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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 10, 1999
REGISTRATION NO. 333-____________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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GREY WOLF, INC.
(Exact name of registrant as specified in its charter)
TEXAS 74-2144774
(STATE OF JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
10370 RICHMOND AVENUE, SUITE 600
HOUSTON, TEXAS 77042-4136
(713) 435-6100
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE
NUMBER, INCLUDING AREA CODE, OF REGISTRANTS
PRINCIPAL EXECUTIVE OFFICES)
---------------------------
DAVID W. WEHLMANN
SENIOR VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
10370 RICHMOND AVENUE, SUITE 600
HOUSTON, TEXAS 77042-4136
(713) 435-6100
FAX: (713) 435-6171
(NAME, ADDRESS, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT FOR SERVICE)
---------------------------
COPY TO:
NICK D. NICHOLAS
PORTER & HEDGES, L.L.P.
700 LOUISIANA, SUITE 3500
HOUSTON, TEXAS 77002
(713) 226-0600
FAX: (713) 226-0237
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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. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED AMOUNT OF
TITLE OF EACH CLASS OF MAXIMUM AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED (1) OFFERING PRICE (2) FEE
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<S> <C> <C>
Common Stock, par value $0.10 per share (3) ................................
Preferred Stock, par value $1.00 per share..................................
Depository Shares (4)....................................................... (6)
Debt Securities (5).........................................................
Warrants....................................................................
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Total.............................................................. $200,000,000 $ 55,600
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</TABLE>
(1) The securities registered consist of $200,000,000 of an indeterminate
number of amount of Common Stock, Preferred Stock, Depositary Shares,
Warrants, and Debt Securities, as may be issued from time-to-time at
indeterminate prices. This registration statement also covers an
indeterminate amount of securities as may be issued in exchange for, or
upon conversion or exercise of, as the case may be, the Preferred Stock,
Debt Securities, Warrants or Depository Shares registered hereunder.
(2) The proposed maximum aggregate offering price has been estimated solely for
the purpose of calculating the registration fee pursuant to Rule 457(o)
under the Securities Act of 1933.
(3) Includes with respect to each share of Common Stock Rights to Purchase
Junior Participating Preferred Stock, $1.00 par value per share.
(4) Such indeterminate number of Depositary Shares to be evidenced by
Depositary Receipts issued pursuant to a deposit agreement. In the event
that the registrant elects to offer to the public fractional interests in
shares of Preferred Stock registered hereunder, Depositary Receipts will be
distributed to those purchasing the fractional interests and the shares of
Preferred Stock will be issued to the depositary under the deposit
agreement.
(5) If any Debt Securities are issued at an original issue discount, then the
offering price of the Debt Securities shall be in such amount as shall
result in an aggregate initial offering price not to exceed $200,000,000
less the offering price of any securities previously issued hereunder.
(6) Not applicable pursuant to General Instruction II. D. of Form S-3.
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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.
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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.
SUBJECT TO COMPLETION, DATED SEPTEMBER 10, 1999
PROSPECTUS
[LOGO]
$200,000,000
GREY WOLF, INC.
COMMON STOCK
PREFERRED STOCK
DEPOSITARY SHARES
DEBT SECURITIES
WARRANTS
---------------------------
We may offer and sell from time to time in one or more classes or
series:
o common stock;
o preferred stock;
o depositary shares relating to our preferred stock;
o debt securities; and
o warrants to purchase debt securities, common stock or preferred
stock.
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
offerings.
We will provide the specific terms of the securities in supplements to
this prospectus. You should read this prospectus and the prospectus supplements
carefully before you invest in any of our securities. This prospectus may not be
used to consummate sales of our securities unless it is accompanied by a
prospectus supplement.
Our common stock trades on the American Stock Exchange under the
symbol "GW."
BEFORE INVESTING IN OUR SECURITIES, YOU SHOULD REVIEW THE RISK FACTORS
BEGINNING ON PAGE 3 IN THIS PROSPECTUS TO UNDERSTAND THE RISKS THAT MAY BE
ASSOCIATED WITH PURCHASING OUR SECURITIES.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the securities to be issued under this
prospectus or determined that this prospectus is truthful or complete. Any
representation to the contrary is a criminal offense.
This prospectus is dated September __, 1999
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TABLE OF CONTENTS
<TABLE>
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SECTION PAGE
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About this Prospectus.............................................................................................1
Where You Can Find More Information...............................................................................1
Grey Wolf, Inc....................................................................................................2
Forward-looking Statements........................................................................................2
Risk Factors......................................................................................................3
Use of Proceeds..................................................................................................12
Ratio of Earnings to Fixed Charges and Earnings to Fixed Charges and Preferred Stock Dividends...................12
Description of Debt Securities...................................................................................14
Description of Other Indebtedness................................................................................22
Description of Capital Stock.....................................................................................23
Description of Depositary Shares.................................................................................25
Description of Warrants..........................................................................................27
Plan of Distribution.............................................................................................31
Legal Matters....................................................................................................33
Experts ........................................................................................................33
</TABLE>
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed
with the SEC utilizing a "shelf" registration process. Under this shelf
registration process, we may sell different types of securities described in
this prospectus in one or more offerings up to a total offering amount of $200.0
million. This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of
that offering and the securities offered by us in that offering. The prospectus
supplement may also add, update or change information 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."
In this prospectus references to "Grey Wolf," "we," "us" and "our" mean
Grey Wolf, Inc.
WHERE YOU CAN FIND MORE INFORMATION
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. You also may read and copy any document we file at the
SEC's public reference room in Washington, D.C. Please call the SEC at
1-800-SEC-0330 for further information about the public reference room.
The SEC allows 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 them. That means we can disclose important information to
you by referring you to those documents. The information incorporated by
reference is considered to be part of this prospectus, and information that we
file later with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed below and any
future filings we make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of
the Securities Exchange Act of 1934 until we sell all of the securities:
o our annual report on Form 10-K for the year ended December
31, 1998;
o our quarterly report on Form 10-Q for the quarter ended June
30, 1999;
o our quarterly report on Form 10-Q for the quarter ended
March 31, 1999;
o our current report on Form 8-K, filed on March 23, 1999;
o the description of our common stock contained in our current
report on Form 8-K dated October 6, 1997; and
o the description of our preferred stock purchase rights
contained in our registration statement on Form 8-A/A filed
with the SEC on October 9, 1998.
You may request a copy of these filings, at no cost, by writing or
calling us at the following address:
Grey Wolf, Inc.
10370 Richmond Avenue, Suite 600
Houston, Texas 77042-4136
(713) 435-6100
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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.
GREY WOLF, INC.
Grey Wolf, Inc. is a leading provider of contract land drilling
services in the United States with a domestic fleet of 120 rigs. In addition to
our domestic operations, we maintain a fleet of five inventory rigs in
Venezuela, giving us a total of 125 rigs, 108 of which are marketable. We
believe we have the largest number of working rigs in our combined market areas
which include the Gulf Coast, South Texas, Ark-La-Tex and Mississippi/Alabama
markets. We have an inventory of 17 non-marketed rigs held for refurbishment as
demand for drilling services warrants, of which 12 are located in the United
States and the remainder in Venezuela. Our customers include independent
producers and major oil companies. We conduct our operations through our
subsidiaries.
Our principal office is located at 10370 Richmond Avenue, Suite 600,
Houston, Texas 77042-4136, and our telephone number is (713) 435-6100.
FORWARD-LOOKING STATEMENTS
The statements in this prospectus, any prospectus supplement and the
documents incorporated by reference that relate to matters that are not
historical facts are "forward-looking statements" within the meaning of Section
27A of the Securities Act and Section 21E of the Exchange Act. Forward-looking
statements are subject to risks, uncertainties and assumptions, including those
discussed elsewhere in this prospectus. When used in this prospectus, any
prospectus supplement and the documents incorporated by reference, words such as
"anticipate," "believe," "expect," "plan," "intend," "estimate," "project,"
"will," "could," "may," "predict," and similar expressions are intended to
identify forward-looking statements. Future events and actual results may differ
materially from the results expressed in or implied by the forward-looking
statements. Factors that might cause such a difference include:
o fluctuations in prices and demand for oil and gas;
o fluctuations in levels of oil and gas exploration and
development activities;
o fluctuations in the demand for contract land drilling
services;
o the existence of competitors, technological changes and
developments in the industry;
o the existence of operating risks inherent in the contract
land drilling industry; and
o year 2000 issues and general economic conditions, in
addition to the other matters discussed under "Risk
Factors."
The information contained in this prospectus, including the information
presented under the heading "Risk Factors," identifies additional factors that
could affect our operating results and performance. We urge you to carefully
consider those factors.
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RISK FACTORS
You should carefully consider the following risk factors and all of the
other information set forth or incorporated by reference in this prospectus and
any applicable prospectus supplement before you purchase our securities. This
prospectus, any applicable prospectus supplement and the documents incorporated
by reference contain forward-looking statements which involve risks and
uncertainties. Our actual results could differ materially from those anticipated
in these forward-looking statements as a result of certain factors, including
those set forth in the following risk factors and elsewhere in this prospectus,
any applicable prospectus supplement and the documents incorporated by reference
into this document.
RISKS RELATED TO OUR BUSINESS GENERALLY
OUR BUSINESS CAN BE ADVERSELY EFFECTED BY LOW OIL AND GAS PRICES AND
EXPECTATIONS OF LOW PRICES.
As a supplier of land drilling services, our business depends on the
level of drilling activity by oil and gas exploration and production companies
operating in the geographic markets where we operate. The number of wells they
choose to drill is strongly influenced by past trends in oil and gas prices,
current prices, and their outlook for future oil and gas prices within those
geographic markets. Low oil and gas prices, or the perception among oil and gas
companies that future prices are likely to remain low or decline further, can
materially and adversely effect us in many ways, including:
o our revenues, cash flows and earnings;
o the fair market value of our rig fleet;
o our ability to maintain or increase our borrowing capacity;
o our ability to obtain additional capital to finance our
business and make acquisitions, and the cost of that
capital; and
o our ability to retain skilled rig personnel who we would
need in the event of a upturn in the demand for our
services.
Oil and gas prices have been volatile historically and, we believe,
will continue to be so in the future. Many factors beyond our control affect oil
and gas prices, including:
o weather conditions in the United States and elsewhere;
o economic conditions in the United States and elsewhere;
o actions by OPEC, the Organization of Petroleum Exporting
Countries;
o political stability in the Middle East and other major
producing regions;
o governmental regulations, both domestic and foreign;
o the pace adopted by foreign governments for exploration of
their national reserves;
o the price of foreign imports of oil and gas; and
o the overall supply and demand for oil and gas.
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WE OPERATE IN A HIGHLY COMPETITIVE, FRAGMENTED INDUSTRY IN WHICH PRICE
COMPETITION HAS INTENSIFIED AS EXCESS DRILLING RIG CAPACITY HAS INCREASED.
We operate in a highly competitive business. The drilling contracts we
compete for are usually awarded on the basis of competitive bids. Pricing and
rig availability are the primary factors considered by our potential customers
in determining which drilling contractor to select. We believe other factors are
also important. Among those factors are:
o the type and condition of drilling rigs;
o the quality of service and experience of rig crews;
o the safety record of the rig;
o the contractor's offering of ancillary services; and
o the ability of the contractor to provide drilling equipment
adaptable to, and personnel familiar with, new technologies
and drilling techniques.
While we must generally be competitive in our pricing, our competitive
strategy generally emphasizes the quality of our equipment, the safety record of
our rigs and the experience of our rig crews to differentiate us from our
competitors. This strategy has become less effective recently as lower demand
for drilling services has intensified price competition and made it more
difficult for us to compete on the basis of factors other than price. In all of
the markets in which we compete there is an over supply of rigs which has
provoked greater price competition.
Contract drilling companies compete primarily on a regional basis, and
the intensity of competition may vary significantly from region to region at any
particular time. If demand for drilling services improves in a region where we
operate, our competitors might respond by moving in suitable rigs from other
regions. An influx of rigs from other regions could rapidly intensify
competition and make any improvement in demand for drilling rigs short-lived.
The domestic land drilling business is highly fragmented. Although we
believe that at August 31, 1999, we had the largest number of rigs engaged in
drilling operations in our four domestic market areas combined, that number of
working rigs represented only 19% of all rigs working in the combined market
areas at the same date. We face competition from many competitors.
As price competition has intensified, some of our competitors have been
able to reduce the rates they charge for their rigs largely, we believe, by
decreasing the wages they pay their rig crews. We have chosen not to cut the
wages of our rig crews for strategic reasons, principally to help us retain the
experienced rig crews so as to better position us to participate in possible
future increases in drilling activity. This strategy has caused us to lose
market share in certain of our domestic markets, and may result in additional
losses of market share in the future. We can not be certain that we will be able
to recover lost market share even if the demand for drilling services improves
in the future.
Certain of our competitors have greater financial and human resources
than do we. Their greater capabilities in these areas may enable them to:
o better withstand periods of low rig utilization;
o compete more effectively on the basis of price and
technology;
o retain skilled rig personnel; and
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o build new rigs or acquire and refurbish existing rigs so as
to be able to place rigs into service more quickly than us
in periods of high drilling activity.
OUR DRILLING OPERATIONS INVOLVE INHERENT RISKS OF LOSS WHICH IF NOT INSURED OR
INDEMNIFIED AGAINST COULD ADVERSELY AFFECT OUR RESULTS OF OPERATIONS.
Our business is subject to the many hazards inherent in the land
drilling business including the risks of:
o blowouts;
o fires and explosions;
o collapse of the borehole;
o lost or stuck drill strings; and
o damage or loss from natural disasters.
If these hazards occur they can produce substantial liabilities to us from,
among other things:
o suspension of drilling operations;
o damage to the environment;
o damage to, or destruction of our property and equipment and
that of others;
o personal injury and loss of life; and
o damage to producing or potentially productive oil and gas
formations through which we drill.
We attempt to obtain indemnification from our customers by contract for
certain of these risks but are not always able to do so. We also seek to protect
ourselves from some but not all operating hazards through insurance coverage.
The indemnification we receive from our customers and our own insurance coverage
may not, however, be sufficient to protect us against liability for all
consequences of disasters, personal injury and property damage. Additionally,
our insurance coverage generally provides that we bear a portion of the claim
through substantial insurance coverage deductibles. The premiums we pay for
insurance policies are also subject to substantial increase based upon our
claims history, which may increase our operating costs. We can offer you no
assurance that our insurance or indemnification arrangements will adequately
protect us against liability from all of the hazards of our business. We are
also subject to the risk that we may be unable to obtain or renew insurance
coverage of the type and amount we desire at reasonable rates. If we were to
incur a significant liability for which we were not fully insured or indemnified
it could have a material adverse effect on our financial position and results of
operations.
OUR OPERATIONS ARE SUBJECT TO DOMESTIC AND FOREIGN ENVIRONMENTAL LAWS THAT MAY
EXPOSE US TO LIABILITIES FOR NONCOMPLIANCE WHICH COULD ADVERSELY AFFECT US.
Many aspects of our operations are subject to domestic and foreign laws
and regulations. For example, our drilling operations are typically subject to
extensive and evolving laws and regulations governing:
o environmental quality;
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o pollution control; and
o remediation of environmental contamination.
Our operations are often conducted in or near ecologically sensitive
areas, such as wetlands which are subject to special protective measures and
which may expose us to additional operating costs and liabilities for
noncompliance. The handling of waste materials, some of which are classified as
hazardous substances, is a necessary part of our operations. Consequently, our
operations are subject to stringent regulations relating to protection of the
environment and waste handling which may impose liability on us for our own
noncompliance and, in addition, that of other parties without regard to whether
we were negligent or otherwise at fault. We may also be exposed to environmental
or other liabilities originating from businesses and assets which we purchased
from others. Compliance with applicable laws and regulations may require us to
incur significant expenses and capital expenditures which could have a material
and adverse effect on our operations by increasing our expenses and limiting our
future contract drilling opportunities.
RISKS RELATING TO OUR OPERATIONS
WE ARE EXPERIENCING WEAK DEMAND FOR OUR SERVICES DUE TO LOWER OIL AND GAS PRICES
AND LOSS OF MARKET SHARE, WHICH IF PROLONGED COULD HAVE SERIOUS CONSEQUENCES FOR
US.
Volatility in oil and gas prices can produce wide swings in the levels
of overall drilling activity in the markets we serve and affect the demand for
our drilling services and the day rates we can charge for our rigs. Pronounced
downturns in oil and gas prices can adversely affect our business.
We believe our recent operating and financial performance illustrates
this risk. Oil and gas prices generally dropped beginning in late 1997, with
generally lower commodity prices extending well into 1999. Beginning in the
first quarter of 1998, drilling activity in the markets we serve also dropped
significantly, and we experienced a significant decline both in the utilization
rates for our rigs and in the day rates we could charge for them. Our rig
utilization in our core domestic markets was 81% during the first quarter of
1998 but declined to 39% in the first quarter of 1999 and stood at 31% for the
quarter ended June 30, 1999. Our average revenue per rig day worked was $9,407
in the first quarter of 1998, declining to $7,825 for the quarter ended June 30,
1999. Although oil and gas prices have improved recently, drilling activity in
our core domestic markets has improved only slightly and overall land drilling
activity remains depressed. Demand for our rigs remains weak and our day rates
have recently shown only a very slight improvement.
Future demand for our rigs may remain the same or may decline further
and we can offer you no assurance otherwise. If drilling activity does increase
in the areas where we operate, we cannot assure you that demand for our rigs
will also increase.
Although we believe the weakness in demand for our drilling services is
primarily attributable to low oil and gas prices, we also believe that strategic
pricing decisions we have made in certain domestic markets have contributed to
the weakness. In particular, we have chosen not to further lower the day rates
we charge for our rigs in certain markets by reducing the wages we pay our rig
crews. We did so in order to reduce deterioration of our operating margins and
to help us retain the experienced rig personnel we believe will be necessary to
respond to possible future upturns in our business. We do not expect to be able
to charge higher day rates for our rigs unless there is a meaningful increase in
the demand for our rigs. This pricing strategy has caused us to loose market
share to lower-priced competition in certain of our core markets and may cause
further losses in our market share if price competition intensifies.
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Depressed levels of rig utilization, lower day rates and reduced market
share have adversely effected our financial condition and results of operations,
and will continue to do so unless substantial improvement in demand for our land
drilling services occurs. If these conditions persist over a prolonged period or
worsen, we may be unable to meet our debt service obligations under
approximately $250.0 million of our outstanding senior notes, and any then
outstanding indebtedness to our secured lenders.
WE OWE OVER $250.0 MILLION OF INDEBTEDNESS UNDER OUR SENIOR NOTES AND OUR
OPERATIONS ARE NOT GENERATING SUFFICIENT CASH FLOW TO COVER OUR SEMI-ANNUAL
INTEREST PAYMENTS OF APPROXIMATELY $11.1 MILLION.
We are indebted for a total of $250.0 million in principal amount under
our 8 7/8% Senior Notes. Semi-annual interest payments on the senior notes of
approximately $11.1 million are due on January 1 and July 1 of each year. For
the six months ended June 30, 1999, however, our operating activities, investing
activities and financing activities each consumed net cash rather than provided
additional cash. To meet our debt service obligations under the senior notes and
provide necessary cash, we were required to use our cash on hand.
Our ability in the future to meet our debt service obligations and
reduce our total indebtedness will depend on a number of factors including:
o oil and gas prices;
o demand for our drilling services;
o whether our business strategy is successful;
o levels of interest rates; and
o other financial and business factors that affect us.
Many of these factors are beyond our control.
If we do not generate sufficient cash flow to pay debt service and
repay principal in the future, we will likely be required to use one or more of
the following measures:
o further diminish our cash balances;
o use our existing credit facility;
o obtain additional external financing;
o refinance our indebtedness;
o sell our assets; and
o seek protection under federal bankruptcy laws.
WE HAVE HAD ONLY ONE PROFITABLE YEAR SINCE 1991 AND DO NOT EXPECT TO BE
PROFITABLE IN 1999.
We have a history of losses with our only profitable year since 1991
being 1997 in which we had net income of $10.2 million. Due to depressed demand
for our drilling service through most of 1999, we do not expect to be profitable
in 1999. Whether we are able to become profitable in the future will depend on
many factors, but primarily on whether we are able to obtain substantially
higher utilization
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rates for our rigs and the rates we charge for them. Whether we can achieve
those goals will largely depend on oil and gas prices which are beyond our
control.
UNEXPECTED COST OVERRUNS ON OUR TURNKEY DRILLING JOBS COULD ADVERSELY AFFECT US.
We have historically derived a significant portion of our revenues from
turnkey drilling contracts and we expect that they will continue to represent a
significant component of our revenues. The occurrence of uninsured or
under-insured losses or operating cost overruns on our turnkey jobs could have a
material adverse effect on our financial position and results of operations.
Under a typical turnkey drilling contract, we agree to drill a well for our
customer to a specified depth and under specified conditions for a fixed price.
We typically provide technical expertise and engineering service, as well as
most of the equipment required for the drilling of turnkey wells. We often
subcontract for related services. Under typical turnkey drilling arrangements,
we do not receive progress payments and are entitled to be paid by our customer
only after we have performed the terms of the drilling contract in full. For
this reason, the risk to us under turnkey drilling contracts is substantially
greater than for wells drilled on a day work basis because we must assume most
of the risks associated with drilling operations that are generally assumed by
our customer under a day work contract. Although we attempt to obtain insurance
coverage to reduce certain of the risks inherent in our turnkey drilling
operations, we can offer no assurance that adequate coverage will be obtained or
will be available in the future.
WE COULD BE ADVERSELY AFFECTED IF WE LOST THE SERVICES OF CERTAIN OF OUR SENIOR
MANAGERS.
Our business is dependent to a significant extent on a small group of
our executive management personnel. The loss of any one of these individuals
could have a material adverse effect on our financial condition and results of
operations.
OUR CREDIT AGREEMENTS MAY PROHIBIT US FROM PARTICIPATION IN CERTAIN TRANSACTIONS
THAT WE MAY CONSIDER ADVANTAGEOUS.
The indentures under which we issued our 8 7/8% Senior Notes contain
restrictions on our ability and the ability of certain of our subsidiaries to
engage in certain types of transactions. These restrictive covenants may
adversely affect our ability to pursue business acquisitions and rig
refurbishments. These include covenants prohibiting or limiting our ability to:
o incur additional indebtedness;
o pay dividends or make other restricted payments;
o sell material assets;
o grant or permit liens to exist on our assets;
o enter into sale and lease-back transactions;
o enter into certain mergers, acquisitions and consolidations;
o make certain investments;
o enter into transactions with related persons; and
o engage in lines of business unrelated to our core land
drilling business.
Our senior secured credit facility also contains covenants restricting our
ability and our subsidiaries' ability to undertake many of the same types of
transactions, and contains financial ratio covenants. They
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may also limit our ability to respond to changes in market conditions. Our
ability to meet the financial ratio covenants of our credit agreements can be
affected by events and conditions beyond our control and we may be unable to
meet those tests.
Our senior secured credit facility contains default terms that
effectively cross default with the indentures covering our 8 7/8% Senior Notes.
If we breach the covenants in the indentures it could cause our default under
the indentures but also under our senior secured credit agreement, and possibly
other then outstanding debt obligations owed by us or our subsidiaries. If the
indebtedness under our senior secured credit agreement or other indebtedness
owed by us or our subsidiaries is more than $10.0 million and is not paid when
due, or is accelerated by the holders of the debt, then an event of default
under the indenture covering our senior notes would occur. If circumstances
arise in which we are in default under our various credit agreements, our cash
and other assets may be insufficient to repay our indebtedness and that of our
subsidiaries.
RISKS RELATING TO OUR SECURITIES
THERE IS NO EXISTING PUBLIC MARKET FOR CERTAIN OF THE SECURITIES WE MAY SELL
WHICH COULD LIMIT YOUR ABILITY TO RESELL THEM.
Our common stock is traded on the American Stock Exchange. All other
debt securities, preferred stock, depositary shares and warrants sold or offered
under this prospectus will be securities for which there will be no established
trading market. Any underwriters to whom we sell debt securities, preferred
stock, depositary shares or warrants in a public offering may make a market in
those securities but they will not be obligated to do so and the underwriters
may discontinue any market making activities at any time without notice to us or
you. Because there may be no secondary market for our debt securities, preferred
stock, depositary shares or warrants, you may be unable to resell those
securities.
WE ARE A HOLDING COMPANY AND DEPEND ON OUR SUBSIDIARIES TO PROVIDE US WITH CASH
TO MEET OUR FINANCIAL OBLIGATIONS.
Grey Wolf, Inc. is a holding company that conducts substantially all of
its operations through both United States and foreign subsidiaries.
Substantially all of our assets consist of our equity in our subsidiaries. We
are, and expect to continue to be, dependent on our ability to obtain funds from
our subsidiaries to meet our financial needs including funds to repay interest
and principal on our indebtedness. We cannot assure you that our operating
subsidiaries will generate sufficient net income to pay upstream dividends or
sufficient cash flow to make payments of principal and interest to us for
intercompany loans we may make to them from time-to-time. Our inability to
obtain funds from our subsidiaries for any reason could impair our ability to
meet our obligations under securities we issue.
OUR EXISTING DIVIDEND POLICY AND CONTRACTUAL RESTRICTIONS LIMIT OUR ABILITY TO
PAY DIVIDENDS.
We have never declared a cash dividend on our common stock and do not
expect to pay cash dividends on our common stock for the foreseeable future. We
expect that all cash flow generated from our operations in the foreseeable
future will be retained and used to develop or expand our business, pay debt
service and reduce outstanding indebtedness. Furthermore, the terms of our
secured credit facility prohibit the payment of dividends without prior written
consent and the terms of the indentures under which our senior notes are issued
also restrict our ability to pay dividends under certain conditions. In the
event we issue any dividend-paying preferred stock, the applicable prospectus
supplement will address further any applicable restrictions on our ability to
pay dividends on the securities to be issued.
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<PAGE> 13
CERTAIN PROVISIONS OF OUR ORGANIZATIONAL DOCUMENTS, SECURITIES AND CREDIT
AGREEMENTS HAVE ANTI-TAKEOVER EFFECTS WHICH MAY PREVENT OUR SHAREHOLDERS FROM
RECEIVING THE MAXIMUM VALUE FOR THEIR SHARES.
Our Articles of Incorporation, bylaws, securities and credit agreements
contain certain provisions intended to delay or prevent entirely a change of
control transaction not supported by our board of directors, or which may have
that general effect. These measures include:
o classification of our board of directors into three classes,
with each class serving a staggered three year term;
o giving our board of directors the exclusive authority to
adopt, amend or repeal our Bylaws and thus prohibiting
shareholders from doing so;
o requiring our shareholders to give advance notice of their
intent to submit a proposal at the annual meeting; and
o limiting the ability of our shareholders to call a special
meeting and act by written consent.
Additionally, the indentures under which our 8 7/8% Senior Notes are
issued, require us to offer to repurchase all senior notes then outstanding at a
purchase price equal to 101% of the principal amount of the senior notes plus
accrued and unpaid interest to the date of purchase in the event that the
Company becomes subject to a change of control, as defined in the indenture.
This feature of the indenture could also have the effect of discouraging
potentially attractive change of control offers.
LARGE AMOUNTS OF OUR COMMON STOCK MAY BE RESOLD INTO THE MARKET IN THE FUTURE
WHICH COULD CAUSE THE MARKET PRICE OF OUR COMMON STOCK TO DROP SIGNIFICANTLY,
EVEN IF OUR BUSINESS IS DOING WELL.
This prospectus may be used to issue common stock, preferred stock that
is convertible into common stock and warrants to acquire common stock. If we
issue a significant amount of common stock, convertible preferred stock or
warrants, the market price of our common stock may be adversely affected.
As of August 31, 1999, 165,158,791 shares of our common stock were
issued and outstanding. Approximately 60% is available for resale in the
public market as follows:
o 84,664,760 shares of common stock by certain of our
shareholders, the resale of which has been registered under
the Securities Act;
o 7,296,375 shares of common stock which may be acquired
upon exercise of outstanding options; and
o 13,999,957 shares of common stock which we believe are
potentially eligible for resale pursuant to an exemption
from registration under the Securities Act.
The market price of our common stock could drop significantly if these holders
sell or are perceived by the market as intending to sell their common stock.
WE FACE A THREAT OF BUSINESS DISRUPTION FROM THE YEAR 2000 ISSUE.
The Year 2000 issue refers to the inability of computer and other
information technology systems to properly process date and time information
stemming from the outdated programming
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<PAGE> 14
practice of using two digits rather than four to represent the year and a date.
The consequence of the Year 2000 issue is that our computer systems and those of
our customers and suppliers may not work properly and adversely affect our
business. For more information on these issues and our plans to respond to these
risks, please see our Form 10-Q for the quarter ended June 30, 1999 under the
caption "Management's Discussion and Analysis of Financial Condition and Results
of Operations--Year 2000 Compliance," which we incorporate into this Prospectus
by reference.
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<PAGE> 15
USE OF PROCEEDS
Unless we specify otherwise in the applicable prospectus supplement,
the net proceeds (after the payment of offering expenses and underwriting
discounts or commissions) we receive from the sale of the securities offered by
this prospectus and any prospectus supplement will be used for general corporate
purposes. General corporate purposes may include any of the following:
o funding capital expenditures, including rig refurbishments;
o providing working capital;
o investing in or lending money to our subsidiaries;
o repaying debt;
o redeeming or repurchasing our securities; or
o paying for possible acquisitions or the expansion of our
businesses.
We may temporarily invest the net proceeds we receive from any offering of
securities or use the net proceeds to repay short-term debt until we can use
them for their stated purposes.
RATIO OF EARNINGS TO FIXED CHARGES AND
EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The ratio of earnings to fixed charges for each of the periods set
forth below has been computed on a consolidated basis and should be read in
conjunction with our consolidated financial statements (including the notes
thereto) set forth or incorporated by reference in our Form 10-K for the fiscal
year ended December 31, 1998.
<TABLE>
<CAPTION>
SIX TWELVE NINE
MONTHS YEAR ENDED DECEMBER 31, MONTHS MONTHS YEAR
ENDED ---------------------------- ENDED ENDED ENDED
JUNE 30, DECEMBER 31, DECEMBER 31, MARCH 31,
1999 1998 1997 1996 1995 1994 1994(1) 1994(1)
-------- ---- ---- ---- ---- ---- ------------ ---------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges ............ (2) (2) 3.19x (2) (2) (2) (2) (2)
Ratio of earnings to fixed charges
and preferred stock dividends ............ (3) (4) 3.19x (4) (4) (4) (4) (3)
</TABLE>
- --------------
(1) In 1994, Grey Wolf changed its fiscal year end from March 31 to
December 31.
(2) Earnings were insufficient to cover fixed charges for the periods indicated
as follows:
<TABLE>
<CAPTION>
Year Ended
<S> <C>
December 31, 1998 $111,164
December 31, 1996 10,759
December 31, 1995 12,675
March 31, 1994 1,384
Twelve Months Ended
December 31, 1994 3,557
</TABLE>
<TABLE>
<CAPTION>
Nine Months Ended
<S> <C>
December 31, 1994 2,260
</TABLE>
<TABLE>
<CAPTION>
Six Months Ended
<S> <C>
June 30, 1999 16,901
</TABLE>
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<PAGE> 16
(3) There was no preferred stock outstanding during these periods.
(4) Earnings were insufficient to cover fixed charges and preferred stock
dividends for the periods indicated as follows:
Year Ended
December 31, 1998 $111,164
December 31, 1996 11,179
December 31, 1995 12,675
March 31, 1994 1,384
Twelve Months Ended
December 31, 1994 3,557
Nine Months Ended
December 31, 1994 2,260
Six Months Ended
June 30, 1999 16,901
For purposes of computing these ratios, "earnings" consist of pretax
income from continuing operations plus fixed charges (excluding capitalized
interest). "Fixed charges" represent interest incurred (whether expensed or
capitalized), amortization of debt expense, and that portion of rental expense
on operating leases deemed to be the equivalent of interest. "Fixed charges and
preferred stock dividends" represent fixed charges (as previously described) and
the preferred stock dividend requirements of Grey Wolf.
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<PAGE> 17
DESCRIPTION OF DEBT SECURITIES
The following description highlights certain general terms and
provisions of the debt securities. This summary is not complete. When debt
securities are offered in the future, the prospectus supplement will explain the
particular terms of those securities and the extent to which these general
provisions may apply.
The forms of the indenture for the debt securities have been filed as
exhibits to the registration statement and you should read the applicable
indenture for provisions that may be important to you. Article and Section
references used herein are references to the applicable indenture. Capitalized
terms not otherwise defined in this Description of Debt Securities will have the
meaning given in the indentures.
GENERAL
Since Grey Wolf is a holding company, our rights and the rights of our
creditors, including the holders of the debt securities, to participate in any
distribution of the assets of any subsidiary upon its liquidation or
reorganization or otherwise are necessarily subject to the prior claims of
creditors of the subsidiary, except to the extent that we may be recognized as a
creditor of the subsidiary. Generally, the debt securities will be effectively
subordinated to all existing and future indebtedness of our operating
subsidiaries.
Any debt securities we offer will be our direct, unsecured general
obligations. The debt securities will be either senior debt securities or
subordinated debt securities which may be issued in registered or global form.
The senior debt securities will rank equally with all of our other senior and
unsubordinated debt. The subordinated debt securities will have a junior
position to all of our senior debt.
The indentures do not limit the aggregate principal amount of debt
securities that can be issued. The debt securities may be issued in one or more
series as may be authorized from time to time by Grey Wolf.
A prospectus supplement and a supplemental indenture relating to the
offering of a particular series of debt securities will set forth the specific
terms of the offered debt securities (Indentures, Section 301). These terms will
include some or all of the following:
o the title of the debt securities;
o the aggregate principal amount of the debt securities;
o the person to whom any interest on the offered debt
securities will be payable, if other than the person in
whose name such offered debt securities are registered on
any regular record date;
o the date or dates (or method of determining the date) on
which we will pay the principal and premium, if any, of the
debt securities;
o the interest rate (or method of determining the rate) at
which the debt securities will bear interest, the date or
dates from which interest will accrue and the dates on which
interest, if any, will be payable and the regular record
dates for such interest payment dates;
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<PAGE> 18
o the place or places where we will pay principal, premium and
interest, if any, on the debt securities;
o any optional redemption periods and prices;
o any sinking fund or analogous provision that would obligate
us to repurchase or otherwise redeem the debt securities;
o any rights of the holders of the debt securities to convert
or exchange the debt securities into or for our securities
and the terms and conditions of the conversion or exchange;
o the denominations in which we will issue debt securities if
other than denominations of $1,000 and any integral multiple
thereof;
o the manner in which we will determine the amounts of
principal, premium or interest, if any, on the debt
securities if these amounts may be determined with reference
to one or more indices;
o the currency in which we will pay principal of, premium, if
any, or interest on the debt securities if other than the
United States dollar;
o the price or prices (expressed as a percentage of the
principal amount thereof) at which we will issue debt
securities;
o if other than the entire principal amount, the portion of
the principal amount payable if the maturity of the debt
securities is accelerated;
o whether we will issue debt securities in the form of global
securities and, if so, the depositary for, and other terms
and conditions relating to, the global securities;
o whether the principal of, premium and interest, if any, on
the offered debt securities is to be payable in securities
of Grey Wolf and the terms and conditions applicable to any
such payment;
o any change in or addition to the events of default;
o any change in or addition to the covenants, definitions or
to the provisions relating to our consolidation, merger,
sale or conveyance of assets;
o any subordination provisions relating to the debt
securities;
o any restriction or condition on the transferability of the
debt securities;
o any changes or additions to the defeasance or discharge
provisions;
o any trustees, authenticating or paying agents, registrars,
conversion agents or other agents appointed by us with
respect to the debt securities; and
o any other terms of the debt securities.
Debt securities may be issued at a discount from their stated principal
amount. Certain United States federal income tax considerations applicable to
any debt security issued with original issue
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<PAGE> 19
discount and any debt security on which the interest is to be payable in our
securities will be described in an applicable prospectus supplement.
EVENTS OF DEFAULT AND NOTICE OF DEFAULT
"Events of Default" with respect to debt securities of any series means
any of the following (Indentures, Section 501):
o failure to pay principal of, or premium, if any, on, any
debt security of that series when due (in the case of the
subordinated indenture, whether or not payment is prohibited
by the subordination provisions);
o failure to pay interest, if any, or deposit any mandatory
sinking fund payment, if any, on any debt security of that
series when due and such failure continues for a period of
30 days;
o failure by Grey Wolf to perform any other covenant in the
indentures (other than a covenant included in the indentures
solely for the benefit of a series of debt securities other
than that series) which continues for a period of 90 days
after written notice to Grey Wolf; and
o certain events of insolvency, reorganization, receivership
or liquidation of Grey Wolf.
An event of default with respect to debt securities of a particular
series does not necessarily constitute an event of default with respect to debt
securities of any other series. If an event of default with respect to any other
series of debt securities occurs and continues, then either the trustee or the
holders of at least 25% in principal amount of the outstanding debt securities
of that series may declare the principal amount of all debt securities of that
series to be due and payable immediately; however, under certain circumstances,
the holders of a majority in aggregate principal amount of outstanding debt
securities of that series may rescind or annul such declaration and its
consequences.
Except for a default in payment of principal, premium and interest, if
any, the trustee may withhold notice to the holders of the debt securities of
any default if it considers it in the interest of the holders of the debt
securities to do so (Indentures, Section 602). Grey Wolf must furnish annually
the trustee a statement by one of certain specified officers of Grey Wolf as to
the compliance with all conditions and covenants of the indentures (Indentures,
Section 1005).
The holders of a majority in principal amount of the outstanding debt
securities of any series will have the right, subject to certain limitations, to
direct the time, method and place of conducting any proceeding for any remedy
available to the trustee or exercising any trust or power conferred on the
trustee with respect to the debt securities of that series, and to waive certain
defaults (Indentures, Sections 512 and 513).
The indentures provide that, if an event of default occurs and
continues, then the trustee must exercise its rights and powers under the
indentures, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his or her own affairs (Indentures, Section 601). Subject to these provisions,
the trustee will be under no obligation to exercise any of its rights or powers
under the indentures at the request of any of the holders of debt securities
unless they have offered to the trustee security or indemnity in form and
substance reasonably satisfactory to the trustee against the costs, expenses and
liabilities that it might incur in compliance with the holders' request
(Indentures, Section 603).
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<PAGE> 20
MODIFICATION OF INDENTURE
Grey Wolf and the trustee from time to time may modify the indentures,
without prior notice to or the consent of the holders of any series of debt
securities for any of the following purposes (Indentures, Section 901):
o to evidence the succession of another person to our rights
and the assumption by the successor of our covenants and
obligations in an indenture and the debt securities;
o to add to the covenants for the benefit of the holders of
the debt securities or to surrender any right or power
conferred upon us in an indenture;
o to add any events of default;
o to cure any ambiguity, defect or inconsistency, to secure
the debt securities, or to make any change that does not
adversely affect the rights of any holders;
o to modify or amend an indenture to permit the qualification
of the indenture or any supplemental indenture under the
Trust Indenture Act;
o to comply with the provisions relating to consolidations,
mergers and sales of assets;
o in the case of subordinated debt securities, to make any
change in the provisions of the indenture relating to
subordination that would limit or terminate the benefits
available to any holder of senior debt under such
provisions;
o to add guarantees for any or all of the debt securities or
to secure any or all of the debt securities;
o to make any change that does not adversely affect the rights
of any holder;
o to add to, change or eliminate any provision of an
indenture, so long as the addition, change or elimination
will (a) neither apply to any debt security of any series
created prior to the modification which is entitled to the
benefit of the provision nor modify the rights of the
holders of any such debt security with respect to the
provision or (b) become effective only when there is no debt
security outstanding;
o to permit or facilitate the defeasance and discharge of any
series of debt securities pursuant to the indenture, so long
as such action does not adversely effect the rights of any
holder;
o to evidence and provide for a successor or other trustee
with respect to the debt securities of one or more series
and to add to our change any provision of an indenture to
provide for or facilitate the administration by more than
one trustee;
o to establish the form or terms of debt securities and
coupons of any series; and
o to provide for uncertificated debt securities in addition to
or in place of certificated debt securities.
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<PAGE> 21
Grey Wolf and the trustee may modify and amend the indentures with the
consent of the holders of at least a majority of the principal amount of each
series of the outstanding debt securities which is affected by the modification
or amendment; provided, however, no modification or amendment may, without the
consent of each holder of a debt security affected thereby (Indentures, Section
902):
o change the stated maturity of the principal of or any
installment of principal or interest if any, on any debt
security;
o reduce the principal amount of, premium and interest rate,
if any, on any debt security or the principal amount due
upon acceleration of any Original Issue Discount security;
o change the place or currency of payment of principal,
premium or interest, if any, on debt security;
o impair the right to institute suit for the enforcement of
any such payment on or with respect to any debt security;
o reduce the percentage of the principal amount of debt
securities necessary to modify or amend the indentures;
o in the case of the subordinated indenture, modify the
subordination provisions in a manner adverse to the holders
of the subordinated debt securities; or
o modify the foregoing requirements or reduce the percentage
of outstanding debt securities necessary to waive compliance
with certain provisions of the indentures or to waive
certain defaults.
The holders of at least a majority of the aggregate principal amount of
the outstanding debt securities of any series may, on behalf of all holders of
that series, waive compliance by Grey Wolf with any of the provisions of the
indentures and waive any past default under an indenture, except a default in
the payment of principal, premium and interest, if any, or in the performance of
certain covenants (Indentures, Sections 1006 and 513).
SATISFACTION AND DISCHARGE OF THE INDENTURES; DEFEASANCE
Discharge. Except as described below, Grey Wolf will be discharged from
its obligations under the indenture with respect to any series of debt
securities by either paying the principal of, any premium and interest on all of
the outstanding debt securities of such series when due and payable or
delivering to the trustee all outstanding debt securities of such series for
cancellation. Grey Wolf will not be able to discharge the following obligations:
o the rights of holders of debt securities to receive payments
of principal, premium and interest, if any, when due;
o our obligation to issue temporary debt securities or to
replace mutilated, lost, destroyed or stolen debt
securities;
o our obligation to maintain an office or agency for payments
to holders of debt securities; and
o the rights, powers, trusts, duties and immunities of the
trustee.
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<PAGE> 22
Legal Defeasance. Grey Wolf may be discharged from its obligations on
the debt securities of any series at any time if it deposits with the trustee
sufficient cash or government obligations to pay the principal of, any premium
and interest on the debt securities of that series to the stated maturity date
or a redemption date for the debt securities of that series. If that happens,
payment of the debt securities of such series may not be accelerated because of
an event specified as an event of default with respect to such debt securities,
and the holders of the debt securities of such series will not be entitled to
the benefits of the indenture, except for registration of transfer and exchange
of debt securities and replacement of lost, stolen or mutilated debt securities
(Indentures, Sections 401, 403 and 405).
Grey Wolf may be discharged only if, among other things, it has
delivered to the trustee an opinion of counsel stating that it has received from
the United States Internal Revenue Service a ruling or, since the date of
execution of the indenture, there has been a change in the applicable federal
income tax law, in either case to the effect that the holders of the debt
securities of that series will not recognize income, gain or loss for federal
income tax purposes as a result of the defeasance.
Covenant Defeasance. Grey Wolf may omit to comply with certain
restrictive covenants contained in the indenture and any omission to comply with
those covenants will not constitute a default or event of default with respect
to the debt securities of any series (Indentures, Section 406). Grey Wolf may
omit to comply with such covenants only if, among other things:
o it deposits with the trustee sufficient cash or government
obligations to pay the principal of, any premium and
interest on the debt securities of that series to the stated
maturity date or a redemption date for the debt securities
of that series; and
o it delivers to the trustee an opinion of counsel to the
effect that the holders of the debt securities of the series
will not recognize income, gain or loss for federal income
tax purposes as a result of the covenant defeasance.
Effect of Discharge and Defeasance. Under federal income tax law as of
the date of this prospectus, a discharge may be treated as an exchange of the
related debt securities. Each holder might be required to recognize gain or loss
equal to the difference between the holder's cost or other tax basis for the
debt securities and the value of the holders' interest in the trust. Holders
might be required to include as income a different amount than would be
includable without the discharge. Prospective investors are urged to consult
their own tax advisors as to the tax consequences of a discharge including the
applicability and effect of tax laws other than federal income tax law.
CERTAIN COVENANTS
Under the Indentures, Grey Wolf agrees that it 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 our 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
(Indentures, Sections 1001, 1002, 1003 and 1005).
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<PAGE> 23
Any respective covenants applicable to any series of debt securities
will be described in an applicable prospectus supplement.
CONSOLIDATION, MERGER AND SALE OF ASSETS
We will only consolidate or merge with or into any other entity or sell
all or substantially all of our assets according to the terms and conditions of
the indentures. If Grey Wolf sells all or substantially all of its assets, it
shall be released from all of its liabilities and obligations under any
indenture and under the debt securities. The remaining or acquiring entity will
be substituted for Grey Wolf in the indentures and shall assume all of our
responsibilities and liabilities under the indentures including the payment of
all amounts due on the debt securities and performance of the covenants with the
same effect as if it had been an original party to the indentures. Thereafter,
the successor entity may exercise Grey Wolf's rights and powers under the
indentures, in Grey Wolf's name or in its own name. Any act or proceeding
required or permitted to be done by Grey Wolf's board of directors or any of its
officers may be done by the board or officers of the successor entity
(Indentures, Sections 801 and 802).
PAYMENT AND TRANSFER
Grey Wolf will pay principal and any premium and interest on registered
securities at the corporate trust office of the trustee or at any other office
or agency maintained by us for such purpose. We may choose to make any interest
payment on a registered security (a) by check mailed to the address of the
holder as such address shall appear in the register or (b) if provided in the
prospectus supplement, by wire transfer to an account maintained by the holder
as specified in the register. We will make interest payments to the person in
whose name the debt security is registered at the closing of business on the
days specified by the indenture or in any applicable prospectus supplement.
Payments on debt securities in other forms will be paid at a place designated by
us and specified in a prospectus supplement (Indentures, Section 307).
Fully registered securities may be transferred or exchanged at the
corporate trust office of the trustee or at any other office or agency
maintained by us for such purposes, without the payment of any service charge
except any tax or governmental charge (Indentures, Sections 305 and 1002).
GLOBAL SECURITIES
Debt securities of a series may be issued in the form of one or more
permanent global debt securities that will be deposited with a depositary
designated in the prospectus supplement or its nominee. Unless otherwise
indicated in the prospectus supplement, the following is a summary of the
depositary arrangements applicable to debt securities issued in permanent global
form and for which The Depositary Trust Company ("DTC") acts as depositary.
Each global debt security will be deposited with, or on behalf of, DTC,
as depositary, or its nominee and registered in the name of a nominee of DTC.
Except under the limited circumstances described below, global debt securities
are not exchangeable for definitive certificated debt securities.
Ownership of beneficial interests in a global debt security is limited
to institutions that have accounts with DTC or its nominee, (participants), or
persons that may hold interests through participants. In addition, ownership of
beneficial interests by participants in a global debt security will be evidenced
only by, and the transfer of that ownership interest will be effected only
through; records maintained by DTC or its nominee. Ownership of beneficial
interests in a global debt security by persons that hold through participants
will be evidenced only by, and the transfer of that ownership interest within
that participant will be effected only through, records maintained by that
participant. DTC has no knowledge of the actual beneficial owners of the debt
securities. Beneficial owners will not receive written
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<PAGE> 24
confirmation from DTC of their purchase, but beneficial owners are expected to
receive written confirmations providing details of the transaction, as well as
periodic statements of their holdings, from the participants through which the
beneficial owners entered the transaction. The laws of some jurisdictions
require that certain purchasers of securities take physical delivery of such
securities in definitive form. Such laws may impair the ability to transfer
beneficial interests in a global debt security.
Payment of principal of, and interest on, debt securities represented
by a global debt security registered in the name of or held by DTC or its
nominee will be made to DTC or its nominee, as the case may be, as the
registered owner and holder of the global debt security representing those debt
securities. We have been advised by DTC that upon receipt of any payment of
principal of, or interest on, a global debt security, DTC will immediately
credit accounts of participants on its book-entry registration and transfer
system with payments in amounts proportionate to their respective beneficial
interests in the principal amount of that global debt security as shown in the
records of DTC. Payments by participants to owners of beneficial interests in a
global debt security held through those participants will be governed by
standing instructions and customary practices, as is now the case with
securities held for the accounts of customers in bearer form or registered in
"street name", and will be the sole responsibility of those participants,
subject to any statutory or regulatory requirements that may be in effect from
time to time.
Neither we, any trustee nor any of our respective agents will be
responsible for any aspect of the records of DTC, any nominee or any participant
relating to, or payments made on account of, beneficial interests in a permanent
global debt security or for maintaining, supervising or reviewing any of the
records of DTC, any nominee or any participant relating to such beneficial
interests.
A global debt security is exchangeable for definitive debt securities
registered in the name of, and a transfer of a global debt security may be
registered to, any person other than DTC or its nominee, only if:
o DTC notifies us that it is unwilling or unable to continue
as depositary for that global debt security or at any time
DTC ceases to be registered under the Securities Exchange
Act of 1934;
o we determine in our discretion that the global debt security
shall be exchangeable for definitive debt securities in
registered form; or
o there shall have occurred and be continuing an event of
default or an event which, with notice or the lapse of time
or both, would constitute an event of default under the debt
securities.
Any global debt security that is exchangeable pursuant to the preceding
sentence will be exchangeable in whole for definitive debt securities in
registered form, of like tenor and of an equal aggregate principal amount as the
global debt security, in denominations specified in the applicable prospectus
supplement (if other than $1,000 and integral multiples of $1,000). The
definitive debt securities will be registered by the registrar in the name or
names instructed by DTC. We expect that these instructions may be based upon
directions received by DTC from its participants with respect to ownership of
beneficial interests in the global debt security.
Except as provided above, owners of the beneficial interests in a
global debt security will not be entitled to receive physical delivery of debt
securities in definitive form and will not be considered the holders of debt
securities for any purpose under the indentures. No global debt security shall
be exchangeable except for another global debt security of like denomination and
tenor to be registered in
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the name of DTC or its nominee. Accordingly, each person owning a beneficial
interest in a global debt security must rely on the procedures of DTC and, if
that person is not a participant, on the procedures of the participant through
which that person owns its interest, to exercise any rights of a holder under
the global debt security or the Indentures.
We understand that, under existing industry practices, in the event
that we request any action of holders, or an owner of a beneficial interest in a
global debt security desires to give or take any action that a holder is
entitled to give to take under the debt securities or the Indentures, DTC would
authorize the participants holding the relevant beneficial interests to give or
take that action, and those participants would authorize beneficial owners
owning through those participants to give or take that action or would otherwise
act upon the instructions of beneficial owners owning through them.
DTC has advised us that DTC is a limited purpose trust company
organized under the laws of the State of New York, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Uniform
Commercial Code and a "clearing agency" registered under the Exchange Act. DTC
was created to hold securities of its participants and to facilitate the
clearance and settlement of securities transactions among its participants in
those securities through electronic book-entry changes in accounts of the
participants, thereby eliminating the need for physical movement of securities
certificates. DTC's participants include securities brokers and dealers, banks,
trust companies, clearing corporations and certain other organizations. DTC is
owned by a number of its participants and by the New York Stock Exchange, Inc.,
the American Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc. Access to DTC's book-entry system is also available to others,
such as banks, brokers, dealers and trust companies that clear through or
maintain a custodial relationship with a participant, either directly or
indirectly. The rules applicable to DTC and its participants are on file with
the SEC.
DESCRIPTION OF OTHER INDEBTEDNESS
Certain of Grey Wolf's existing debt instruments impose, and future
debt instruments may impose, certain restrictions on Grey Wolf, including
restrictions on the payment of dividends and certain business combinations, and
require Grey Wolf to maintain certain financial ratios.
THE 8 7/8% SENIOR NOTES DUE 2007
Grey Wolf has $250.0 million principal amount of 8 7/8% Senior Notes
outstanding. The 8 7/8% Senior Notes were issued in two offerings. Grey Wolf
issued $175.0 million in principal amount of 8 7/8% Senior Notes in June 1997
and $75.0 million in May 1998. The 8 7/8% Senior Notes mature on July 1, 2007.
Interest on the 8 7/8% Senior Notes is payable semi-annually on January 1 and
July 1 of each year. The 8 7/8% Senior Notes are redeemable at the option of
Grey Wolf, in whole or in part, at any time on or after July 1, 2002, initially
at 104.4375% and at decreasing prices thereafter to 100% at maturity, in each
case together with accrued and unpaid interest. The 8 7/8% Senior Notes also may
be repurchased at the option of the holder at 101%, together with accrued and
unpaid interest, any time if there is a change in control, as defined in the
applicable indenture.
CIT CREDIT FACILITY
As of January 14, 1999, Grey Wolf entered into a senior secured
revolving credit facility with the CIT Group/Business Credit, Inc. This facility
provides us with the ability to borrow up to the lessor of $50.0 million or 50%
of the orderly liquidation value ("OLV"), as defined in the facility, of
marketable drilling rig equipment located in the 48 contiguous states of the
United States. The initial term of the facility expires on January 14, 2003,
with automatic annual renewals thereafter unless terminated by the
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lender on any subsequent anniversary date and then only upon 60 days prior
notice. We can use up to $10.0 million of the available credit for letters of
credit. The amount used for letters of credit decreases our ability to borrow
under the facility by the amounts of such letters of credit. Interest under the
facility accrues at a variable rate, using, at Grey Wolf's election, either
prime plus 0.25% to 1.50% or LIBOR plus 1.75% to 3.50%, depending upon our debt
service coverage ratio for the trailing 12 month period. During the first year
of the facility, the interest rate is fixed at LIBOR plus 2.50% or prime plus
1.00%. Letters of credit accrue a fee of 1.25% per annum and we pay a commitment
fee of 0.375% per annum on the average unused portion of the lender's
commitments. Indebtedness under the facility is secured by an exclusive security
interest in substantially all of our and our domestic subsidiaries' assets. We
and certain of our wholly-owned subsidiaries have also guaranteed the
indebtedness under the facility. We, however, retain the option, subject to a
minimum appraisal value, to extract $75.0 million of the equipment out of the
collateral pool for other purposes. As of August 31, 1999, Grey Wolf had no
borrowings outstanding under the facility and had used $3.5 million for letters
of credit.
DESCRIPTION OF CAPITAL STOCK
GENERAL
As of August 31, 1999 Grey Wolf's authorized capital stock consisted of
300,000,000 shares of common stock, par value $.10 per share, of which
165,158,791 shares were outstanding, and 1,000,000 shares of preferred stock,
par value $1.00 per share, of which none are outstanding. As of that date, Grey
Wolf also had approximately 7.2 million shares of common stock reserved for
issuance upon exercise of options or in connection with other awards outstanding
under various employee or director incentive, compensation and option plans.
The following summary is not complete. You should refer to the
applicable provisions of Grey Wolf's amended and restated Articles of
Incorporation, and the documents we have incorporated by reference for a
complete statement of the terms and rights of our capital stock.
COMMON STOCK
Voting Rights. Each share of common stock is entitled to one vote per
share. Holders of common stock are not entitled to cumulative voting rights,
which means that the holders of more than 50% of the shares voting for the
election of directors can elect 100% of the directors.
Dividends. Holders may receive dividends when declared by the board of
directors out of legally available funds. Dividends may be paid in cash, stock
or other form subject to the rights of holders of any preferred stock. If we
issue preferred stock, holders of common stock may not receive dividends until
we have satisfied our obligations to the holders of outstanding preferred stock.
Rights Upon Liquidation. If we liquidate, dissolve or wind-up our
business, either voluntarily or not, the holders of common stock will be
entitled to share equally in any remaining assets after we pay our creditors.
Miscellaneous. The issued and outstanding shares of common stock are
fully paid and nonassessable. Holders of shares of common stock are not entitled
to preemptive rights. Shares of common stock are not convertible into shares of
any other class of our capital stock. American Stock Transfer and Trust Company
is the transfer agent and registrar for the common stock.
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PREFERRED STOCK
The following description sets forth certain general terms and
provisions of our authorized preferred stock. If we offer preferred stock, the
particular terms will be described in the prospectus supplement.
The board of directors of Grey Wolf can, without shareholder approval,
issue from time to time one or more series of preferred stock. The board of
directors can also determine the voting powers, designations, preferences and
relative, participating, optional or other special rights and qualifications,
limitations or restrictions of any series and the number of shares constituting
any series of preferred stock.
Because Grey Wolf is a holding company, its rights and the rights of
holders of its securities, including the holders of preferred stock, to
participate in the distribution of the assets of any subsidiary of Grey Wolf
upon the subsidiary's liquidation or recapitalization will be subject to the
prior claims of the creditors and preferred stockholders of the subsidiary.
ANTI-TAKEOVER DEFENSES
Preferred stock purchase rights. Grey Wolf has a shareholder rights
plan which was adopted in 1998. Under this plan, one right is attached to each
outstanding share of common stock. The rights are exercisable only if a person
or group of affiliated or associated persons acquires beneficial ownership of
15% or more of the outstanding common stock or the commencement of or the
announcement to make a tender offer which would result in ownership by a person
or group of 15% or more of the outstanding common stock. Each right entitles the
registered holder to purchase from Grey Wolf one-thousandth of a share of Series
B Junior Participating Preferred Stock, par value $1.00 per share, at an
exercise price of $11.00 per one one-thousandth of a share. The rights expire
September 18, 2008, unless the expiration date is extended. The existence of the
rights may, under certain circumstances, make it more difficult or discourage
attempts to acquire us.
Certain Provisions of our Amended and Restated Articles of
Incorporation and Bylaws. Certain provisions in our amended and restated
Articles of Incorporation and amended and restated Bylaws could have the effect
of delaying, deferring or preventing a change in control or the removal of our
existing management or deterring potential acquirors from making an offer to our
shareholders. These provisions provide that:
o shareholders may not act by less than unanimous written
consent;
o special meetings of shareholders may be called by
shareholders only upon request of holders of at least 50% of
the shares entitled to vote at the meeting;
o the board of directors has the exclusive authority to adopt,
amend or repeal our Bylaws and shareholders may not do so;
o the board of directors be divided into three classes, with
each class serving a staggered three year term; and
o shareholders must give us advance notice of their intent to
submit a proposal for action at the annual meeting.
Additionally, the board of directors' ability to issue shares of
preferred stock without shareholder approval may be used to discourage an
unsolicited acquisition proposal. For instance, the issuance of a
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series of preferred stock might impede a business combination by including
voting rights that would require the approval of a percentage of the preferred
stockholders.
DESCRIPTION OF DEPOSITARY SHARES
GENERAL
We may, at our option, elect to offer fractional shares of preferred
stock, rather than full shares of preferred stock. If we do, we will issue to
the public receipts for depositary shares, and each of these depositary shares
will represent a fraction of a share of a particular series of preferred stock.
We will specify that fraction in the prospectus supplement.
The shares of any series of preferred stock underlying the depositary
shares will be deposited under a deposit agreement between us and a depositary
selected by us. Subject to the terms of the deposit agreement, each owner of a
depositary share will be entitled, in proportion to the applicable fractional
interest in shares of preferred stock underlying that depositary share, to all
the rights and preferences of the preferred stock underlying that depositary
share. Those rights include dividend, voting, redemption, subscription and
liquidation rights.
The depositary shares will be evidenced by depositary receipts issued
under the deposit agreement. We will issue depositary receipts to those persons
who purchase the fractional interests in the preferred stock underlying the
depositary shares, in accordance with the terms of the offering.
The following summary of the deposit agreement, the depositary shares
and the depositary receipts is not complete. You should refer to the forms of
the deposit agreement and depositary receipts that are filed as exhibits to the
registration statement.
Dividends and Other Distributions. The depositary will distribute all
cash dividends or other cash distributions received in respect of the preferred
stock to the record holders of related depositary shares in proportion to the
number of depositary shares owned by those holders.
If we make a distribution other than in cash, the depositary will
distribute property received by it to the record holders of depositary shares
that are entitled to receive the distribution, unless, after consulting with the
depositary, we determine that it is not feasible to make the distribution. If
this occurs, the depositary may sell the property and distribute the net
proceeds from the sale to the applicable holders.
Redemption of Depositary Shares. Whenever we redeem shares of preferred
stock that are held by the depositary, the depositary will redeem, as of the
same redemption date, the number of depositary shares representing the shares of
preferred stock so redeemed. The redemption price per depositary share will be
equal to the applicable fraction of the redemption price per share payable with
respect to that series of the preferred stock. If fewer than all the depositary
shares are to be redeemed, the depositary will select the depositary shares to
be redeemed by lot, pro rata or by another equitable method.
Depositary shares called for redemption will no longer be outstanding
after the applicable redemption date, and all rights of the holders of those
depositary shares will cease, except the right to receive any money, securities,
or other property upon surrender to the depositary of the depositary receipts
evidencing those depositary shares.
Withdrawal of Preferred Stock. Any holder of depositary shares may
receive, upon surrender of the corresponding depositary receipts to the
depositary, the number of whole shares of underlying preferred stock and any
money or other property represented by the surrendered depositary receipts.
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Holders of depositary shares that surrender their depositary receipts will be
entitled to receive whole shares of preferred stock as set forth in the related
prospectus supplement. However, holders of whole shares of preferred stock will
not be entitled to subsequently deposit those shares of preferred stock under
the deposit agreement or to exchange the whole shares of preferred stock for
depositary receipts. Whenever the number of depositary shares surrendered by a
holder in connection with a withdrawal exceed the number of depositary shares
underlying the preferred stock to be withdrawn, then the depositary will deliver
to that holder a new depositary receipt evidencing the excess number of
depositary shares.
Voting the Preferred Stock. Upon receipt of a notice of any meeting at
which the holders of a series of preferred stock are entitled to vote, the
depositary will mail the information contained in the notice of meeting to the
record holders of the depositary shares underlying the preferred stock. Each
record holder of the depositary shares on the record date (which will be the
same date as the record date for the preferred stock) will be entitled to
instruct the depositary to exercise the voting rights pertaining to the amount
of the preferred stock underlying that holder's depositary shares. The
depositary will try as far as practicable, to vote the number of shares of
preferred stock underlying those depositary shares in accordance with those
instructions, and Grey Wolf will agree to take all reasonable action which the
depositary deems necessary in order to enable the depositary to do so. The
depositary will not vote the shares of preferred stock to the extent that it
does not receive specific instructions from the holders of depositary shares
underlying the preferred stock.
Resignation and Removal of Depositary. The depositary may resign at any
time by delivering notice to us of its election to do so. We may remove the
depositary at any time. Any such resignation or removal will take effect upon
the appointment of a successor depositary and its acceptance of its appointment.
We must appoint a successor depositary within 45 days after delivery of the
notice of resignation or removal and such successor must be a bank or trust
company, or an affiliate of a bank or trust company, having its principal office
in the United States and having a combined capital and surplus of at least
$50,000,000.
Amendment and Termination of the Deposit Agreement. We and the
depositary may amend the form of depositary receipt evidencing the depositary
shares and any provision of the deposit agreement at any time. Any amendment
that imposes fees, taxes or other charges to the holders of depositary shares or
that materially and adversely alters the rights of the holders of depositary
shares will not be effective until 90 days after notice of the amendment has
been mailed to the record holders of the depositary shares then outstanding.
Once any amendment becomes effective, every holder of depositary shares will be
bound to the deposit agreement. However, we may not amend the form of deposit
agreement to prevent any holders of depositary shares from receiving shares of
the underlying preferred stock or any money or property that the holder may be
entitled to receive if the holder surrenders the depositary shares according to
the terms of the deposit agreement. If we decide to terminate the deposit
agreement, then within at least 30 days before the termination date, depositary
will mail notice of termination to the record holders of the depositary shares
then outstanding. If we have not appointed a successor depositary within 45 days
after depositary sends notice of resignation, the depositary may terminate the
deposit agreement.
If any depositary receipts remain outstanding after the date of
termination, the depositary will:
o discontinue the transfer of depositary receipts;
o will suspend the distribution of dividends to the holders of
depositary receipts; and
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o will not give any further notices (other than notice of
termination) or perform any further acts under the deposit
agreement.
However, the depositary will continue (1) to collect dividends and any
other distributions on the preferred stock and (2) to deliver the preferred
stock, together with the corresponding dividends and distributions and the net
proceeds of any sales of rights, preferences, privileges or other property in
exchange for depositary receipts surrendered. At any time after two years from
the date of termination, the depositary may sell the preferred stock then held
by it at public or private sales, at such place or places and upon such terms as
it deems proper, and may hold the net proceeds of any sale, together with any
money and other property then held by it for the pro rata benefit of the holders
of depositary receipts which have not been surrendered.
Charges of Depositary. We will pay charges of the depositary in
connection with the initial deposit of the preferred stock, all withdrawals of
preferred stock by owners of depositary shares, any redemption of the preferred
stock and the distribution of information to holders of depositary shares.
Holders of depositary receipts will be required to pay transfer and other taxes
and governmental charges and such other charges as are expressly provided in the
deposit agreement to be for their accounts.
Miscellaneous. The depositary will be required to forward to holders of
depositary receipts all reports and communications from us that we deliver to
the depositary and that we are required to furnish to the holders of the
preferred stock.
Neither we nor the depositary will be liable if either of us is
prevented or delayed by law or any circumstance beyond our control in performing
our respective obligations under the deposit agreement. Our obligations and
those of the depositary will be limited to performing in good faith our
respective duties under the deposit agreement. Neither we nor the depositary
will be obligated to prosecute or defend any legal proceeding relating to any
depositary shares or preferred stock unless satisfactory indemnity is furnished.
We and the depositary may rely upon written advice of counsel or accountants, or
upon information provided by persons presenting preferred stock for deposit,
holders of depositary receipts or other persons we believe to be competent and
on documents we believe to be genuine.
DESCRIPTION OF PERMANENT GLOBAL PREFERRED SECURITIES.
Certain series of the preferred stock or depositary shares may be
issued as permanent global securities to be deposited with a depositary with
respect to that series. Unless otherwise indicated in the prospectus supplement,
the summary of the depositary arrangements applicable to debt securities will
also be applied to preferred stock or depositary receipts issued in permanent
global form and for which DTC acts as the depositary.
DESCRIPTION OF WARRANTS
GENERAL
We may issue warrants to purchase debt securities, preferred stock, or
common stock. We may issue warrants independently or together with any other
securities we offer pursuant to a prospectus supplement and the warrants may be
attached to or separate from the securities. We will issue each series of
warrants under a separate warrant agreement that we will enter into with a bank
or trust company, as warrant agent. We will describe additional terms of the
warrants and the applicable warrant agreements in the applicable prospectus
supplement.
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DEBT WARRANTS
We will describe in the applicable prospectus supplement the terms of
the debt warrants being offered, the warrant agreement relating to the debt
warrants and the debt warrant certificates representing the debt warrants, which
may include the following:
o the title of the debt warrants;
o the price or prices at which the debt warrants will be
issued;
o the aggregate number of the debt warrants;
o the designation and terms of the debt securities purchasable
upon exercise of the debt warrants, and the procedures and
conditions relating to the exercise of the debt warrants;
o the designation and terms of any related debt securities
with which the debt warrants are issued, and the number of
the debt warrants issued with each security;
o the date, if any, on and after which the debt warrants and
the related debt securities will be separately transferable;
o the principal amount of debt securities purchasable upon
exercise of each debt warrant, and the price at which the
principal amount of the debt securities may be purchased
upon exercise;
o the date on which the right to exercise the debt warrants
will commence, and the date on which the right will expire;
o the maximum or minimum number of the debt warrants which may
be exercised at any time;
o 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
or bearer form;
o information with respect to book-entry procedures, if any;
o the currency or currency units in which the offering price,
if any, and the exercise price are payable;
o a discussion of the material United States federal income
tax considerations applicable to the exercise of the debt
warrants;
o the antidilution provisions of the debt warrants, if any;
o the redemption or call provisions, if any, applicable to the
debt warrants; and
o any other terms of the debt warrants, including terms,
procedures and limitations relating to the exercise of the
debt warrants.
Holders may exchange debt warrant certificates for new debt warrant
certificates of different denominations, and may exercise debt warrants at the
corporate trust office of the warrant agent or any other office indicated in the
applicable prospectus supplement. Prior to the exercise of their debt
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warrants, holders of debt warrants will not have any of the rights of holders of
the securities purchasable upon the exercise and will not be entitled to
payments principal, premium or interest on the securities purchasable upon the
exercise.
STOCK WARRANTS
We will describe in the applicable prospectus supplement the terms of
the preferred stock warrants or common stock warrants being offered, which may
include the following:
o the title of the warrants;
o the price or prices at which the warrants will be issued;
o the aggregate number of the warrants issued;
o the designation and terms of the preferred stock or common
stock for which the warrants are exercisable;
o if applicable, the designation and terms of the preferred
stock or common stock with which the warrants are issued and
the number of the warrants issued with each share of
preferred stock or common stock;
o if applicable, the date on and after which the warrants and
the related preferred stock or common stock will be
separately transferable;
o the number of shares of preferred stock or common stock
purchasable upon exercise of the warrants and the exercise
price of the warrants;
o the date on which the right to exercise the warrants will
commence, and the date on which the right will expire;
o the maximum or minimum number of the warrants which may be
exercised at any time;
o the currency or currency units in which the offering price,
if any, and the exercise price are payable;
o if applicable, a discussion of the material United States
federal income tax considerations applicable to the exercise
of the warrants;
o any antidilution provisions of the warrants;
o any redemption or call provisions applicable to the
warrants; and
o any other terms of the warrants, including terms, procedures
and limitations relating to the exchange and exercise of the
warrants.
EXERCISE OF WARRANTS
Each warrant will entitle the holder of the warrant to purchase for
cash at the exercise price set forth in the applicable prospectus supplement the
principal amount of debt securities or shares of preferred stock or common stock
being offered. Holders may exercise warrants at any time up to the close of
business on the expiration date set forth in the applicable prospectus
supplement. After the close of business on the expiration date, unexercised
warrants are void.
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Holders may exercise warrants as set forth in the prospectus supplement
relating to the warrants being offered. Upon receipt of payment and the warrant
certificate properly completed and duly executed at the corporate trust office
of the warrant agent or any other office indicated in the prospectus supplement,
we will, as soon as practicable, forward the debt securities or shares of
preferred stock or common stock purchasable upon the exercise of the warrant. If
less than all of the warrants represented by the warrant certificate are
exercised, we will issue a new warrant certificate for the remaining warrants.
MODIFICATIONS
The warrant agreements and the terms of the warrants may be amended by
us and the warrant agent, without the consent of the holders of warrants, for
the purpose of curing any ambiguity, or of curing, correcting or supplementing
any defective or inconsistent provision contained in a warrant agreement, or in
any other manner which we may deem necessary or desirable and which will not
materially and adversely affect the interests of holders of outstanding
warrants.
We and the warrant agent also may modify or amend certain other terms
of the warrant agreements and the warrants with the consent of the holders of
not less than a majority in number of the then-outstanding unexercised warrants
affected. However, no such modification or amendment may be made without the
consent of the affected holders if the amendment would:
o shorten the period of time during which the warrants may be
exercised;
o otherwise materially and adversely affect the exercise
rights of the holders of the warrants; or
o reduce the number of outstanding warrants.
MERGER, CONSOLIDATION OR SALE OF ASSETS
If at any time we merge, consolidate, or sell substantially all of our
assets which results in securities underlying the warrants to be converted into
the right to receive stock, securities or other property, then each outstanding
warrant will thereafter only be exercisable for the kind and amount of stock,
securities or other property receivable upon the consummation of that
transaction by a holder of the number of securities underlying the warrant.
ENFORCEABILITY OF RIGHTS BY HOLDERS
The warrant agent will act solely as our agent in connection with the
issuance and exercise of any warrants. The warrant agent will have no duty or
responsibility in case of any default by us in the performance of its
obligations under the warrant agreements or the warrant certificates. Each
holder of warrants may, without the consent of the warrant agent, enforce by
appropriate legal action, on its own behalf, its right to exercise its warrants.
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PLAN OF DISTRIBUTION
We may sell our securities from time to time through agents,
underwriters or dealers or directly to purchasers, in one or more transactions
at a fixed price or prices, which may be changed, or at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or at
negotiated prices.
By Agents
We may designate agents to solicit offers to purchase our securities.
o We will name any agent involved in offering or selling our
securities and any commissions that we will pay to the agent
in the prospectus supplement.
o Unless we indicate otherwise in the prospectus supplement,
our agents will act on a best efforts basis for the period
of their appointment.
o Our agents may be deemed to be underwriters under the
Securities Act of 1933 of any of our securities that they
offer or sell.
By Underwriters
We may use an underwriter or underwriters in the offer or sale of our
securities.
o If we use an underwriter or underwriters, the offered
securities will be acquired by the underwriters for their
own account.
o We will include the names of the specific managing
underwriter or underwriters, as well as any other
underwriters, and the terms of the transactions, including
the compensation the underwriters and dealers will receive,
in the prospectus supplement.
o The underwriters will use this prospectus and the prospectus
supplement to sell our securities.
We may also sell securities pursuant to one or more standby agreements
with one or more underwriters in connection with the call, redemption or
exchange of a specified class or series of any outstanding securities of Grey
Wolf. In a standby agreement, the underwriter or underwriters would agree
either:
o to purchase from Grey Wolf up to the number of shares of
common stock that would be issuable upon conversion or
exchange of all the shares of the class or series of
securities of Grey Wolf at an agreed price per share of
common stock; or
o to purchase from Grey Wolf up to a specified dollar amount
of offered securities at an agreed price per offered
security, which price may be fixed or may be established by
formula or other method and which may or may not relate to
market prices of the common stock or any other outstanding
security of Grey Wolf.
The underwriter or underwriters would also agree, if applicable, to
convert or exchange any securities of the class or series held or purchased by
the underwriter or underwriters into or for common
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stock or other security of Grey Wolf. The underwriter or underwriters may assist
in the solicitation of conversions or exchanges by holders of the class or
series of securities.
By Dealers
We may use a dealer to sell our securities.
o If we use a dealer, we, as principal, will sell our
securities to the dealer.
o The dealer will then resell our securities to the public at
varying prices that the dealer will determine at the time it
sells our securities.
o We will include the name of the dealer and the terms of our
transactions with the dealer in the prospectus supplement.
By Delayed Delivery Contracts
We may authorize our agents and underwriters to solicit offers by
certain institutions to purchase our securities at the public offering price
under delayed delivery contracts.
o If we use delayed delivery contracts, we will disclose that
we are using them in the prospectus supplement and will tell
you when we will demand payment and delivery of the
securities under the delayed delivery contracts.
o These delayed delivery contracts will be subject only to the
conditions that we set forth in the prospectus supplement.
o We will indicate in the prospectus supplement, the
commission that underwriters and agents soliciting purchases
of our securities under delayed delivery contracts will be
entitled to receive.
We may directly solicit offers to purchase our securities, and we may
directly sell our securities to institutional or other investors. We will
describe the terms of our direct sales in the prospectus supplement. We may also
sell our securities upon the exercise of rights which we may issue.
GENERAL INFORMATION
Underwriters, dealers and agents that participate in the distribution
of our securities may be underwriters as defined in the Securities Act, and any
discounts or commissions they receive and any profit they make on the resale of
the offered securities may be treated as underwriting discounts and commissions
under the Securities Act. Any underwriters or agents will be identified and
their compensation described in a prospectus supplement. We may indemnify
agents, underwriters, and dealers against certain civil liabilities, including
liabilities under the Securities Act. Our agents, underwriters, and dealers, or
their affiliates, may be customers of, engage in transactions with or perform
services for us, in the ordinary course of business.
Representatives of the underwriters through whom our securities are
sold for public offering and sale may engage in over-allotment, stabilizing
transactions, syndicate short covering transactions and penalty bids in
accordance with the Regulation M under the Exchange Act. Over-allotment involves
syndicate sales in excess of the offering size, which creates a syndicate short
position. Stabilizing transactions permit bids to purchase the offered
securities so long as the stabilizing bids do not exceed a specified maximum.
Syndicate covering transactions involve purchases of the offered securities in
the open market after the distribution has been completed in order to cover
syndicate short positions. Penalty bids permit the representative of the
underwriters to reclaim a selling concession from a
32
<PAGE> 36
syndicate member when the offered securities originally sold by such syndicate
member are purchased in a syndicate covering transaction to cover syndicate
short positions. Such stabilizing transactions, syndicate covering transactions
and penalty bids may cause the price of the offered securities to be higher than
it would otherwise be in the absence of such transactions. These transactions
may be effected on a national securities exchange and, if commenced, may be
discontinued at any time.
LEGAL MATTERS
The legality of the securities will be passed upon for us by Porter &
Hedges, L.L.P., Houston, Texas. If the securities are being distributed in an
underwritten offering, certain legal matters will be passed for the underwriters
by counsel identified in the related prospectus supplement.
EXPERTS
The consolidated financial statements of Grey Wolf, Inc. as of December
31, 1998 and 1997, and for each of the years in the three-year period ended
December 31, 1998, have been incorporated by reference herein and in the
registration statement in reliance upon the report of KPMG LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
33
<PAGE> 37
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
Set forth below is an estimate of the amount of fees and expenses to be
incurred in connection with the issuance and distribution of the securities
registered hereby, other than underwriting discounts and commissions.
<TABLE>
<S> <C>
Registration Fee Under Securities Act.................... $ 55,600
Legal Fees and Expenses.................................. 200,000
Blue Sky Fees and Expenses............................... 20,000
Accounting Fees and Expenses............................. 60,000
Printing and Engraving Expenses.......................... 70,000
Miscellaneous Fees....................................... 94,400
--------
Total........................................... $500,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Article 1302-7.06 of the Texas Miscellaneous Corporation Laws
Act, the articles of incorporation of a Texas corporation may provide that a
director of that corporation shall not be liable, or shall be liable only to the
extent provided in the articles of incorporation, to the corporation or its
shareholders for monetary damages for acts or omissions in the director's
capacity as a director, except that the articles of incorporation cannot provide
for the elimination or limitation of liability of a director to the extent that
the director is found liable for:
o a breach of the director's duty of loyalty to the
corporation or its shareholders;
o acts or omissions not in good faith that constitute a breach
of duty of the director to the corporation or an act or
omission that involves intentional misconduct or a knowing
violation of the law;
o any transaction from which the director received an improper
benefit; or
o an act or omission for which the liability of a director is
expressly provided by an applicable statute.
Article Ten of our Articles of Incorporation, as amended, states that a
director is not liable to the company or its shareholders for monetary damages
except to the extent otherwise expressly provided by the statutes of the State
of Texas.
In addition, Article 2.02-1 of the Texas Business Corporation Act (the
"TBCA") authorizes a Texas corporation to indemnify a person who was, is, or is
threatened to be made a named defendant or respondent in a proceeding, including
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative, arbitrative, or investigative because the person is or
was a director.
II-1
<PAGE> 38
The TBCA provides that unless a court of competent jurisdiction
determines otherwise, indemnification is permitted only if it is determined that
the person:
o conducted himself in good faith;
o reasonably believed (a) in the case of conduct in his
official capacity as a director of the corporation, that his
conduct was in the corporation's best interests; and (b) in
all other cases, that his conduct was at least not opposed
to the corporation's best interests; and
o in the case of any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful.
A person may be indemnified under Article 2.02-1 of the TBCA against:
o judgments;
o penalties (including excise and similar taxes);
o fines;
o settlements; and
o reasonable expenses actually incurred by the person
(including court costs and attorneys' fees).
However, if the person is found liable to the corporation or is found
liable on the basis that personal benefit was improperly received by him, the
indemnification is limited to reasonable expenses actually incurred and shall
not be made in respect of any proceeding in which the person has been found
liable for willful or intentional misconduct in the performance of his duty to
the corporation. A corporation is obligated under Article 2.02-1 of the TBCA to
indemnify a director or officer against reasonable expenses incurred by him in
connection with a proceeding in which he is named defendant or respondent
because he is or was a director or officer if he has been wholly successful, on
the merits or otherwise, in the defense of the proceeding.
Under Article 2.02-1 of the TBCA a corporation may:
o indemnify and advance expenses to an officer, employee,
agent or other persons who are or were serving at the
request of the corporation as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar
functionary of another entity to the same extent that it may
indemnify and advance expenses to its directors;
o indemnify and advance expenses to directors and such other
persons set forth above to such further extent, consistent
with law, as may be provided in the corporation's articles
of incorporation, bylaws, action of its board of directors,
or contract or as permitted by common law; and
o purchase and maintain insurance or another arrangement on
behalf of directors and such other persons set forth above
against any liability asserted against him and incurred by
him in such a capacity or arising out of his status as such
a person.
II-2
<PAGE> 39
The Bylaws of the company set forth specific provisions for
indemnification of directors, officers, agents and other persons which are
substantially identical to the provisions of Article 2.02-1 of the TBCA
described above.
The company maintains directors' and officers' insurance. The company
has entered into agreements to indemnify certain of its executive officers
regarding liabilities that may result from such officer's service as an officer
or director of the company.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
EXHIBIT
NUMBER DESCRIPTION
------- -----------
*1.1 -- Form of Underwriting Agreement.
**4.1 -- Form of Senior Debt Securities Indenture.
**4.2 -- Form of Subordinated Debt Securities Indenture.
*4.3 -- Form of Stock Warrant Agreement, together with Form of
Warrant.
*4.4 -- Form of Debt Warrant Agreement, together with Form of
Warrant.
*4.5 -- Form of Warrant Agreement for warrants not attached to debt
or equity securities.
*4.7 -- Form of Deposit Agreement, together with form of Depositary
Receipt.
**5.1 -- Opinion of Porter & Hedges, L.L.P.
**12.1 -- Statement of computation of Ratios of Earnings to Fixed
Charges and Earnings to Fixed Charges and Preferred Stock
Dividends.
**23.1 -- Consent of KPMG LLP.
**23.2 -- Consent of Porter & Hedges, L.L.P. (included in Exhibit
5.1).
**24.1 -- Powers of Attorney (included on signature page).
*25.1 -- Statement of Eligibility of Trustee for the Senior Debt
Securities on Form T-1.
*25.2 -- Statement of Eligibility of Trustee for the Subordinated
Debt Securities on Form T-1.
- --------------
* To be filed by amendment.
** Filed herewith.
ITEM 17. UNDERTAKINGS
(a) The undersigned company hereby undertakes:
II-3
<PAGE> 40
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) to include any prospectus required by section
10(a)(3) of the Securities Act of 1933 (the "Securities Act");
(ii) 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 the
registration statement; and
(iii) to include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
provided, however, that clauses (i) and (ii) above do not apply if the
information required to be included in a post-effective amendment by
those clauses is contained in periodic reports filed by the undersigned
company pursuant to Section 13 of Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference into this
registration statement;
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the company's
annual report pursuant to Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the 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 company pursuant to the foregoing provisions, or otherwise the company
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by company of expenses incurred
or paid by a director, officer or controlling person of the company 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 company 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 company 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 a registration statement in
II-4
<PAGE> 41
reliance upon Rule 430A and contained in the form of prospectus filed
by the company pursuant to Rule 424(b)(1) or (4) or 497(h) under the
Securities Act shall be deemed to be part of the registration statement
as of the time it was declared effective; and
(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 company hereby undertakes to file an application
for the purposes of determining the eligibility of the trustee to act under
subsection (a) of section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under section 305(b)(2) of
the Trust Indenture Act.
II-5
<PAGE> 42
POWER OF ATTORNEY
Know all men by these presents, that each person whose signature
appears below, constitutes and appoints Thomas P. Richards, David W. Wehlmann
and Merrie S. Costley and each of them, our true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, to do any and
all acts and things and execute, in the name of the undersigned, any and all
instruments which said attorneys-in-fact and agents may deem necessary or
advisable in order to enable Grey Wolf, Inc. to comply with the Securities Act
of 1933, as amended (the "Securities Act") and any requirements of the
Securities and Exchange Commission in respect thereof, in connection with the
filing with the Securities and Exchange Commission of the Registration Statement
on Form S-3 under the Securities Act, including specifically but without
limitation, power and authority to sign the name of the undersigned to such
Registration Statement, and any amendments to such Registration Statement
(including post-effective amendments and additional registration statements
filed pursuant to Rule 462 of the Securities Act), and to file the same with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, to sign any and all applications,
Registration Statements, notices or other documents necessary or advisable to
comply with applicable state securities laws, and to file the same, together
with other documents in connection therewith with the appropriate state
securities authorities, granting unto said attorneys-in-fact and agents, and
each of them, full power and authority to do and to perform each and every act
and thing requisite or necessary to be done in and about the premises, as fully
and to all intents and purposes as the undersigned might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, and
any of them, or their substitutes, may lawfully do or cause to be done by virtue
hereof.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 this 10th day of
September, 1999.
GREY WOLF, INC.
By: /s/ DAVID W. WEHLMANN
-----------------------------
David W. Wehlmann,
Senior Vice President and
Chief Financial Officer
II-6
<PAGE> 43
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed by the following persons in the capacities and on the
date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ THOMAS P. RICHARDS
- -------------------------------- Chairman of the Board, President September 10, 1999
Thomas P. Richards and Chief Executive Officer
/s/ WILLIAM R. ZIEGLER
- ------------------------------- Vice Chairman of the Board and September 10, 1999
William R. Ziegler Director
/s/ WILLIAM T. DONOVAN
- ------------------------------- Director September 10, 1999
William T. Donovan
/s/ JAMES K. B. NELSON
- ------------------------------- Director September 10, 1999
James K. B. Nelson
/s/ ROY T. OLIVER, JR.
- ------------------------------- Director September 10, 1999
Roy T. Oliver, Jr.
/s/ IVAR SIEM
- ------------------------------- Director September 10, 1999
Ivar Siem
/s/ STEVEN A. WEBSTER
- ------------------------------- Director September 10, 1999
Steven A. Webster
/s/ DAVID W. WEHLMANN
- ------------------------------- Senior Vice President and September 10, 1999
David W. Wehlmann Chief Financial Officer
/s/ MERRIE S. COSTLEY
- ------------------------------- Vice President and Controller September 10, 1999
Merrie S. Costley
</TABLE>
II-7
<PAGE> 44
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------- -----------
<S> <C> <C>
*1.1 -- Form of Underwriting Agreement.
**4.1 -- Form of Senior Debt Securities Indenture.
**4.2 -- Form of Subordinated Debt Securities Indenture.
*4.3 -- Form of Stock Warrant Agreement, together with Form of
Warrant.
*4.4 -- Form of Debt Warrant Agreement, together with Form of
Warrant.
*4.5 -- Form of Warrant Agreement for warrants not attached to debt
or equity securities.
*4.7 -- Form of Deposit Agreement, together with form of Depositary
Receipt.
**5.1 -- Opinion of Porter & Hedges, L.L.P.
**12.1 -- Statement of computation of Ratios of Earnings to Fixed
Charges and Earnings to Fixed Charges and Preferred Stock
Dividends.
**23.1 -- Consent of KPMG LLP.
**23.2 -- Consent of Porter & Hedges, L.L.P. (included in Exhibit
5.1).
**24.1 -- Powers of Attorney (included on signature page).
*25.1 -- Statement of Eligibility of Trustee for the Senior Debt
Securities on Form T-1.
*25.2 -- Statement of Eligibility of Trustee for the Subordinated
Debt Securities on Form T-1.
</TABLE>
- --------------
* To be filed by amendment.
** Filed herewith.
II-8
<PAGE> 1
EXHIBIT 4.1
================================================================================
GREY WOLF, INC.
AND
[TRUSTEE],
TRUSTEE
---------------------------------------------
INDENTURE
DATED AS OF
-------------------
DEBT SECURITIES
(SENIOR DEBT)
================================================================================
<PAGE> 2
GREY WOLF, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE DATED AS OF _________________
----------------------------------------
<TABLE>
<CAPTION>
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
- -------------- -------------
<S> <C> <C>
Section 310 (a)(1).......................................... 609
(a)(2).......................................... 609
(a)(3).......................................... Not Applicable
(a)(4).......................................... Not Applicable
(b)............................................. 608, 610
Section 311 (a)............................................. 613
(b)............................................. 613
(c)............................................. Not Applicable
Section 312 (a)............................................. 701, 702(a)
(b)............................................. 702(b)
(c)............................................. 702(c)
Section 313 (a)............................................. 703(a)
(b)............................................. 703(b)
(c)............................................. 703(c)
(d)............................................. 703(d)
Section 314 (a)............................................. 704, 1005
(b)............................................. Not Applicable
(c)(1).......................................... 103
(c)(2).......................................... 103
(c)(3).......................................... Not Applicable
(d)............................................. Not Applicable
(e)............................................. 103
Section 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
Section 316 (a)(1)(A)....................................... 502, 511
(a)(1)(B)....................................... 512
(a)(2).......................................... Not Applicable
(a)(last sentence).............................. 101
(b)............................................. 508
Section 317 (a)(1).......................................... 503
(a)(2).......................................... 504
(b)............................................. 1003
Section 318 (a)............................................. 108
</TABLE>
- ---------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
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................................................2
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...................................................3
interest....................................................4
Interest Payment Date.......................................4
Judgment Currency...........................................4
Maturity....................................................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........................................5
Redemption Date.............................................6
Redemption Price............................................6
</TABLE>
i
<PAGE> 4
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
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
Trustee.........................................................7
Trust Indenture Act.............................................7
U.S.............................................................7
U.S. Alien......................................................7
U.S. Government Obligations.....................................7
Vice President..................................................7
Wholly-Owned Subsidiary.........................................7
Yield to Maturity...............................................7
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 and Company.....................10
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......................................12
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally...........................................13
SECTION 202. Form of Trustee's Certificate of Authentication...........13
SECTION 203. Securities in Global Form.................................13
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series......................16
</TABLE>
ii
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 302. Denominations.............................................................................19
SECTION 303. Execution, Authentication, Delivery and Dating............................................19
SECTION 304. Temporary Securities......................................................................21
SECTION 305. Registration, Registration of Transfer and Exchange.......................................21
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities..........................................22
SECTION 307. Payment of Interest; Interest Rights Preserved............................................23
SECTION 308. Persons Deemed Owners.....................................................................24
SECTION 309. Cancellation..............................................................................25
SECTION 310. Computation of Interest...................................................................25
SECTION 311. CUSIP Numbers.............................................................................25
ARTICLE FOUR
SATISFACTION, DISCHARGE AND DEFEASANCE
SECTION 401. Satisfaction and Discharge of Indenture...................................................25
SECTION 402. Application of Trust Money................................................................27
SECTION 403. Discharge of Liability on Securities of Any Series........................................27
SECTION 404. Applicability of Defeasance Provisions; Company's Option to Effect Defeasance
or Covenant Defeasance................................................................28
SECTION 405. Defeasance and Discharge..................................................................28
SECTION 406. Covenant Defeasance.......................................................................29
SECTION 407. Conditions to Defeasance or Covenant Defeasance...........................................29
SECTION 408. Deposited Money and Government Obligations to be Held in Trust............................31
SECTION 409. Repayment to Company......................................................................31
SECTION 410. Indemnity for Government Obligations......................................................31
SECTION 411. Reinstatement.............................................................................31
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.........................................................................32
SECTION 502. Acceleration of Maturity; Rescission and Annulment........................................34
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee...........................35
SECTION 504. Trustee May File Proofs of Claim..........................................................36
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons....................37
SECTION 506. Application of Money Collected............................................................37
SECTION 507. Limitation on Suits.......................................................................38
SECTION 508. Unconditional Right of Holders to Receive Principal Premium and Interest..................38
SECTION 509. Restoration of Rights and Remedies........................................................38
SECTION 510. Rights and Remedies Cumulative............................................................39
SECTION 511. Delay or Omission Not Waiver..............................................................39
SECTION 512. Control by Holders........................................................................39
</TABLE>
iii
<PAGE> 6
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 513. Waiver of Past Defaults.....................................................39
SECTION 514. Undertaking for Costs.......................................................40
SECTION 515. Waiver of Stay or Extension Laws............................................40
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.........................................40
SECTION 602. Notice of Defaults..........................................................42
SECTION 603. Certain Rights of Trustee...................................................42
SECTION 604. Not Responsible for Recitals or Issuance of Securities......................43
SECTION 605. May Hold Securities.........................................................43
SECTION 606. Money Held in Trust.........................................................43
SECTION 607. Compensation and Reimbursement..............................................43
SECTION 608. Disqualification; Conflicting Interests.....................................44
SECTION 609. Corporate Trustee Required; Eligibility.....................................45
SECTION 610. Resignation and Removal; Appointment of Successor...........................45
SECTION 611. Acceptance of Appointment by Successor......................................47
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.................48
SECTION 613. Preferential Collection of Claims Against Company...........................48
SECTION 614. Appointment of Authenticating Agent.........................................48
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders...................50
SECTION 702. Preservation of Information; Communications to Holders......................50
SECTION 703. Reports by Trustee..........................................................51
SECTION 704. Reports by Company..........................................................51
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms........................52
SECTION 802. Successor Person Substituted................................................52
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........................................55
SECTION 904. Effect of Supplemental Indentures...........................................55
</TABLE>
iv
<PAGE> 7
<TABLE>
<CAPTION>
PAGE
----
<S> <C> <C>
SECTION 905. Conformity With Trust Indenture Act...................................................55
SECTION 906. Reference in Securities to Supplemental Indentures....................................55
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest............................................56
SECTION 1002. Maintenance of Office or Agency.......................................................56
SECTION 1003. Money for Securities Payments to be Held in Trust.....................................56
SECTION 1004. Existence.............................................................................58
SECTION 1005. Statement by Officers as to Default...................................................58
SECTION 1006. Waiver of Certain Covenants...........................................................58
SECTION 1007. Additional Amounts....................................................................59
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article..............................................................59
SECTION 1102. Election to Redeem; Notice to Trustee.................................................59
SECTION 1103. Selection by Trustee of Securities to be Redeemed.....................................60
SECTION 1104. Notice of Redemption..................................................................60
SECTION 1105. Deposit of Redemption Price...........................................................61
SECTION 1106. Securities Payable on Redemption Date.................................................61
SECTION 1107. Securities Redeemed in Part...........................................................62
SECTION 1108. Purchase of Securities................................................................62
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article..............................................................62
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.................................62
SECTION 1203. Redemption of Securities for Sinking Fund.............................................63
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called.............................................63
SECTION 1302. Call, Notice and Place of Meetings....................................................63
SECTION 1303. Persons Entitled to Vote at Meetings..................................................64
SECTION 1304. Quorum; Action........................................................................64
SECTION 1305. Determination of Voting Rights; Conduct and Adjournment of Meetings...................65
SECTION 1306. Counting Votes and Recording Action of Meetings.......................................65
</TABLE>
v
<PAGE> 8
INDENTURE, dated as of _______________, between GREY WOLF,
INC., a corporation duly organized and existing under the laws of the State of
Texas (herein called the "COMPANY"), having its principal office at 10370
Richmond Avenue, Suite 600, Houston, Texas 77042, and [TRUSTEE], a
______________________, 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 [TRUSTEE'S ADDRESS].
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 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 ONE have the meanings
assigned to them in this ARTICLE ONE 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 accounting principles as are generally
accepted in the United States at the date of such computation; and
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(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" is defined 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.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions are authorized or
obligated by law or executive
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order or regulation to close in New York, New York, and Houston, Texas, and when
used with respect to any Place of Payment, in that Place of Payment.
"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" is defined in SECTION 501.
"CORPORATE TRUST OFFICE" means the principal office of the
Trustee in [TRUSTEE'S CITY AND STATE] 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" is defined 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" is defined in SECTION 501.
"EXCHANGE RATE" is defined 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.
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"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.
"JUDGMENT CURRENCY" is defined 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.
"OFFICERS' CERTIFICATE" means a certificate signed by (a) the
Chairman of the Board, a Vice Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer or a Vice President, and (b)
the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, the
Controller, the Secretary or an Assistant Treasurer, Assistant Controller or
Assistant Secretary, of the Company (each an "OFFICER"), and delivered to the
Trustee, which certificate shall comply with SECTION 103.
"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.
"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 cancelled 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
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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 if the Maturity thereof
were accelerated on such date 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 clause (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
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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 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" is defined 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
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" is defined 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, or any other Person designated by such Trustee, or
such successor entity, to act as custodian with respect to the Securities of
such series.
"SECURITY REGISTER" and "SECURITY REGISTRAR" are defined 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.
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"SUBSIDIARY" means (a) 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, (b) a general partnership, joint venture or similar entity,
more than 50% of the outstanding partnership or similar interests of which is
owned, directly or indirectly, by the Company, or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries, or (c) a
limited partnership of which the Company or another Subsidiary is a general
partner. 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.
"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.
"U.S." 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.
"U.S. ALIEN" means any Person who, for U.S. 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" is defined in SECTION 401.
"VICE PRESIDENT" 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) 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, or (b) a general partnership, limited partnership, joint venture
or similar entity, all of the outstanding partnership or similar interests 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
U.S. 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
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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 105. 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 and Company.
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,
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(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration, or
(2) the Company 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: Chief Financial Officer.
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 or such other provision
hereof which is required to be included by any 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.
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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
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, Security
Registrar, Security Custodian and the Holders, any benefit or any legal or
equitable right, remedy or claim under this Indenture.
SECTION 113. Governing Law.
This Indenture 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 SECTIONS 301(10) and 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
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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 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
representations 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 nor 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 nor 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
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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 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
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<PAGE> 23
be surrendered to the Trustee for cancellation, and the Company shall execute,
and the Trustee shall authenticate and deliver, to each beneficial owner
identified by the Depositary in exchange for its beneficial interest in the
global Security, an equal aggregate principal amount of Securities of that
series of authorized denominations.
Neither the Company nor the Trustee will have any
responsibility or liability for any aspect of the records relating to, or
payments made on account of, Securities of any series by the Depositary, or for
maintaining, supervising or reviewing any records of the Depositary relating to
such Securities. Neither the Company nor the Trustee shall be liable for any
delay by the related global Security Holder or the Depositary in identifying the
beneficial owners, and each such Person may conclusively rely on, and shall be
protected in relying on, instructions from such global Security Holder or the
Depositary for all purposes (including with respect to the registration and
delivery, and the respective principal amounts, of the Securities to be issued).
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 nor
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 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 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.
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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);
(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
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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;
(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;
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(18) whether the Securities of the series are to be secured or
guaranteed;
(19) any restriction of condition on the transferability of
the Securities of the series;
(20) any Paying Agents, Security Registrars (if other than the
Trustee), conversion agents or other agents to be appointed by the
Company with respect to the Securities of the series; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to SECTION
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.
One Officer shall sign the Securities for the Company by
manual or facsimile signature.
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Securities bearing the manual or facsimile signatures of an
individual who was at any time an Officer shall bind the Company,
notwithstanding that such individual has ceased to hold such office prior to the
authentication and delivery of such Securities or did not hold such office 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.
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
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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 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.
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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.
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
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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 306,
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 306 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 306 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
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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 (1) 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 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 (2), such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this SECTION 307, 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.
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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 309, 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.
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, DISCHARGE AND DEFEASANCE
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
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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 401, 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;
(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
U.S. federal income tax purposes as a result of such deposit,
satisfaction and discharge and will be subject to U.S. 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
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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 U.S., or to the payment of which obligations or guarantees the full faith
and credit of the U.S. 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 401 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 401, 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.
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 403 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
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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 403 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.
SECTION 404. Applicability of Defeasance Provisions; Company's Option to Effect
Defeasance or Covenant Defeasance.
Except as otherwise specified as contemplated by SECTION 301
for the Securities of any series, the provisions of SECTIONS 404 through 410
inclusive, with such modifications thereto as may be specified pursuant to
SECTION 301 with respect to any series of Securities, shall be applicable to the
Securities.
SECTION 405. Defeasance and Discharge.
On and after the date on which the conditions set forth in
SECTION 407 are satisfied with respect to the Securities of any series, the
Company shall be deemed to have paid and been discharged from its obligations
with respect to such Securities (hereinafter "DEFEASANCE"). For this purpose,
such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities which shall
thereafter be deemed to be "OUTSTANDING" only for the purposes of SECTION 408
and the other Sections of this Indenture referred to in clause (ii) of this
SECTION 405, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, upon payment of all amounts due it under SECTION 607, at the expense of
the Company, shall on a Company Order execute proper instruments acknowledging
the same), except the following which shall survive until otherwise terminated
or discharged hereunder: (i) the rights of Holders of such Securities to
receive, solely from the trust funds described in SECTION 407(a) and as more
fully set forth in such
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SECTION 407(a), payments in respect of the principal of, premium, if any, and
interest, if any, on such Securities when such payments are due; (ii) the
Company's obligations with respect to such Securities under SECTIONS 305, 309,
1002 and 1003 and with respect to the payment of Additional Amounts, if any,
payable with respect to such Securities as specified pursuant to clause (13) of
SECTION 301; (iii) the Company's obligations with respect to a conversion or
exchange of such Securities; (iv) the rights, powers, trusts, duties and
immunities of the Trustee hereunder; and (v) this ARTICLE FOUR. Subject to
compliance with this ARTICLE FOUR, the Company may defease the Securities of any
series under this SECTION 405 notwithstanding a prior covenant defeasance (as
defined herein) under SECTION 406 with respect to such Securities. Following a
defeasance, payment of such Securities may not be accelerated because of an
Event of Default.
SECTION 406. Covenant Defeasance.
On and after the date on which the conditions set forth in
SECTION 407 (other than SECTION 407(c)) are satisfied with respect to the
Securities of or within any series, (i) the Company shall be released from its
obligations under SECTIONS 801 and 1004 and, if specified pursuant to SECTION
301, its obligations under any other covenant, with respect to such Securities
and (ii) the occurrence of any event specified in clauses (4) and (7) of SECTION
501 (with respect to any of the obligations described in clause (i) above) shall
be deemed not to be or result in an Event of Default (hereinafter, "COVENANT
DEFEASANCE"), and such Securities shall thereafter be deemed to be not
"OUTSTANDING" for the purposes of any request, demand, authorization, direction,
notice, waiver, consent or declaration or Act of Holders (and the consequences
of any thereof) in connection with SECTION 801 or SECTION 1004, such other
covenant specified pursuant to SECTION 301, but shall continue to be deemed
"OUTSTANDING" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Securities, the Company may omit to
comply with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or such other covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any such Section or
such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under clauses (4) and (7) of SECTION 501 or otherwise, as the case may be, but,
except as specified above the remainder of this Indenture and such Securities
and any interest coupons appertaining thereto shall be unaffected thereby.
SECTION 407. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of
SECTION 405 or SECTION 406 to any Securities of any series:
(a) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee (or another trustee satisfying the requirements of
SECTION 609 who shall agree to comply with, and shall be entitled to the
benefits of, the provisions of SECTIONS 404 through 410 inclusive and the last
paragraph of SECTION 1003 applicable to the Trustee, for purposes of such
Sections also a "TRUSTEE") as trust funds in trust for the purpose of making the
payments referred to in clauses (x) and (y) of this SECTION 407(a), specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of
such Securities, with written instructions to the Trustee as to the application
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thereof, (A) money in an amount (in such currency, currencies or currency unit
or units in which such Securities are then specified as payable at Stated
Maturity), or (B) if Securities of such series are not subject to repayment at
the option of Holders, Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment referred to
in clause (x) or (y) of this SECTION 407(A), money in an amount or (C) a
combination thereof in an amount, sufficient, in the opinion of a nationally
recognized firm of independent certified public accountants or a nationally
recognized investment banking firm expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee to pay and discharge, (x) the principal of, premium, if any, and
interest, if any, on such Securities on the Stated Maturity of such principal or
installment of principal or interest and (y) any mandatory sinking fund payments
applicable to such Securities on the date on which such payments are due and
payable in accordance with the terms of this Indenture and such Securities.
Before such a deposit the Company may make arrangements satisfactory to the
Trustee for the redemption of Securities at a future date or dates in accordance
with ARTICLE ELEVEN which shall be given effect in applying the foregoing.
(b) No Default or Event of Default with respect to the
Securities of that series shall have occurred or be continuing on the date of
such a deposit or shall occur as a result of such a deposit or, insofar as
clauses (5) and (6) of SECTION 501 are concerned, shall occur at any time during
the period ending on the 91st day after the date of such deposit.
(c) In the case of an election under SECTION 405, the Company
shall have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel to the effect that (i) the Company has received from or there has been
published by, the Internal Revenue Service a ruling, or (ii) since the date of
execution of this Indenture, there has been a change in the applicable U.S.
Federal income tax law, in either case to the effect that, and based thereon
such opinion shall confirm that, the Holders of such Securities and any interest
coupons appertaining thereto will not recognize income, gain or loss for U.S.
Federal income tax purposes as a result of such defeasance and will be subject
to U.S. Federal income tax on the same amount and in the same manner and at the
same times, as would have been the case if such deposit, defeasance and
discharge had not occurred.
(d) In the case of an election under SECTION 406, the Company
shall have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel to the effect that the Holders of such Securities and any interest
coupons appertaining thereto will not recognize income, gain or loss for U.S.
Federal income tax purposes as a result of such covenant defeasance and will b
subject to U.S. Federal income tax on the same amount and in the same manner and
at the same times, as would have been the case if such deposit and covenant
defeasance had not occurred.
(e) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under SECTION 405 or the covenant
defeasance under SECTION 406 (as the case may be) have been complied with.
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(f) Such defeasance or covenant defeasance shall be effected
in compliance with any additional or substitute terms, conditions or limitations
which may be imposed on the Company in connection therewith as contemplated by
SECTION 301.
(g) At the time of such deposit: (A) no Default in the payment
of principal of (or premium, if any) or interest on any Senior Debt shall have
occurred and be continuing or (B) no other Event of Default with respect to any
Senior Debt shall have occurred and be continuing and shall have resulted in
such Senior Debt becoming or being declared due and payable prior to the date on
which it would otherwise have become due and payable, or, in the case of either
clause (A) or clause (B) above, each such Default or Event of Default shall have
been cured or waived or shall have ceased to exist.
SECTION 408. Deposited Money and Government Obligations to be Held in Trust.
Subject to the provisions of the last paragraph of SECTION
1003, all money and Government Obligations (or other property as may be provided
pursuant to SECTION 301) (including the proceeds thereof) deposited with the
Trustee pursuant to SECTION 407 in respect of any Securities of any series shall
be held in trust and applied by the Trustee, in accordance with the provisions
of such Securities and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities of all sums due
and to become due thereon in respect of principal, premium, if any, and
interest, if any, but such money need not be segregated from other funds except
as provided herein and except to the extent required by law.
SECTION 409. Repayment to Company.
The Trustee (and any Paying Agent) shall promptly pay to the
Company upon Company Request any excess money or securities held by them at any
time.
The provisions of the last paragraph of SECTION 1003 shall
apply to any money or securities held by the Trustee or any Paying Agent under
this ARTICLE FOUR that remain unclaimed for two years after the Maturity of any
series of Securities for which money or securities have been deposited pursuant
to SECTION 407(a).
SECTION 410. Indemnity for Government Obligations.
The Company shall pay, and shall indemnify the Trustee
against, any tax, fee or other charge imposed on or assessed against Government
Obligations deposited pursuant to this ARTICLE FOUR or the principal and
interest and any other amount received on such Government Obligations.
SECTION 411. 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 or
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SECTION 407 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 or SECTION 407 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 or SECTION 407; 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 501 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 FIVE 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
FIVE shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal
(or 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 506 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 506 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 FIVE or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 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 514 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.
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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,
(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 person would exercise or use under the circumstances in the
conduct of his or her 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 601;
(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.
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(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 601.
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 602, 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;
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(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;
(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
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(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 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 607, 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 607 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 608, 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 SIX.
(b) In the event that the Trustee shall fail to comply with
the provisions of subsection (a) of this SECTION 608 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 608, the term
"CONFLICTING INTEREST" shall have the meaning specified in Section
310(b) of the Trust Indenture Act and the Trustee shall
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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.
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 U.S., 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 609,
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 609, it shall resign immediately
in the manner and with the effect hereinafter specified in this ARTICLE SIX.
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 SIX 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:
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(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 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.
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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
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
611, as the case may be.
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(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 SIX.
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 SIX, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 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 U.S.,
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 614, 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 614, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this SECTION 614.
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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 614, 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 614, 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 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 614.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this SECTION 614,
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 614, 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.
[TRUSTEE],
as Trustee
By
------------------------------------------
as Authenticating Agent
By
------------------------------------------
Authorized Signatory."
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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.
ARTICLE SEVEN
HOLDER'S 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.
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(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company
nor the Trustee 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.
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 703 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 703, 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 EIGHT 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.
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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
(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
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(9) to modify or amend any of the provisions of this Indenture
to permit or facilitate the qualification of this Indenture or any
indenture supplemental hereto under the Trust Indenture Act; or
(10) to comply with any of the provisions of ARTICLE EIGHT of
this Indenture relating to the consolidation or merger of the Company
or any conveyance, transfer or lease of the Company's properties and
assets as an entirety; or
(11) to add guarantees with respect to the Securities of one
or more series or to secure the Securities of one or more series; or
(12) to provide for uncertificated Securities in addition to,
or in place of, certificated Securities.
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 or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to SECTION 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 902, 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
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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 (3) shall not be deemed to require the
consent of any Holder with respect to changes in the references to "the
Trustee" and concomitant changes in this SECTION 902 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.
It shall not be necessary for any Act of Holders under this
SECTION 902 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 NINE 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 NINE, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this ARTICLE
NINE shall conform to the requirements of the Trust Indenture Act as then in
effect.
SECTION 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 NINE may, and
shall if required by the Trustee, bear
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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.
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
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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 1003, 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;
(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
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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 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 1005, 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.
58
<PAGE> 66
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 1007 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 1007 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 U.S. Aliens without withholding for or on account of any tax, assessment
or other governmental charge described in the Securities of that series. If any
such withholding shall be required, then such Officers' Certificate shall
specify by country the amount, if any, required to be withheld on such payments
to such Holders of Securities and the Company will pay to such Paying Agent the
Additional Amounts required by this SECTION 1007. 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 ELEVEN.
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
59
<PAGE> 67
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.
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;
60
<PAGE> 68
(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 [TIME], [CITY, STATE], 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.
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.
61
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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.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this ARTICLE TWELVE shall be applicable to
any sinking fund for the retirement of Securities of a series except as
otherwise specified as contemplated by SECTION 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
62
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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.
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 THIRTEEN 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 [CITY, STATE], 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
63
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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 [CITY,
STATE], for such meeting and may call such meeting for such purposes by giving
notice thereof as provided in subsection (a) of this SECTION 1302.
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.
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.
64
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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 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
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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.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
GREY WOLF, INC.
By:
-----------------------------------
Name:
Title:
[TRUSTEE], Trustee
By:
-----------------------------------
Name:
Title:
66
<PAGE> 1
EXHIBIT 4.2
- -----------------------------------------------------------------------------
GREY WOLF, INC.
AND
[TRUSTEE],
TRUSTEE
---------------------------------------------
INDENTURE
DATED AS OF
-------------------
DEBT SECURITIES
(SUBORDINATED DEBT)
- -----------------------------------------------------------------------------
<PAGE> 2
GREY WOLF, INC.
RECONCILIATION AND TIE BETWEEN TRUST INDENTURE ACT OF 1939
AND INDENTURE DATED AS OF _________________
----------------------------------------
<TABLE>
<CAPTION>
Section of
Trust Indenture Section(s) of
Act of 1939 Indenture
- --------------- ---------
<S> <C> <C>
Section 310 (a)(1)............................................................................... 609
(a)(2)............................................................................... 609
(a)(3)............................................................................... Not Applicable
(a)(4)............................................................................... Not Applicable
(b).................................................................................. 608, 610
Section 311 (a).................................................................................. 613
(b).................................................................................. 613
(c).................................................................................. Not Applicable
Section 312 (a).................................................................................. 701, 702(a)
(b).................................................................................. 702(b)
(c).................................................................................. 702(c)
Section 313 (a).................................................................................. 703(a)
(b).................................................................................. 703(b)
(c).................................................................................. 703(c)
(d).................................................................................. 703(d)
Section 314 (a).................................................................................. 704, 1005
(b).................................................................................. Not Applicable
(c)(1)............................................................................... 103
(c)(2)............................................................................... 103
(c)(3)............................................................................... Not Applicable
(d).................................................................................. Not Applicable
(e).................................................................................. 103
Section 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
Section 316 (a)(1)(A)............................................................................ 502, 511
(a)(1)(B)............................................................................ 512
(a)(2)............................................................................... Not Applicable
(a)(last sentence)................................................................... 101
(b).................................................................................. 508
Section 317 (a)(1)............................................................................... 503
(a)(2)............................................................................... 504
(b).................................................................................. 1003
Section 318 (a).................................................................................. 108
</TABLE>
- ---------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
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
Capital Stock............................................................................................3
Capitalized Lease Obligation.............................................................................3
Commission...............................................................................................3
Company..................................................................................................3
Company Request and Company Order........................................................................3
Conversion Event.........................................................................................3
Corporate Trust Office...................................................................................3
Credit Agreement.........................................................................................3
Defaulted Interest.......................................................................................3
Depositary...............................................................................................4
Designated Senior Indebtedness...........................................................................4
Disqualified Capital Stock...............................................................................4
Dollar ..................................................................................................4
Event of Default.........................................................................................4
Exchange Rate............................................................................................4
Holder,..................................................................................................4
Indebtedness.............................................................................................5
Indenture................................................................................................5
interest,................................................................................................5
Interest Payment Date,...................................................................................5
Interest Swap and Hedging Obligation.....................................................................5
Judgment Currency........................................................................................5
Junior security..........................................................................................5
Maturity.................................................................................................6
Obligations..............................................................................................6
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
Page
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<S> <C>
Officers' Certificate....................................................................................6
Opinion of Counsel.......................................................................................6
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..........................................................................................8
Redemption Price.........................................................................................8
Regular Record Date......................................................................................8
Required Currency........................................................................................8
Responsible Officer......................................................................................8
Securities...............................................................................................8
Security Custodian.......................................................................................8
Security Register........................................................................................8
Senior Indebtedness......................................................................................8
Special Record Date......................................................................................9
Stated Maturity..........................................................................................9
Subsidiary...............................................................................................9
Trustee..................................................................................................9
Trust Indenture Act......................................................................................9
U.S. ....................................................................................................9
U.S. 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......................................................................12
SECTION 106. Notices, Etc., to Trustee and Company..............................................................13
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
SECTION 113. Governing Law......................................................................................14
</TABLE>
ii
<PAGE> 5
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
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......................................................................................21
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.....................................................25
SECTION 308. Persons Deemed Owners..............................................................................27
SECTION 309. Cancellation.......................................................................................27
SECTION 310. Computation of Interest............................................................................27
SECTION 311. CUSIP Numbers......................................................................................27
ARTICLE FOUR
SATISFACTION, DISCHARGE AND DEFEASANCE
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. Applicability of Defeasance Provisions; Company's Option to Effect Defeasance or Covenant
Defeasance..............................................................................................31
SECTION 405. Defeasance and Discharge...........................................................................31
SECTION 406. Covenant Defeasance................................................................................31
SECTION 407. Conditions to Defeasance or Covenant Defeasance....................................................32
SECTION 408. Deposited Money and Government Obligations to be Held in Trust.....................................33
SECTION 409. Repayment to Company...............................................................................33
SECTION 410. Indemnity for Government Obligations...............................................................34
SECTION 411. Reinstatement......................................................................................34
</TABLE>
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ARTICLE FIVE
REMEDIES
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SECTION 501. Events of Default..................................................................................34
SECTION 502. Acceleration of Maturity; Rescission and Annulment.................................................36
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee....................................37
SECTION 504. Trustee May File Proofs of Claim...................................................................38
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons.............................39
SECTION 506. Application of Money Collected.....................................................................39
SECTION 507. Limitation on Suits................................................................................40
SECTION 508. Unconditional Right of Holders to Receive Principal Premium and Interest...........................41
SECTION 509. Restoration of Rights and Remedies.................................................................41
SECTION 510. Rights and Remedies Cumulative.....................................................................41
SECTION 511. Delay or Omission Not Waiver.......................................................................41
SECTION 512. Control by Holders.................................................................................42
SECTION 513. Waiver of Past Defaults............................................................................42
SECTION 514. Undertaking for Costs..............................................................................42
SECTION 515. Waiver of Stay or Extension Laws...................................................................43
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities................................................................43
SECTION 602. Notice of Defaults.................................................................................44
SECTION 603. Certain Rights of Trustee..........................................................................45
SECTION 604. Not Responsible for Recitals or Issuance of Securities.............................................45
SECTION 605. May Hold Securities................................................................................46
SECTION 606. Money Held in Trust................................................................................46
SECTION 607. Compensation and Reimbursement.....................................................................46
SECTION 608. Disqualification; Conflicting Interests............................................................47
SECTION 609. Corporate Trustee Required; Eligibility............................................................47
SECTION 610. Resignation and Removal; Appointment of Successor..................................................48
SECTION 611. Acceptance of Appointment by Successor.............................................................49
SECTION 612. Merger, Conversion, Consolidation or Succession to Business........................................50
SECTION 613. Preferential Collection of Claims Against Company..................................................50
SECTION 614. Appointment of Authenticating Agent................................................................50
ARTICLE SEVEN
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders..........................................52
SECTION 702. Preservation of Information; Communications to Holders.............................................53
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SECTION 703. Reports by Trustee.................................................................................53
SECTION 704. Reports by Company.................................................................................54
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms...............................................54
SECTION 802. Successor Person Substituted.......................................................................55
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.................................................55
SECTION 902. Supplemental Indentures With Consent of Holders....................................................56
SECTION 903. Execution of Supplemental Indentures...............................................................58
SECTION 904. Effect of Supplemental Indentures..................................................................58
SECTION 905. Conformity With Trust Indenture Act................................................................58
SECTION 906. Reference in Securities to Supplemental Indentures.................................................58
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest........................................................58
SECTION 1002. Maintenance of Office or Agency...................................................................59
SECTION 1003. Money for Securities Payments to be Held in Trust.................................................59
SECTION 1004. Existence.........................................................................................60
SECTION 1005. Statement by Officers as to Default...............................................................61
SECTION 1006. Waiver of Certain Covenants.......................................................................61
SECTION 1007. Additional Amounts................................................................................61
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article..........................................................................62
SECTION 1102. Election to Redeem; Notice to Trustee.............................................................62
SECTION 1103. Selection by Trustee of Securities to be Redeemed.................................................62
SECTION 1104. Notice of Redemption..............................................................................63
SECTION 1105. Deposit of Redemption Price.......................................................................64
SECTION 1106. Securities Payable on Redemption Date.............................................................64
SECTION 1107. Securities Redeemed in Part.......................................................................64
SECTION 1108. Purchase of Securities............................................................................64
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ARTICLE TWELVE
SINKING FUNDS
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SECTION 1201. Applicability of Article..........................................................................65
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.............................................65
SECTION 1203. Redemption of Securities for Sinking Fund.........................................................65
ARTICLE THIRTEEN
SUBORDINATION
SECTION 1301. Securities Subordinated to Senior Indebtedness....................................................66
SECTION 1302. No Payment on Securities in Certain Circumstances.................................................66
SECTION 1303. Securities Subordinated to Prior Payment of All Senior Indebtedness on Dissolution,
Liquidation or Reorganization..........................................................................67
SECTION 1304. Subrogation to Rights of Holders of Senior Indebtedness...........................................68
SECTION 1305. Obligations of the Company Unconditional..........................................................69
SECTION 1306. Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice...........................69
SECTION 1307. Application by Trustee of Amounts Deposited with It...............................................70
SECTION 1308. Subordination Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior
Indebtedness...........................................................................................70
SECTION 1309. Trustee to Effectuate Subordination of Securities.................................................70
SECTION 1310. Right of Trustee to Hold Senior Indebtedness......................................................71
SECTION 1311. Article Thirteen Not to Prevent Events of Default.................................................71
SECTION 1312. No Fiduciary Duty of Trustee to Holders of Senior Indebtedness....................................71
SECTION 1313. Article Applicable to Paying Agent................................................................71
ARTICLE FOURTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1401. Purposes for Which Meetings May Be Called.........................................................72
SECTION 1402. Call, Notice and Place of Meetings................................................................72
SECTION 1403. Persons Entitled to Vote at Meetings..............................................................72
SECTION 1404. Quorum; Action....................................................................................73
SECTION 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings...............................73
SECTION 1406. Counting Votes and Recording Action of Meetings...................................................74
</TABLE>
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<PAGE> 9
INDENTURE, dated as of _______________, between GREY WOLF,
INC., a corporation duly organized and existing under the laws of the State of
Texas (herein called the "COMPANY"), having its principal office at 10370
Richmond Avenue, Suite 600, Houston, Texas 77042, and [TRUSTEE], a
___________________, 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 [TRUSTEE'S ADDRESS].
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
subordinated 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 ONE have the meanings
assigned to them in this ARTICLE ONE 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
1
<PAGE> 10
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" is defined 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.
2
<PAGE> 11
"BUSINESS DAY" means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking institutions are
authorized or obligated by law or executive order or regulation to close in New
York, New York, and Houston, Texas, and when used with respect to any Place of
Payment, in that Place of Payment.
"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 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" is defined in SECTION 501.
"CORPORATE TRUST OFFICE" means the principal office of the
Trustee in [TRUSTEE'S CITY AND STATE] 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.
"CREDIT AGREEMENT" means that certain Loan Agreement, dated
as of January 14, 1999, among the Company, The CIT Group/Business Credit, Inc.,
as Agent, and the other parties thereto, providing for up to $50 million of
borrowings, including any related notes, guarantees, collateral documents,
instruments and agreements executed in connection therewith, and in each case
as amended, restated, supplemented, modified, renewed, refunded, replaced or
refinanced from time to time.
"DEFAULTED INTEREST" is defined in SECTION 307.
3
<PAGE> 12
"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 (i) the Credit Agreement, and (ii) any other Senior Indebtedness that (a)
in the 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 (b)
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 clause (b) below, 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 final 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. Notwithstanding the preceding sentence, any Capital Stock that
would constitute Disqualified Capital Stock solely because the holders thereof
have the right to require the Company to repurchase such Capital Stock upon the
occurrence of a change of control or an asset sale shall not constitute
Disqualified Capital Stock if the terms of such Capital Stock provide that the
Company may not repurchase or redeem any such Capital Stock pursuant to such
provisions unless such repurchase or redemption complies with any provision
hereof which requires the purchase, in whole or in part, of the Securities upon
the occurrence of such change of control or asset sale.
"DOLLAR" or "$" means a dollar or other equivalent unit in
such coin or currency of the U.S. as at the time shall be legal tender for the
payment of public and private debts.
"EVENT OF DEFAULT" is defined in SECTION 501.
"EXCHANGE RATE" is defined 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.
4
<PAGE> 13
"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 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, (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; and (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.
"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 commodity prices, 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" is defined 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 and
any Indebtedness of such Person that is subordinated in right of payment to the
Securities of such series to at least the same extent as the Securities of such
series are subordinated to Senior Debt.
5
<PAGE> 14
"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.
"OBLIGATIONS" means any principal, interest (including
interest accruing on or after the date a bankruptcy case is commenced by or
against any Person obligated therefor, whether a claim for post-petition
interest is allowed in such bankruptcy case), penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"OFFICERS' CERTIFICATE" means a certificate signed by the (a)
Chairman of the Board, a Vice Chairman of the Board, the Chief Executive
Officer, the President, the Chief Operating Officer or a Vice President, and
(b) the Chief Financial Officer, the Chief Accounting Officer, the Treasurer,
the Controller, the Secretary or an Assistant Treasurer, Assistant Controller
or Assistant Secretary, of the Company (each an "OFFICER"), and delivered to
the Trustee, which certificate shall comply with SECTION 103.
"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.
"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 cancelled 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;
6
<PAGE> 15
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 if the Maturity thereof
were accelerated on such date 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
clause (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) or interest on or Additional Amounts with respect to any one or more
series of Securities on behalf of the Company.
"PAYMENT DEFAULT" is defined in SECTION 1302(a).
"PAYMENT NOTICE" is defined 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.
7
<PAGE> 16
"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" is defined 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
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" is defined 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, or any other Person designated by such Trustee,
or such successor entity, to act as custodian with respect to the Securities of
such series.
"SECURITY REGISTER" and "SECURITY REGISTRAR" are defined in
SECTION 305.
"SENIOR INDEBTEDNESS" of any Person, unless otherwise
provided with respect to the Securities of a series as contemplated by SECTION
301, means (i) all Indebtedness of such Person, 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, (ii) all Hedging
Obligations with respect to items described in the preceding clause (i), (iii)
all Obligations with respect to the items described in the preceding clauses
(i) and (ii), and (iv) 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 such Person owed
8
<PAGE> 17
or owing to any Subsidiary of such Person, (b) any trade payable incurred by
such Person for the purchase of goods or materials or for services obtained in
the ordinary course of business, or (c) any liability for federal, state, local
or other taxes owed or owing by such Person.
"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) 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, (b) a general partnership, joint venture or similar
entity, more than 50% of the outstanding partnership or similar interests of
which is owned, directly or indirectly, by the Company, or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries, or (c) a
limited partnership of which the Company or another Subsidiary is general
partner. 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.
"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.
"U.S." 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.
"U.S. ALIEN" means any Person who, for U.S. 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" is defined in SECTION 401.
"VICE PRESIDENT" 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) a corporation all the
outstanding voting stock (other than any directors' qualifying shares) of which
is owned, directly or indirectly, by the
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Company or by one or more other Wholly-Owned Subsidiaries, or by the Company
and one or more other Wholly-Owned Subsidiaries, or (b) a general or limited
partnership, joint venture or similar entity, all of the outstanding
partnership or similar interests 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.
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
U.S. 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
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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;
(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.
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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 105. The record of any meeting of Holders of
Securities shall be proved in the manner provided in SECTION 1406.
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.
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SECTION 106. Notices, Etc., to Trustee and Company.
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 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 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: Chief Financial Officer.
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 or such other
provision hereof which is required to be included by any provision of the Trust
Indenture Act shall control. If any provision of this Indenture modifies or
excludes any provision of the Trust Indenture
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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
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, Security
Registrar, Security Custodian, 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 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.
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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 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."
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SECTION 203. Securities in Global Form.
If Securities of a series are issuable in global form, as
contemplated by SECTION 301, then, notwithstanding SECTIONS 301(10) and 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
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 representations 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 nor 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
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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 nor 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
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
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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 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
nor 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 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 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.
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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);
(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
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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;
(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;
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(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;
(18) whether the Securities of the series are to be
secured or guaranteed;
(19) any restriction or condition on the transferability
of the Securities of the series;
(20) any Paying Agents, Security Registrars (if other than
Trustee), conversion agents or other agents to be appointed by the
Company with respect to the Securities of the series; and
(21) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in
or pursuant to the Board Resolution referred to above and (subject to SECTION
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
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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.
One Officer shall sign the Securities for the Company by
manual or facsimile signature.
Securities bearing the manual or facsimile signatures of an
individual who was at any time an Officer shall bind the Company,
notwithstanding that such individual has ceased to hold such office prior to
the authentication and delivery of such Securities or did not hold such office
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.
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.
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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 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.
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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.
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.
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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 306,
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 306 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 306 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
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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 (1) 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 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 307, 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.
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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 309, 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.
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.
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ARTICLE FOUR
SATISFACTION, DISCHARGE AND DEFEASANCE
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 401, 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;
(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;
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(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
U.S. federal income tax purposes as a result of such deposit,
satisfaction and discharge and will be subject to U.S. 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 U.S., or to the payment of which obligations or guarantees the full faith
and credit of the U.S. 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 401 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 401,
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 403 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 403 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. Applicability of Defeasance Provisions; Company's Option to Effect
Defeasance or Covenant Defeasance.
Except as otherwise specified as contemplated by SECTION 301
for the Securities of any series, the provisions of SECTIONS 404 through 410
inclusive, with such modifications thereto as may be specified pursuant to
SECTION 301 with respect to any series of Securities, shall be applicable to
the Securities.
SECTION 405. Defeasance and Discharge.
On and after the date on which the conditions set forth in
SECTION 407 are satisfied with respect to the Securities of any series, the
Company shall be deemed to have paid and been discharged from its obligations
with respect to such Securities (hereinafter "DEFEASANCE"). For this purpose,
such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities which shall
thereafter be deemed to be "OUTSTANDING" only for the purposes of SECTION 408
and the other Sections of this Indenture referred to in clause (ii) of this
SECTION 405, and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and the
Trustee, upon payment of all amounts due it under SECTION 607, at the expense
of the Company, shall on a Company Order execute proper instruments
acknowledging the same), except the following which shall survive until
otherwise terminated or discharged hereunder: (i) the rights of Holders of such
Securities to receive, solely from the trust funds described in SECTION 407(a)
and as more fully set forth in such SECTION 407(a), payments in respect of the
principal of, premium, if any, and interest, if any, on such Securities when
such payments are due; (ii) the Company's obligations with respect to such
Securities under SECTIONS 305, 309, 1002 and 1003 and with respect to the
payment of Additional Amounts, if any, payable with respect to such Securities
as specified pursuant to clause (13) of SECTION 301; (iii) the Company's
obligations with respect to a conversion or exchange of such Securities; (iv)
the rights, powers, trusts, duties and immunities of the Trustee hereunder; and
(v) this ARTICLE FOUR. Subject to compliance with this ARTICLE FOUR, the
Company may defease the Securities of any series under this SECTION 405
notwithstanding a prior covenant defeasance (as defined herein) under SECTION
406 with respect to such Securities. Following a defeasance, payment of such
Securities may not be accelerated because of an Event of Default.
SECTION 406. Covenant Defeasance.
On and after the date on which the conditions set forth in
SECTION 407 (other than SECTION 407(c)) are satisfied with respect to the
Securities of or within any series, (i) the Company shall be released from its
obligations under SECTIONS 801 and 1004 and, if specified pursuant to SECTION
301, its obligations under any other covenant, with respect to such Securities
and (ii) the occurrence of any event specified in clauses (4) and (7) of
SECTION 501 (with respect to any of the obligations described in clause (i)
above) shall be deemed not to be or result in an Event of Default (hereinafter,
"COVENANT DEFEASANCE"), and such Securities shall thereafter be deemed to be
not "OUTSTANDING" for the purposes of any request, demand, authorization,
direction, notice, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with SECTION 801 or SECTION 1004,
such other covenant specified pursuant to SECTION 301, but shall
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continue to be deemed "OUTSTANDING" for all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Securities,
the Company may omit to comply with and shall have no liability in respect of
any term, condition or limitation set forth in any such Section or such other
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such Section or such other covenant or by reason of reference in
any such Section or such other covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or an
Event of Default under clauses (4) and (7) of SECTION 501 or otherwise, as the
case may be, but, except as specified above the remainder of this Indenture and
such Securities and any interest coupons appertaining thereto shall be
unaffected thereby.
SECTION 407. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of
SECTION 405 or SECTION 406 to any Securities of any series:
(a) the Company shall have deposited or caused to be
deposited irrevocably with the Trustee (or another trustee satisfying the
requirements of SECTION 609 who shall agree to comply with, and shall be
entitled to the benefits of, the provisions of SECTIONS 404 through 410
inclusive and the last paragraph of SECTION 1003 applicable to the Trustee, for
purposes of such Sections also a "TRUSTEE") as trust funds in trust for the
purpose of making the payments referred to in clauses (x) and (y) of this
SECTION 407(a), specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of such Securities, with written instructions to the
Trustee as to the application thereof, (A) money in an amount (in such
currency, currencies or currency unit or units in which such Securities are
then specified as payable at Stated Maturity), or (B) if Securities of such
series are not subject to repayment at the option of Holders, Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide, not later than one day
before the due date of any payment referred to in clause (x) or (y) of this
SECTION 407(a), money in an amount or (C) a combination thereof in an amount,
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants or a nationally recognized investment banking firm
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee to pay and discharge,
(x) the principal of, premium, if any, and interest, if any, on such Securities
on the Stated Maturity of such principal or installment of principal or
interest and (y) any mandatory sinking fund payments applicable to such
Securities on the date on which such payments are due and payable in accordance
with the terms of this Indenture and such Securities. Before such a deposit the
Company may make arrangements satisfactory to the Trustee for the redemption of
Securities at a future date or dates in accordance with ARTICLE ELEVEN which
shall be given effect in applying the foregoing.
(b) No Default or Event of Default with respect to the
Securities of that series shall have occurred or be continuing on the date of
such a deposit or shall occur as a result of such a deposit or, insofar as
clauses (5) and (6) of SECTION 501 are concerned, shall occur at any time
during the period ending on the 91st day after the date of such deposit.
(c) In the case of an election under SECTION 405, the Company
shall have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel to the effect that (i) the
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Company has received from or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable U.S. Federal income tax law, in either case
to the effect that, and based thereon such opinion shall confirm that, the
Holders of such Securities and any interest coupons appertaining thereto will
not recognize income, gain or loss for U.S. Federal income tax purposes as a
result of such defeasance and will be subject to U.S. Federal income tax on the
same amount and in the same manner and at the same times, as would have been
the case if such deposit, defeasance and discharge had not occurred.
(d) In the case of an election under SECTION 406, the Company
shall have delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel to the effect that the Holders of such Securities and any interest
coupons appertaining thereto will not recognize income, gain or loss for U.S.
Federal income tax purposes as a result of such covenant defeasance and will be
subject to U.S. Federal income tax on the same amount and in the same manner
and at the same times, as would have been the case if such deposit and covenant
defeasance had not occurred.
(e) The Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent to the defeasance under SECTION 405 or the covenant
defeasance under SECTION 406 (as the case may be) have been complied with.
(f) Such defeasance or covenant defeasance shall be effected
in compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection therewith as
contemplated by SECTION 301.
(g) At the time of such deposit: (A) no Default in the
payment of principal of (or premium, if any) or interest on any Senior Debt
shall have occurred and be continuing or (B) no other Event of Default with
respect to any Senior Debt shall have occurred and be continuing and shall have
resulted in such Senior Debt becoming or being declared due and payable prior
to the date on which it would otherwise have become due and payable, or, in the
case of either clause (A) or clause (B) above, each such Default or Event of
Default shall have been cured or waived or shall have ceased to exist.
SECTION 408. Deposited Money and Government Obligations to be Held in Trust.
Subject to the provisions of the last paragraph of SECTION
1003, all money and Government Obligations (or other property as may be
provided pursuant to SECTION 301) (including the proceeds thereof) deposited
with the Trustee pursuant to SECTION 407 in respect of any Securities of any
series shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
of all sums due and to become due thereon in respect of principal, premium, if
any, and interest, if any, but such money need not be segregated from other
funds except as provided herein and except to the extent required by law.
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SECTION 409. Repayment to Company.
The Trustee (and any Paying Agent) shall promptly pay to the
Company upon Company Request any excess money or securities held by them at any
time.
The provisions of the last paragraph of SECTION 1003 shall
apply to any money or securities held by the Trustee or any Paying Agent under
this ARTICLE FOUR that remain unclaimed for two years after the Maturity of any
series of Securities for which money or securities have been deposited pursuant
to SECTION 407(a).
SECTION 410. Indemnity for Government Obligations.
The Company shall pay, and shall indemnify the Trustee
against, any tax, fee or other charge imposed on or assessed against Government
Obligations deposited pursuant to this ARTICLE FOUR or the principal and
interest and any other amount received on such Government Obligations.
SECTION 411. 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 or SECTION 407 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 or SECTION 407 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 or SECTION 407;
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:
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(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 501 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 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
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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.
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.
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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 FIVE 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 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
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(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.
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
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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.
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 FIVE shall be applied in the following order,
at the date or dates fixed by the Trustee and, in case of the distribution of
such money on account of principal (or 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
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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 506 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 506 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.
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;
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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.
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 FIVE or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
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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
(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
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to the merits and good faith of the claims or defenses made by such party
litigant; but the provisions of this SECTION 514 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,
(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 person would exercise or use under the
circumstances in the conduct of his or her own affairs.
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(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 (1) shall not be construed
to limit the effect of subsection (a) of this SECTION 601;
(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 501.
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 602, 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.
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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;
(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.
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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 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 607, 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.
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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 607 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 608, 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 SIX.
(b) In the event that the Trustee shall fail to comply with
the provisions of subsection (a) of this SECTION 608 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 608, 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.
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 U.S., 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 609,
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 609, it shall resign
immediately in the manner and with the effect hereinafter specified in this
ARTICLE SIX.
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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 SIX 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 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
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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
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
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administration of the trusts hereunder by more than one Trustee, it
being understood that nothing herein or in such supplemental indenture
shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by
any other such Trustee; 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
611, 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 SIX.
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 SIX, without the execution or filing of any paper or any further act on
the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 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.
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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 U.S.,
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 614, 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 614, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this SECTION 614.
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 614, 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 614, 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 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 614.
The Trustee agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this SECTION 614,
and the Trustee shall be entitled to be reimbursed for such payments, subject
to the provisions of SECTION 607.
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If an appointment is made pursuant to this SECTION 614, 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.
[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.
ARTICLE SEVEN
HOLDER'S 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
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(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content, 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 and the Trustee that neither the Company
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.
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 703 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;
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(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 703, 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:
(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
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(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
EIGHT 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
(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
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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 modify or amend any of the provisions of this
Indenture to permit or facilitate the qualification of this Indenture
or any indenture supplemental hereto under the Trust Indenture Act; or
(10) to comply with any of the provisions of ARTICLE EIGHT of
this Indenture relating to the consolidation or merger of the Company
or any conveyance, transfer or lease of the Company's properties and
assets as an entirety; or
(11) to add guarantees with respect to the Securities of one
or more series or to secure the Securities of one or more series; or
(12) to provide for uncertificated Securities in addition
to, or in place of, certificated Securities; or
(13) to make any change in the subordination provisions of
ARTICLE THIRTEEN that would limit or terminate the benefits available
to any holder of Senior Indebtedness under ARTICLE THIRTEEN.
SECTION 902. Supplemental Indentures With Consent of Holders.
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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 or any
premium payable upon the redemption thereof, or reduce the amount of
the principal of an Original Issue Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to SECTION 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 902, 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 (3) shall not be deemed to require the
consent of any Holder with respect to changes in the references to
"the Trustee" and concomitant changes in this SECTION 902 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 902 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 NINE 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 NINE, this Indenture shall be modified in accordance therewith, and
such supplemental indenture shall form a part of this Indenture for all
purposes; and every Holder of Securities theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
SECTION 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this
ARTICLE NINE shall conform to the requirements of the Trust Indenture Act as
then in effect.
SECTION 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 NINE may,
and shall if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for Outstanding
Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 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
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Amounts with respect to the Securities of that series in accordance with the
terms of the Securities and this Indenture.
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 1003, that such Paying Agent will:
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(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;
(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.
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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 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 1005, 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 1007 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 1007 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
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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 U.S. Aliens without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of that
series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be
withheld on such payments to such Holders of Securities and the Company will
pay to such Paying Agent the Additional Amounts required by this SECTION 1007.
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 1101.
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
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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.
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.
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SECTION 1105. Deposit of Redemption Price.
On or before [TIME], [CITY, STATE], 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.
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
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represented thereby shall be deemed to be satisfied. SECTION 309 shall apply to
all Securities so delivered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this ARTICLE TWELVE shall be applicable to
any sinking fund for the retirement of Securities of a series except as
otherwise specified as contemplated by SECTION 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
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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.
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
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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) 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, in cash, 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);
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(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 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, in cash, 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
THIRTEEN) 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
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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 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
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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 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
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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 is hereby authorized to have the right to file and is 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 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 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 Payment Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"TRUSTEE" as used in this
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ARTICLE THIRTEEN shall in such case (unless the context shall otherwise
require) be construed as extending to and including such Payment Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this ARTICLE THIRTEEN 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.
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 FOURTEEN
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 [CITY, STATE], 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 [CITY, STATE], for such meeting
and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this SECTION 1402.
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
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at such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
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 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 1404 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.
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(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.
(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.
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IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the day and year first above written.
GREY WOLF, INC.
By:
---------------------------------------------
Name:
Title:
[TRUSTEE], Trustee
By:
---------------------------------------------
Name:
Title:
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EXHIBIT 5.1
[P&H LETTERHEAD]
September 10, 1999
Grey Wolf, Inc.
10370 Richmond Avenue, Suite 500
Houston, Texas 77042-4136
Ladies and Gentlemen:
We have acted as counsel for Grey Wolf, Inc., a Texas corporation (the
"Company"), in connection with the registration under the Securities Act of
1933, as amended (the "Securities Act"), on a Registration Statement on Form S-3
(the "Registration Statement") of the offer and sale from time to time pursuant
to Rule 415 under the Securities Act of the following securities for an
aggregate initial offering price not to exceed $200,000,000: (i) debt securities
of the Company ("Debt Securities"); (ii) shares of common stock, par value $.01
per share, of the Company ("Common Stock"); (iii) shares of preferred stock, par
value $1.00 per share, of the Company ("Preferred Stock"); (iv) depositary
shares representing fractional interests in Preferred Stock ("Depositary
Shares"); and (v) warrants to purchase Debt Securities, Preferred Stock or
Common Stock (the "Warrants" and, together with the Debt Securities, Preferred
Stock, Depositary Shares and Common Stock, the "Securities").
We have examined those records and documents as we have deemed
necessary, including but not limited to (i) the amended and restated Articles of
Incorporation and the Bylaws of the Company, (ii) the corporate proceedings of
the Company, and (iii) the Indentures in the form of Exhibits 4.1 and 4.2 to the
Registration Statement to be executed by the Company and the trustee (the
"Indentures"), pursuant to which Debt Securities may be issued.
As to certain questions of fact material to our opinions that we have
not independently established we have relied upon certificates from officers of
the Company and upon certificates of public officials.
In rendering the following opinions, we have assumed (i) all
information contained in all documents reviewed by us is true and correct, (ii)
the genuineness of all signatures on all documents reviewed by us, (iii) the
authenticity and completeness of all documents submitted to us as originals,
(iv) the conformity to authentic originals of all documents submitted to us as
certified or photostatic copies, (v) each natural person signing any document
reviewed by us
<PAGE> 2
had the legal capacity to do so, and (iv) each person signing in a
representative capacity any document reviewed by us had authority to sign in
such capacity.
Based on the foregoing, and subject to the assumptions, exceptions and
qualifications stated below, we are of the opinion that:
1. With respect to Debt Securities to be issued under the Indentures, when
(a) the applicable Indenture has been duly authorized and validly
executed and delivered by the Company to the trustee, (b) the
applicable Indenture has been duly qualified under the Trust Indenture
Act of 1939, (c) the Company's Board of Directors or, to the extent
permitted by Article 2.36 of the Texas Business Corporation Act (the
"TBCA"), a duly constituted and acting committee thereof (such Board of
Directors or committee being hereinafter referred to as the "Board")
has taken all necessary corporate action to authorize the issuance and
terms of such Debt Securities, the terms of the offering thereof and
related matters, and (d) such Debt Securities have been duly executed,
authenticated, issued and delivered in accordance with the provisions
of the applicable Indenture and upon payment of the consideration
therefor, such Debt Securities will be legally issued and will
constitute valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
2. With respect to shares of Common Stock, when both (a) the Board has
taken all necessary corporate action to authorize the issuance of and
the terms of the offering of the shares of Common Stock and related
matters and (b) certificates representing the shares of Common Stock
have been duly executed, countersigned, registered and delivered either
(i) in accordance with the applicable definitive purchase, underwriting
or similar agreement approved by the Company's Board upon payment of
the consideration therefor (not less than the par value of the Common
Stock) provided for therein or (ii) upon conversion or exercise of any
other Security, in accordance with the terms of such Security or the
instrument governing such Security providing for such conversion or
exercise as approved by the Board, for the consideration approved by
the Board (not less than the par value of the Common Stock), then the
shares of Common Stock will be validly issued, fully paid and
nonassessable.
3. With respect to shares of Preferred Stock, when both (a) the Board has
taken all necessary corporate action to authorize the issuance and
terms of the shares of Preferred Stock, the terms of the offering
thereof, and related matters, including the adoption of a statement of
resolution relating to such Preferred Stock as required by the TBCA (a
"Statement of Resolution") and the filing of the Statement of
Resolution with the Secretary of State of the State of Texas, and (b)
certificates representing the shares of Preferred Stock have been duly
executed, countersigned, registered and delivered either (i) in
accordance with the applicable definitive
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<PAGE> 3
purchase, underwriting or similar agreement approved by the Board upon
payment of the consideration therefor (not less than the par value of
the Preferred Stock) provided for therein or (ii) upon conversion or
exercise of any other Security, in accordance with the terms of such
Security or the instrument governing such Security providing for such
conversion or exercise as approved by the Board, for the consideration
approved by the Board (not less than the par value of the Preferred
Stock), then the shares of Preferred Stock will be validly issued,
fully paid and non-assessable.
4. With respect to Depositary Shares, when (a) the Board has taken all
necessary corporate action to authorize the issuance and terms of the
Depositary Shares, the terms of the offering thereof, and related
matters, including the adoption of a Statement of Resolution relating
to the Preferred Stock underlying such Depositary Shares and the filing
of the Statement of Resolution with the Secretary of State of the State
of Texas, (b) the Depositary Agreement or Agreements relating to the
Depositary Shares and the related Depositary Receipts have been duly
authorized and validly executed and delivered by the Company and the
Depositary appointed by the Company, (c) the shares of Preferred Stock
underlying such Depositary Shares have been deposited with a bank or
trust company (which meets the requirements for the Depositary set
forth in the Registration Statement) under the applicable Depositary
Agreements, and (d) the Depositary Receipts representing the Depositary
Shares have been duly executed, countersigned, registered and delivered
in accordance with the appropriate Depositary Agreement and the
applicable definitive purchase, underwriting or similar agreements
approved by the Board upon payment of the consideration therefore
provided for therein, the Depositary Shares will be validly issued.
5. With respect to the Warrants, when (a) the Board has taken all
necessary corporate action to authorize the creation of and the
issuance and terms of the Warrants, the terms of the offering thereof,
and related matters (b) the warrant agreement or agreements relating to
the Warrants have been duly authorized and validly executed and
delivered by the Company and the warrant agent appointed by the
Company, and (c) the Warrants and certificates representing the
Warrants have been duly executed, countersigned, registered and the
applicable definitive purchase, underwriting or similar agreement
approved by the Company's Board upon payment of the consideration
therefor provided for therein, the Warrants will be legally issued and
will constitute valid and binding obligations of the Company.
The opinions expressed above are subject in all respects to the
following assumptions, exceptions and qualifications:
a. We have assumed that: (i) the Registration Statement and any
amendments thereto (including post-effective amendments) will
have become effective
-3-
<PAGE> 4
and will comply with all applicable provisions of the
Securities Act and such state securities rules, regulations
and laws as may be applicable, (ii) the Registration Statement
will be effective and comply with all applicable provisions of
the Securities Act and such state securities rules,
regulations and laws as may be applicable at the time the
Securities are offered or issued as contemplated by the
Registration Statement; (iii) a prospectus supplement will
have been prepared and filed with the Securities and Exchange
Commission (the "Commission") describing the Securities
offered thereby and will comply with the Securities Act and
all applicable state securities rules, regulations and laws;
(iv) all Securities will be issued and sold in compliance with
the Securities Act, the Securities Exchange Act of 1934, as
amended, and all applicable state securities rules,
regulations and laws and in the manner stated in the
Registration Statement and the appropriate prospectus
supplement; (v) a definitive purchase, underwriting or similar
agreement with respect to any Securities offered or issued
will have been duly authorized and validly executed and
delivered by the Company and the other parties thereto; and
(vi) any Securities issuable upon conversion, exchange or
exercise of any Security being offered or issued will be duly
authorized, created and, if appropriate, reserved for issuance
upon such conversion, exchange or exercise.
b. In rendering the opinions in paragraph 1, we have assumed that
the trustee is or, at the time the applicable Indenture is
signed, will be qualified to act as trustee under the
Indenture and that the trustee has or will have duly executed
and delivered the Indenture.
c. The enforceability of the Indentures and provisions thereof
may be limited by bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or other similar laws now or
hereinafter in effect relating to or affecting enforcement of
creditors rights generally and by general principles of equity
(regardless of whether such enforcement is considered in a
proceeding in equity or at law). Such principles of equity
include, without limitation, concepts of materiality,
reasonableness, good faith and fair dealing, and also to the
possible unavailability of specific performance or injunctive
relief.
d. We express no opinion with respect to (i) the enforceability
of the provisions in the Indentures, or any other agreement or
instrument with respect to delay or omission of enforcement of
rights or remedies, or waivers of notices or defenses, or
waivers of benefits of or other rights that cannot be
effectively waived under, applicable laws; (ii) the
enforceability of indemnification provisions to the extent
they purport to relate to liabilities resulting from
enforceability of indemnification provisions to the extent
they purport to relate to liabilities resulting from
-4-
<PAGE> 5
or based upon negligence or any violation of federal or state
securities laws or blue sky laws or (iii) the enforceability
of Section 111 of the Indentures.
e. We note that the Indentures by their terms purport to be
governed by the laws of the State of New York and that the
terms of the Warrants, when determined, may be governed by the
laws of a jurisdiction other than the State of Texas. While we
express no opinion with respect to the laws of the State of
New York or such other jurisdictions in rendering these
opinions, we have assumed that the internal laws of the State
of New York and such other jurisdictions are the same as the
internal laws of the State of Texas. We have, with your
permission, not conducted any analysis to determine whether
that assumption is correct.
f. The opinions expressed in this letter are limited to the laws
of the States of Texas and the federal laws of the United
States of America.
We consent to the use of this opinion as Exhibit 5.1 to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the prospectus included as a part of the Registration Statement. In
giving this consent, we do not admit that this firm is in the category of
persons whose consent is required under Section 7 of the Securities Act of the
rules and regulations of the Commission promulgated thereunder.
This opinion is rendered on the date hereof and we disclaim any duty to
advise you regarding any changes in the matters addressed herein.
Very truly yours,
/s/ PORTER & HEDGES, L.L.P.
PORTER & HEDGES, L.L.P.
-5-
<PAGE> 1
EXHIBIT 12.1
GREY WOLF, INC.
RATIO OF EARNINGS TO FIXED CHARGES
AND EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
<TABLE>
<CAPTION>
TWELVE NINE
SIX MONTHS MONTHS MONTHS
ENDED YEAR ENDED DECEMBER 31, ENDED ENDED
JUNE 30, ------------------------------------------- DECEMBER DECEMBER
1999 1998 1997 1996 1995 31, 1994 31, 1994
---------- ------------------------------------------- -------- --------
<S> <C> <C> <C> <C> <C> <C> <C>
Pretax income from continuing operations: (16,901) (111,164) 18,849 (10,877) (12,675) (3,557) (2,260)
Add:
Fixed charges:
Interest, whether expenses or
capitalized 10,741 20,244 8,442 1,220 1,472 404 332
Amortization of debt expense and
discount or premium 1,269 1,377 306 183 47 -- --
Minority interest in the loss of INDRILLERS LLC -- -- 324 118 -- -- --
---------- --------------------------------------------- ------- ----------
Earnings as adjusted (4,891) (89,543) 27,921 (9,356) (11,156) (3,153) (1,928)
========== ============================================= ======= ==========
Fixed Charges 12,010 21,621 8,748 1,403 1,519 404 332
========== ============================================= ======= ==========
Ratio of Earnings to Fixed Charges or Deficiency (16,901) (111,164) 3.19 (10,759) (12,675) (3,557) (2,260)
========== ============================================= ======= ==========
Series B preferred stock dividend requirement -- -- -- 420 -- -- --
---------- --------------------------------------------- ------- ----------
Ratio of Earnings to Fixed Charges and preferred
stock dividends (16,901) (111,164) 3.19 (11,179) (12,675) (3,557) (2,260)
========== ============================================= ======= ==========
* Includes write-off of deferred financing costs of $624,000.
<CAPTION>
YEAR ENDED MARCH 31,
----------------------
1994 1993
----------------------
<C> <C>
Pretax income from continuing operations: (1,384) (3,387)
Add:
Fixed charges:
Interest, whether expenses or
capitalized 257 --
Amortization of debt expense and
discount or premium -- --
Minority interest in the loss of INDRILLERS LLC -- --
----------------------
Earnings as adjusted (1,127) (3,387)
======================
Fixed Charges 257 --
======================
Ratio of Earnings to Fixed Charges or Deficiency (1,384) (3,387)
======================
Series B preferred stock dividend requirement -- --
----------------------
Ratio of Earnings to Fixed Charges and preferred
stock dividends (1,384) (3,387)
======================
* Includes write-off of deferred financing costs of $624,000.
</TABLE>
<PAGE> 1
EXHIBIT 23.1
The Board of Directors
Grey Wolf, Inc.:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG LLP
Houston, Texas
September 10, 1999
