION 1307. APPLICATION BY TRUSTEE OF AMOUNTS DEPOSITED WITH IT.
Amounts deposited in trust with the Trustee pursuant to and in
accordance with Article Four shall be for the sole benefit of Holders of the
Securities of series for the benefit of which such amounts were deposited, and,
to the extent allocated for the payment of Securities of such series, shall not
be subject to the subordination provisions of this Article Thirteen. Otherwise,
any deposit of assets with the Trustee or the Paying Agent (whether or not in
trust) for the payment of principal of, premium (if any) or interest on or any
Additional Amounts with respect to any Securities shall be subject to the
provisions of Sections 1301, 1302, 1303 and 1304; PROVIDED that if prior to two
Business Days preceding the date on which by the terms of this Indenture any
such assets may become distributable for any purpose (including without
limitation, the payment of either principal of, premium (if any) or interest on
or any Additional Amounts with respect to any Security), the Trustee or such
Paying Agent shall not have received with respect to such assets the written
notice provided for in Section 1306, then the Trustee or such Paying Agent shall
have full power and authority to receive such assets and to apply the same to
the purpose for which they were
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received, and shall not be affected by any notice to the contrary that may be
received by it on or after such date; and PROVIDED FURTHER that nothing
contained in this Article Thirteen shall prevent the Company from making, or the
Trustee from receiving or applying, any payment in connection with the
redemption of Securities if the first publication of notice of such redemption
(whether by mail or otherwise in accordance with this Indenture) has been made,
and the Trustee has received such payment from the Company, prior to the
occurrence of any of the contingencies specified in Section 1302 or 1303.
SECTION 1308. SUBORDINATION RIGHTS NOT IMPAIRED BY ACTS OR OMISSIONS OF THE
COMPANY OR HOLDERS OF SENIOR INDEBTEDNESS.
No right of any present or future holders of any Senior Indebtedness
to enforce subordination provisions contained in this Article Thirteen shall at
any time in any way be prejudiced or impaired by any act or failure to act on
the part of the Company or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms of this
Indenture, regardless of any knowledge thereof that any such holder may have or
be otherwise charged with. The holders of Senior Indebtedness may extend, renew,
modify or amend the terms of the Senior Indebtedness or any security therefor
and release, sell or exchange such security and otherwise deal freely with the
Company, all without affecting the liabilities and obligations of the parties to
this Indenture or the Holders of the Securities.
SECTION 1309. TRUSTEE TO EFFECTUATE SUBORDINATION OF SECURITIES.
Each Holder of a Security by his acceptance thereof authorizes and
expressly directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provisions contained in
this Article Thirteen and to protect the rights of the Holders of the Securities
pursuant to this Indenture, and appoints the Trustee his attorney-in-fact for
such purpose, including, in the event of any dissolution, winding up,
liquidation or reorganization of the Company (whether in bankruptcy, insolvency
or receivership proceedings or upon an assignment for the benefit of creditors
of the Company), the filing of a claim for the unpaid balance of his Securities
in the form required in said proceedings and cause said claim to be approved. If
the Trustee does not file a proper claim or proof of debt in the form required
in such proceeding prior to 30 days before the expiration of the time to file
such claim or claims, then the holders of the Senior Indebtedness or their
representative are hereby authorized to have the right to file and are hereby
authorized to file an appropriate claim for and on behalf of the Holders of said
Securities. Nothing herein contained shall be deemed to authorize the Trustee or
the holders of Senior Indebtedness or their representative to authorize or
consent to or accept or adopt on behalf of any Holder of Securities any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee or the holders
of Senior Indebtedness or their representative to vote in respect of the claim
of any Holder of the Securities in any such proceeding.
SECTION 1310. RIGHT OF TRUSTEE TO HOLD SENIOR INDEBTEDNESS.
The Trustee in its individual capacity shall be entitled to all of
the rights set forth in this Article Thirteen in respect of any Senior
Indebtedness at any time held by it to the same extent
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as any other holder of Senior Indebtedness, and nothing in this Indenture shall
be construed to deprive the Trustee of any of its rights as such holder.
SECTION 1311. ARTICLE THIRTEEN NOT TO PREVENT EVENTS OF DEFAULT.
The failure to make a payment on account of principal of or premium
(if any) or interest on or any Additional Amounts with respect to the Securities
by reason of any provision of this Article Thirteen shall not be construed as
preventing the occurrence of a Default or an Event of Default under Section 501
or in any way prevent the Holders of the Securities from exercising any right
hereunder other than the right to receive payment on the Securities.
SECTION 1312. NO FIDUCIARY DUTY OF TRUSTEE TO HOLDERS OF SENIOR
INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any such holders
(other than for its willful misconduct or negligence) if it shall in good faith
mistakenly pay over or distribute to the Holders of the Securities or the
Company or any other Person, cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article Thirteen or
otherwise. Nothing in this Section 1312 shall affect the obligation of any other
such Person to hold such payment for the benefit of, and to pay such payment
over to, the holders of Senior Indebtedness or their representative.
SECTION 1313. ARTICLE APPLICABLE TO PAYING AGENT.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article Thirteen shall in such case (unless the
context shall otherwise require) be construed as extending to and including such
Paying Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; PROVIDED, HOWEVER, that this Section 1313 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as Paying
Agent.
SECTION 1314. SUBORDINATION OF SUBSIDIARY GUARANTEES.
The obligations of each Subsidiary Guarantor under any Subsidiary
Guarantee relating to a series of Securities issued pursuant to this Indenture
shall be subordinated to the Senior Indebtedness of such Subsidiary Guarantor to
the same extent and in the same manner as the Securities of such series are
subordinated to Senior Indebtedness of the Company, or, if so provided in a
Board Resolution, Officers' Certificate or executed supplemental indenture
referred to in Sections 201 and 301 by or pursuant to which the form and terms
of the Securities of such series and the related Subsidiary Guarantees were
established, as and to the extent provided by the terms thereof, and each Holder
of Securities of each series, by his acceptance thereof, likewise covenants and
agrees to the subordination herein or therein provided and shall be bound by the
provisions hereof or thereof. For the purposes of the foregoing sentence, the
Trustee and the holders of Securities shall have the right to receive or retain
payments by any of the Subsidiary Guarantors only at such times as they may
receive or retain payments in respect of the Securities pursuant to this
Indenture.
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ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities of any or all series may be
called at any time and from time to time pursuant to this Article to make, give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be made, given or taken by Holders
of Securities of such series.
SECTION 1402. CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1401, to be held
at such time and at such place in Houston, Texas, in New York, New York, in
London, England, or in any other location, as the Trustee shall determine.
Notice of every meeting of Holders of Securities of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the manner provided in Section
107, not less than 20 nor more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in aggregate principal amount of the Outstanding
Securities of any series, shall have requested the Trustee for any such series
to call a meeting of the Holders of Securities of such series for any purpose
specified in Section 1401, by written request setting forth in reasonable detail
the action proposed to be taken at the meeting, and the Trustee shall not have
made the first publication of the notice of such meeting within 30 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine the
time and the place in Houston, Texas, in New York, New York, in London, England,
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in Subsection (a) of this Section.
SECTION 1403. PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities of
any series, a Person shall be (1) a Holder of one or more Outstanding Securities
of such series, or (2) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
67
<PAGE>
SECTION 1404. QUORUM; ACTION.
The Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities of such series, be
dissolved. In any other case, the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Subject to Section 1405(d), notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1402(a), except that such notice need be given only once not less than five days
prior to the date on which the meeting is scheduled to be reconvened. Notice of
the reconvening of an adjourned meeting shall state expressly that Persons
entitled to vote a majority in principal amount of the Outstanding Securities of
such series shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in aggregate principal amount of the Outstanding Securities of that
series; PROVIDED, HOWEVER, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent or waiver which this Indenture expressly provides may
be made, given or taken by the Holders of a specified percentage that is less
than a majority in aggregate principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of such specified percentage in aggregate principal amount of the Outstanding
Securities of that series.
Except as limited by the proviso to Section 902, any resolution
passed or decision taken at any meeting of Holders of Securities of any series
duly held in accordance with this Section shall be binding on all the Holders of
Securities of such series, whether or not present or represented at the meeting.
SECTION 1405. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) The holding of Securities shall be proved in the manner
specified in Section 105 and the appointment of any proxy shall be proved
in the manner specified in Section 105. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 105 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Holders of Securities as provided in Section
1402(b), in which case the Company or the Holders of Securities of the
series calling the meeting, as the case may be, shall appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in
aggregate principal amount of the Outstanding Securities of such series
represented at the meeting.
68
<PAGE>
(c) At any meeting each Holder of a Security of such series and each
proxy shall be entitled to one vote for each $1,000 principal amount of
the Outstanding Securities of such series held or represented by him;
PROVIDED, HOWEVER, that no vote shall be cast or counted at any meeting in
respect of any Security challenged as not Outstanding and ruled by the
chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote, except as a Holder of a Security of such
series or as a proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1402 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities of such series represented
at the meeting; and the meeting may be held as so adjourned without
further notice.
SECTION 1406. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to such record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that such notice was given as provided in Section 1402 and, if
applicable, Section 1404. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
* * *
This instrument may be executed in any number of counterparts, each
of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
69
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
MIDCOAST ENERGY RESOURCES. INC.
By___________________________________________
Name:
Title:
____________________________________, Trustee
By___________________________________________
Name:
Title:
SUBSIDIARY GUARANTORS:
MAGNOLIA RESOURCES, INC.
By___________________________________________
Name:
Title:
70
<PAGE>
MAGNOLIA GATHERING, INC.
By___________________________________________
Name:
Title:
MIDCOAST INTERSTATE TRANSMISSION, INC.
By___________________________________________
Name:
Title:
TENNESSEE RIVER INTRASTATE GAS COMPANY,
INC.
By___________________________________________
Name:
Title:
71
EXHIBIT 5.1
[Porter & Hedges, L.L.P. Letterhead]
January 8, 1999
Securities and Exchange Commission
450 Fifth Street
Judiciary Plaza
Washington D.C. 20549
Re: Midcoast Energy Resources, Inc. -- Registration Statement on Form
S-3
Gentlemen:
We have acted as counsel to Midcoast Energy Resources, Inc., a Nevada
corporation (the "Company"), in connection with the registration on Form S-3 of
the Securities Act of 1933, as amended, of up to $200,000,000 aggregate amount
of (i) shares of common stock, par value $.01 per share ("Common Stock"), (ii)
shares of preferred stock, in one or more series, as may be designated by the
Board of Directors of the Company ("Preferred Stock"), (iii) debt securities, in
one or more series, consisting of notes, debentures or other evidences of
indebtedness ("Debt Securities"), payments of which shall be guaranteed by any
or all of the Company's subsidiaries (the "Guarantees") and (iv) warrants to
purchase Common Stock, Preferred Stock and Debt Securities ("Warrants")
(collectively, the Common Stock, Preferred Stock, Debt Securities and Warrants,
hereinafter referred to as the "Securities"). In rendering the opinions set
forth below, we have examined the Articles of Incorporation, as amended, bylaws
and corporate proceedings of the Company, and have made such other examinations
as we have deemed necessary and, based upon such examination and having regard
for applicable legal principles, it is our opinion that:
(i) the shares of Common Stock, when the terms of the issuance and sale
thereof have been duly approved by the Board of Directors of the Company in
conformity with the Company's Articles of Incorporation, as amended, and when
issued and delivered against payment therefor for an amount in excess of the par
value thereof, and, if issued upon the exercise or conversion of any Warrants or
Debt Securities, issued and delivered as contemplated by the terms thereof and
of any Warrant Agreement or the applicable Indenture, respectively, relating
thereto, will be validly issued, fully paid and non-assessable;
(ii) upon the fixing of the designations, relative rights, preferences and
limitations of any series of Preferred Stock by the Board of Directors of the
Company in conformity with the Private Corporation Law of Nevada and the
Articles of Incorporation, as amended, of the Company and upon the approval by
the Board of Directors of the Company of the specific terms of the issuance, all
necessary corporate action on the part of the Company will have been taken to
authorize the
<PAGE>
Securities and Exchange Commission
January 8, 1999
Page 2
issuance and sale of such series of Preferred Stock proposed to be sold by the
Company, and when such shares of Preferred Stock are issued and delivered
against payment therefor for an amount in excess of the par value thereof, and,
if issued upon the exercise or conversion of any Warrants or Debt Securities,
issued and delivered as contemplated by the terms thereof and of any Warrant
Agreement or the applicable Indenture, respectively, relating thereto, such
shares will be validly issued, fully paid and non-assessable;
(iii) assuming the Senior Indenture is duly executed and delivered by the
Company and duly authorized, executed and delivered by the Trustee, when the
terms of the senior Company Debt Securities and their issue and sale have been
duly established in conformity with the Senior Indenture so as not to violate
any applicable law or agreement or instrument then binding on the Company, the
senior Company Debt Securities have been duly executed and authenticated in
accordance with the terms of the Senior Indenture and issued and sold as
contemplated in the Registration Statement, and, if issued upon the exercise or
conversion of any Warrants, issued and delivered as contemplated by the terms
thereof and of any Warrant Agreement relating thereto, the senior Company Debt
Securities will constitute valid and binding obligations of the Company, subject
to (i) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium
or other laws now or hereafter in effect affecting creditors' rights generally
and (ii) general principles of equity (including, without limitation, standards
of materiality, good faith, fair dealing and reasonableness), whether considered
in a proceeding in equity or at law;
(iv) assuming the Subordinated Indenture is duly executed and delivered by
the Company and duly authorized, executed and delivered by the Trustee, when the
terms of the subordinated Company Debt Securities and their issue and sale have
been duly established in conformity with the Subordinated Indenture so as not to
violate any applicable law or agreement or instrument then binding on the
Company, the subordinated Company Debt Securities have been duly executed and
authenticated in accordance with the terms of the Subordinated Indenture and
issued and sold as contemplated in the Registration Statement, and, if issued
upon the exercise or conversion of any Warrants, issued and delivered as
contemplated by the terms thereof and of any Warrant Agreement relating thereto,
the subordinated Company Debt Securities will constitute valid and binding
obligations of the Company, subject to (i) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other laws now or hereafter
in effect affecting creditors' rights generally and (ii) general principles of
equity (including, without limitation, standards of materiality, good faith,
fair dealing and reasonableness), whether considered in a proceeding in equity
or at law; and
(v) when the issuance, execution and delivery by the Company of any of the
Warrants shall have been duly authorized by all necessary corporate action of
the Company, the Warrant Agreement relating thereto shall have been executed and
delivered by the respective parties thereto
<PAGE>
Securities and Exchange Commission
January 8, 1999
Page 3
and such Warrants shall have been duly executed and delivered by the Company,
countersigned by the Warrant Agent relating thereto and sold as contemplated by
the Registration Statement and the Warrant Agreement relating thereto, assuming
that the terms of such Warrants are in compliance with then applicable law, such
Warrants will be validly issued and will be enforceable against the Company in
accordance with their terms, subject to (i) bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or other laws now or hereafter
in effect affecting creditors' rights generally and (ii) general principles of
equity (including, without limitation, standards of materiality, good faith,
fair dealing and reasonableness), whether considered in a proceeding in equity
or at law.
The foregoing opinions are subject to the following additional conditions:
(a) the due authorization, execution and delivery by the Company, and by each
counterparty thereto, of (x) each applicable Indenture (including any necessary
supplemented indenture or additional corporate proceedings) relating to such of
the Securities as are evidences of indebtedness that are offered and sold (or
which may become issuable upon the conversion, exchange or exercise of any
convertible, exchangeable or exercisable Securities) and (y) each applicable
Warrant Agreement (including any necessary warrant agreement supplement or
additional corporate proceedings) relating to such of the Securities as are
warrants that are offered and sold (or which may become issuable upon the
conversion, exchange or exercise of any convertible, exchangeable or exercisable
Securities), (b) with respect to such of the Securities as are Preferred Stock,
the due designation of an applicable series within that class and the due
authorization for issuance of such number of shares of Preferred Stock within
the series that are offered and sold (or the reservation of such shares as may
become issuable upon the conversion, exchange or exercise of any convertible,
exchangeable or exercisable Securities), and (c) with respect to such of the
Securities as are Common Stock, the due authorization for issuance of such
number of shares of Common Stock that are offered and sold (or the reservation
of such shares as may become issuable upon the conversion, exchange or exercise
of any convertible, exchangeable or exercisable Securities).
We have been furnished with originals of certificates or other
represenatations of public officials, and have made such inquiry to officers and
representatives of the Company as we have deemed necessary as a basis for the
opinions herein expressed. As to questions of fact material to this opinion, we
have, to the extent we deemed appropriate and when relevant facts were not
independently established, relied upon certificates of executive officers and
other representatives of the Company.
We express no opinion as to the legality, validity, binding effect or
enforceability of any provision of the Debt Securities, the Indentures or the
Guarantees providing for payments thereunder in a currency other than currency
of the United States of America to the extent that a court of competent
jurisdiction will under applicable law convert any judgment rendered in such
other currency into currency of the United States of America or to the extent
that payment in a currency other than currency of the United States of America
is contrary to applicable law.
We are admitted to practice only in the State of Texas and our opinions
expressed herein are limited in all respects to the laws of the State of Texas
and federal laws of the United States of America. As to matters of Nevada law,
we have relied solely upon, the opinion of Woodburn and Wedge. We assume that
the Senior and Subordinated Indentures will be governed by the laws of the State
of New York. While we express no opinion with respect to the laws of the State
of New
<PAGE>
Securities and Exchange Commission
January 8, 1999
Page 4
York, we have assumed, without any independent investigation, that the
applicable internal laws of the State of New York are the same as the applicable
internal laws of the State of Texas.
The opinions stated herein are as of the date hereof and are limited to
laws, facts and circumstances in existence on the date hereof, and we assume no
undertaking to advise you of any change in the opinions expressed herein,
whether or not material, as a result of any change in the laws, facts or
circumstances pertaining to this Registration Statement that may come to our
attention after the date hereof.
We hereby consent to the use of our name in the Registration Statement and
the related prospectus wherever contained therein and we also consent to the
filing of this opinion as an exhibit to the Registration Statement.
Very truly yours,
/S/ PORTER & HEDGES, L.L.P.
PORTER & HEDGES, L.L.P.
EXHIBIT 12.1
MIDCOAST ENERGY RESOURCES, INC.
COMPUTATION OF RATIO OF EARNINGS TO
FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
<TABLE>
<CAPTION>
NINE MONTHS
ENDED
SEPTEMBER 30, YEAR ENDED DECEMBER 31,
------------- ----------------------------------------------------------------
1998 1997 1996 1995 1994 1993
------------- ------------ ------------ ------------ ---------- ----------
<S> <C> <C> <C> <C> <C> <C>
Pre-tax income from continuing
operations............................ $ 7,316,000 $ 5,914,451 $ 1,914,089 $ 2,193,401 $ 147,725 $ 817,799
Add:
Interest expense................... 2,043,000 1,066,738 412,629 339,324 188,623 177,566
Amortized debt expense............. 58,957 78,495 3,553 -- -- --
Interest portion of rent expense(s)..... 60,685 39,333 24,233 16,867 16,834 15,124
------------- ------------ ------------ ------------ ---------- ----------
Income as adjusted...................... 9,478,642 7,099,017 2,354,504 2,549,592 353,182 1,010,489
============= ============ ============ ============ ========== ==========
Fixed Charges:
Interest expense................... 2,043,000 1,066,738 412,629 339,324 188,623 177,566
Capitalized interest............... 66,261 -- -- -- -- --
Amortized debt expense............. 58,957 78,495 3,553 -- -- --
Interest portion of rent
expense(a)....................... 60,685 39,333 24,233 16,867 16,834 15,124
------------- ------------ ------------ ------------ ---------- ----------
Total fixed charges..................... 2,228,903 1,184,566 440,415 356,191 205,457 192,690
------------- ------------ ------------ ------------ ---------- ----------
Ratio of earnings to fixed charges...... 4.25 5.99 5.35 7.16 1.72 5.24
============= ============ ============ ============ ========== ==========
Fixed charges........................... 2,228,903 1,184,566 440,415 356,191 205,457 192,690
Preferred dividend requirement (b)...... -- -- 22,863 59,183 59,183 59,183
------------- ------------ ------------ ------------ ---------- ----------
Total fixed charges and preferred
dividend requirement.................. 2,228,903 1,184,566 463,278 415,374 264,640 251,873
============= ============ ============ ============ ========== ==========
Ratio if calculated with preferred stock
dividend requirement.................. 4.25 5.99 5.08 6.14 1.33 4.01
============= ============ ============ ============ ========== ==========
</TABLE>
- ------------
(a) The portion of rent included in the calculation is believed to be a
reasonable approximation of the interest factor.
(b) Preferred dividends are not shown on a pre-tax basis due to the Company's
utilization of net operating loss carryforwards which lowered the Company's
effective tax rate to zero in the applicable years when preferred dividends
were paid.
EXHIBIT 21.1
SUBSIDIARIES OF MIDCOAST ENERGY RESOURCES, INC.
STATE OF YEAR OF INTEREST
SUBSIDIARIES INCORPORATION INCORPORATION ONWERSHIP
- ----------------------------------- -------------- ------------- ---------
Arcadia/Midcoast Pipeline
of New York L.L.C.*.............. New York 1996 50%
H&W Pipeline Corporation*.......... Alabama 1976 100%
Magnolia Pipeline Corporation...... Alabama 1989 100%
Magnolia Gathering, Inc. .......... Alabama 1996 100%
Magnolia Resources Inc. ........... Mississippi 1996 100%
Midcoast Marketing, Inc............ Texas 1991 100%
Midcoast Holdings No. One, Inc..... Delaware 1993 100%
Midcoast Gas Pipeline, Inc......... Texas 1997 100%
Nugget Drilling Corporation*....... Minnesota 1982 100%
Pan Grande Pipeline, L.L.C......... Texas 1996 70%
Starr County Gathering System, A
Joint Venture.................... Texas 1996 60%
Midcoast Interstate Transmission,
Inc. ............................ Alabama 1966 100%
Tennessee River Intrastate Gas
Company, Inc. ................... Alabama 1986 100%
Mid Louisiana Gas Transmission
Company.......................... Delaware 1987 100%
Mid Louisiana Gas Company.......... Delaware 1963 100%
Texana Pipeline Company............ Texas 1997 50%
Midcoast Gas Pipeline Inc.......... Delaware 1998 100%
Midcoast Energy Marketing, Inc..... Delaware 1998 100%
Midcoast Del Bajio S. de R.L.
de C.V............................ Mexico 1998 50%
Creole Gas Pipeline Corporation.... Louisiana 1998 100%
Midcoast Gas Services, Inc. ....... Delaware 1998 100%
- ------------
* Presently Inactive
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the use of our reports on the consolidated financial
statements of Midcoast Energy Resources, Inc. as of December 31, 1997 and 1996,
and for each of the years in the three-year period ended December 31, 1997,
dated February 27, 1998, incorporated by reference, in this Registration
Statement on Form S-3 and to the reference to our Firm under the heading
Experts. We also consent to the use of our reports on the financial statements
of the AlaTenn Subsidiaries as of December 31, 1996 and 1995, and for each of
the years in the three-year period ended December 31, 1996, dated May 9, 1997,
the consolidated financial statements of Republic Gas Partners, L.L.C. as of
September 30, 1997 and December 31, 1995, and for the 21-month period ended
September 30, 1997, dated January 7, 1998, the historical summary of revenue and
direct operating expenses of the KOCH Hydrocarbon Company -- Harmony Gas
Processing Plant for the year ended December 31, 1995, dated November 8, 1996,
and the historical summary of revenue and direct operating expenses of the
Anadarko Gas Gathering System of El Paso Field Services Company, a business unit
of El Paso Energy Corporation, for the year ended July 31, 1998, dated October
20, 1998, incorporated by reference, in this Registration Statement on Form S-3.
/s/ Hein + Associates LLP
Hein + Associates LLP
Houston, Texas
January 8, 1999
