<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER , 1996
REGISTRATION NO. 333-
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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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FOREST OIL CORPORATION
(Name of Registrant as specified in its charter)
<TABLE>
<S> <C>
NEW YORK 25-0484900
(State or other jurisdiction (I.R.S. Employer
of incorporation or Identification
organization) No.)
</TABLE>
1600 BROADWAY, SUITE 2200
DENVER, COLORADO 80202
(303) 812-1400
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
DANIEL L. MCNAMARA
CORPORATE COUNSEL AND SECRETARY
FOREST OIL CORPORATION
1600 BROADWAY, SUITE 2200
DENVER, COLORADO 80202
(303) 812-1400
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
ALAN P. BADEN JONATHAN I. MARK
VINSON & ELKINS L.L.P. CAHILL GORDON & REINDEL
2300 FIRST CITY TOWER 80 PINE STREET
1001 FANNIN NEW YORK, NEW YORK 10005
HOUSTON, TEXAS 77002
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. /X/
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / / ____________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / / ____________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
(CALCULATION TABLE ON FOLLOWING PAGE)
--------------------------
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 SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM
AGGREGATE
TITLE OF EACH CLASS OF OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED PRICE(1)(2)(3)(4) REGISTRATION FEE(3)
<S> <C> <C>
Common Stock (par value $.10 per share) (5).....................
Preferred Stock (par value $.01 per share)......................
Debt Securities (6).............................................
Total........................................................... $250,000,000 $75,758
</TABLE>
(1) There are being registered hereunder a presently indeterminate number of
shares of Common Stock, including shares of Common Stock into which certain
series of Debt Securities and Preferred Stock may be converted and for which
no separate consideration will be received.
(2) In U.S. dollars or the equivalent thereof in foreign currency or currency
units.
(3) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933, as amended.
(4) Exclusive of accrued interest or dividends, if any.
(5) Including associated preferred stock purchase rights. Prior to the
occurrence of certain events, the preferred stock purchase rights will not
be evidenced or traded separately from the Common Stock.
(6) The aggregate principal amount of the Debt Securities may be increased if
any Debt Securities are issued at an original issue discount by an amount
such that the gross proceeds to be received by the registrant shall be equal
to the above amount to be registered. In no event will the aggregate initial
offering price of all securities issued from time to time pursuant to this
Registration Statement exceed $250,000,000.
<PAGE>
SUBJECT TO COMPLETION, DATED NOVEMBER , 1996
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
PROSPECTUS
FOREST OIL CORPORATION
E
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
------------------
Forest Oil Corporation ("Forest" or the "Company") may from time to time
offer (i) its unsecured senior debt securities (the "Senior Debt Securities"),
(ii) its unsecured subordinated debt securities (the "Subordinated Debt
Securities" and, together with the Senior Debt Securities, the "Debt
Securities"), which may be convertible into shares of common stock, par value
$.10 per share, of the Company (the "Common Stock"), (iii) shares of its
preferred stock, par value $.01 per share (the "Preferred Stock"), which may be
convertible into shares of Common Stock or exchangeable for Debt Securities and
(iv) shares of its Common Stock. The Preferred Stock and the Common Stock are
collectively referred to as the "Equity Securities," and the Debt Securities and
the Equity Securities are collectively referred to as the "Securities." The
Securities offered pursuant to this Prospectus may be offered separately or
together in one or more series up to an aggregate public offering price of
$250,000,000 (or the equivalent thereof in foreign currency or currency units)
at individual prices and on terms to be determined at the time of the offering
and set forth in one or more supplements to this Prospectus (each, a "Prospectus
Supplement").
The specific terms of the Securities in respect of which this Prospectus is
being delivered will be set forth in the applicable Prospectus Supplement and,
among other things, will include, where applicable, (i) in the case of Debt
Securities, the specific designation, aggregate principal amount offered,
ranking, rate or rates of interest or the provisions for determining such rate
or rates and the time of payment thereof, maturity, currency of payment, terms
relating to redemption (whether mandatory, at the option of the Company or the
holder), terms for sinking fund payments, terms for conversion into Common
Stock, additional covenants and the initial public offering price, (ii) in the
case of shares of Preferred Stock, the number of shares, specific title and
stated value, any dividend, liquidation, redemption, conversion, exchange,
voting and other rights and restrictions and the initial public offering price
and (iii) in the case of shares of Common Stock, the number of shares of Common
Stock and the terms of the offering and sale thereof.
The applicable Prospectus Supplement will also contain information, where
applicable, about certain U.S. Federal income taxes, accounting and other
considerations relating to, and any listing on a securities exchange of, the
Securities covered by such Prospectus Supplement.
The Securities may be sold directly by the Company, through agents
designated by the Company from time to time or through underwriters or dealers
designated by the Company from time to time. If any agents of the Company or any
dealers or underwriters are involved in the sale of the Securities in respect of
which this Prospectus is being delivered, the names of such agents, dealers or
underwriters and any applicable agent's commission, dealer's purchase price or
underwriter's discount will be as set forth in or may be calculated from the
applicable Prospectus Supplement. The net proceeds to the Company from such sale
will be the purchase price of such Securities less such commission in the case
of an agent, the purchase price of such Securities in the case of a dealer or
the public offering price of such Securities less such discount in the case of
an underwriter and less, in each case, other attributable issuance expenses. See
"Plan of Distribution" for indemnification arrangements for agents, dealers, and
underwriters.
--------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is , 1996
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549, and at the regional offices of the Commission
located at the following addresses: Seven World Trade Center, 13th Floor, New
York, New York 10048 and Northwest Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661. Copies of such material can be obtained from the
Public Reference Section of the Commission, 450 Fifth Street, N.W., Washington,
D.C. 20549, upon the payment of fees prescribed by the Commission. In addition,
the Commission maintains a Web site that contains reports, proxy and information
statements and other information regarding registrants that file electronically
with the Commission at http://www.sec.gov. Similar information concerning the
Company can also be inspected at the offices of the Nasdaq National Market, at
1735 K Street, N.W., Washington, D.C. 20006.
This Prospectus does not contain all the information set forth in the
Registration Statement on Form S-3 (together with all amendments, exhibits and
schedules thereto, the "Registration Statement"), of which this Prospectus is a
part, which Forest has filed with the Commission under the Securities Act of
1933, as amended (the "Securities Act"). Statements contained herein concerning
the provisions of any contract or other document are necessarily summaries of
such contracts or documents filed with the Commission. Copies of the
Registration Statement are on file at the offices of the Commission and may be
obtained, upon payment of fees prescribed by the Commission, or may be examined
without charge at the public reference facilities of the Commission described
above.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates in this Prospectus by reference the
following documents, which have been filed with the Commission pursuant to the
Exchange Act (File No. 0-4597):
(a) The Company's Annual Report on Form 10-K for the year ended December
31, 1995 (the "1995 Annual Report");
(b) The Company's Quarterly Reports on Form 10-Q for the quarterly
periods ended March 31 and June 30, 1996; and
(c) The Company's Current Reports on Form 8-K dated April 15, August 7
and October 30, 1996.
All reports and any definitive proxy or information statements filed by the
Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this Prospectus and prior to the termination of the offering of the
Securities offered hereby shall be deemed to be incorporated by reference into
this Prospectus and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein, or contained in this Prospectus, shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any other subsequently filed
document that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
Any person, including any beneficial owner, receiving a copy of this
Prospectus may obtain without charge, upon request, a copy of any of the
documents incorporated by reference herein, except for the exhibits to such
documents (unless such exhibits are specifically incorporated by reference in
such documents). Such requests should be directed to Daniel L. McNamara,
Corporate Counsel and Secretary, Forest Oil Corporation, 1600 Broadway, Suite
2200, Denver, Colorado 80202 (telephone: (303) 812-1400).
2
<PAGE>
THE COMPANY
Forest and its subsidiaries are engaged in the acquisition, exploration,
development, production and marketing of natural gas and crude oil in North
America. The Company was incorporated in New York in 1924, the successor to a
company formed in 1916, and has been a publicly held company since 1969. The
Company is active in several of the major exploration and producing areas in and
offshore the United States and in Canada. Forest's principal reserves and
producing properties are located in the Gulf of Mexico, Texas, Oklahoma and
Canada. The Company operates from production offices located in Lafayette,
Louisiana and Denver, Colorado. In January 1996, the Company established an
administrative and production office in Calgary, Alberta, Canada. Forest's
corporate headquarters are located in Denver, Colorado. The Company's principal
offices are located at 1600 Broadway, Suite 2200, Denver, Colorado 80202
(telephone: (303) 812-1400).
USE OF PROCEEDS
Except as otherwise provided in an applicable Prospectus Supplement, the net
proceeds from the sale of the Securities will be used for the acquisition of oil
and gas properties, capital expenditures, the repayment of subordinated
debentures or other debt, or repayments of borrowings under revolving credit
agreements or for other general corporate purposes.
RATIO OF EARNINGS TO FIXED CHARGES AND EARNINGS
TO COMBINED FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
A description of the Company's ratio of earnings to fixed charges or
earnings to combined fixed charges and preferred stock dividends, as applicable,
on a consolidated basis, will appear in an applicable Prospectus Supplement.
DESCRIPTION OF DEBT SECURITIES
Debt Securities may be issued from time to time under one or more
indentures, each dated as of a date on or prior to the issuance of the Debt
Securities to which it relates. Senior Debt Securities and Subordinated Debt
Securities may be issued pursuant to separate indentures (respectively, a
"Senior Indenture" and a "Subordinated Indenture"), in each case between the
Company and a trustee (a "Trustee"), which may be the same Trustee, and in the
form that has been filed as an exhibit to the Registration Statement of which
this Prospectus is a part, subject to such amendments or supplements as may be
adopted from time to time. The Senior Indenture and the Subordinated Indenture,
as amended or supplemented from time to time, are sometimes referred to
individually as an "Indenture" and collectively as the "Indentures." Each
Indenture will be subject to and governed by the Trust Indenture Act of 1939, as
amended (the "TIA"). The statements made hereunder relating to the Debt
Securities and the Indentures are summaries of the anticipated provisions
thereof, do not purport to be complete and are subject to, and are qualified in
their entirety by reference to, all of the provisions of the applicable
Indenture, including the definitions therein of certain terms and those terms
made part of such Indenture by reference to the TIA, as in effect on the date of
such Indenture, and to such Debt Securities. Certain capitalized terms used
below and not defined have the respective meanings assigned to them in the
applicable Indenture.
TERMS
The Debt Securities will be unsecured obligations of the Company. The
Indebtedness represented by (i) Senior Debt Securities will rank PARI PASSU in
right of payment with all other unsecured and unsubordinated Indebtedness of the
Company and (ii) Subordinated Debt Securities will be subordinated in right of
payment to the prior payment in full of all Senior Indebtedness (as defined
below) of the Company. See "--Ranking of Debt Securities." The particular terms
of the Debt Securities offered by a Prospectus Supplement will be described in
such Prospectus Supplement, along with any applicable
3
<PAGE>
modifications of or additions to the general terms of the Debt Securities as
described herein and in the applicable Indenture and any applicable U.S. Federal
income tax considerations. Accordingly, for a description of the terms of any
Series of Debt Securities, reference must be made to both the Prospectus
Supplement relating thereto and the description of the Debt Securities set forth
in this Prospectus.
Each Indenture will provide for the issuance by the Company from time to
time of its Debt Securities in one or more Series. The aggregate principal
amount of Debt Securities which may be issued under each Indenture will be
unlimited and each Indenture will set forth the specific terms of any Series of
Debt Securities or provide that such terms shall be set forth in, or determined
pursuant to, an Authorizing Resolution and/or a supplemental indenture, if any,
relating to such Series.
The specific terms of each Series of Debt Securities will be set forth in
the applicable Prospectus Supplement relating thereto, including the following,
as applicable:
1. the title of such Debt Securities and whether such Debt Securities
are Senior Debt Securities or Subordinated Debt Securities;
2. the aggregate principal amount of such Debt Securities and any limit
on such aggregate principal amount;
3. the price (expressed as a percentage of the principal amount
thereof) at which such Debt Securities will be issued and, if other than the
principal amount thereof, the portion of the principal amount thereof
payable upon declaration of acceleration of the maturity thereof, or, if
applicable, the portion of the principal amount of such Debt Securities that
is convertible into Common Stock or the method by which any such portion
shall be determined;
4. if convertible into Common Stock, the terms on which such Debt
Securities are convertible, including the initial conversion price, the
conversion period, any events requiring an adjustment of the applicable
conversion price and any requirements relating to the reservation of such
shares of Common Stock for purposes of conversion;
5. the date or dates, or the method for determining such date or dates,
on which the principal of such Debt Securities will be payable and, if
applicable, the terms on which such maturity may be extended;
6. the rate or rates (which may be fixed or floating), or the method by
which such rate or rates shall be determined, at which such Debt Securities
will bear interest, if any;
7. the date or dates, or the method for determining such date or dates,
from which any such interest will accrue, the dates on which any such
interest will be payable, the record dates for such interest payment dates,
or the method by which such dates shall be determined, the persons to whom
such interest shall be payable, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30 day months;
8. the place or places where the principal of and interest, if any, on
such Debt Securities will be payable, where such Debt Securities may be
surrendered for registration of transfer or exchange and where notices or
demands to or upon the Company in respect of such Debt Securities and the
applicable Indenture may be served;
9. the period or periods, if any, within which, the price or prices at
which and the other terms and conditions upon which such Debt Securities
may, pursuant to any optional or mandatory redemption provisions, be
redeemed, as a whole or in part, at the option of the Company;
10. the obligation, if any, of the Company to redeem, repay or purchase
such Debt Securities pursuant to any Sinking Fund (as defined in the
applicable Indenture) or analogous provision or at the option of a holder
thereof, and the period or periods within which, the price or prices at
which and the
4
<PAGE>
other terms and conditions upon which such Debt Securities will be redeemed,
repaid or purchased, as a whole or in part, pursuant to such obligations;
11. if other than U.S. dollars, the currency or currencies in which the
principal of and interest, if any, on such Debt Securities are denominated
and payable, which may be a foreign currency or units of two or more foreign
currencies or a composite currency or currencies, and the terms and
conditions relating thereto;
12. whether the amount of payments of principal of or interest, if any,
on such Debt Securities may be determined with reference to an index,
formula or other method (which index, formula or method may, but need not
be, based on the yield on or trading price of other securities, including
United States Treasury securities, or on a currency, currencies, currency
unit or units, or composite currency or currencies) and the manner in which
such amounts shall be determined;
13. whether the principal of or interest, if any, on the Debt Securities
of the Series are to be payable, at the election of the Company or a holder
thereof, in a currency or currencies, currency unit or units or composite
currency or currencies other than that in which such Debt Securities are
denominated or stated to be payable and the period or periods within which,
and the terms and conditions upon which, such election may be made;
14. provisions, if any, granting special rights to the holders of Debt
Securities of the Series upon the occurrence of such events as may be
specified;
15. any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to Debt Securities of the
Series, whether or not such Events of Default (as defined below) or
covenants are consistent with the Events of Default or covenants described
herein;
16. whether Debt Securities of the Series are to be issuable initially
in temporary global form and whether any Debt Securities of the Series are
to be issuable in permanent global form and, if so, whether beneficial
owners of interests in any such security in permanent global form may
exchange such interests for Debt 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 the
applicable Indenture, and, if Debt Securities of the Series are to be
issuable as a Global Security (as defined below), the identity of the
depository for such Series;
17. the applicability, if any, of the defeasance and covenant defeasance
provisions of the applicable Indenture to the Debt Securities of the Series;
and
18. any other terms of the Series (which terms shall not be inconsistent
with the provisions of the Indenture under which the Debt Securities are
issued).
If so provided in the applicable Prospectus Supplement, the Debt Securities
may be issued at a discount below their principal amount and provide for less
than the entire principal amount thereof to be payable upon declaration of
acceleration of the maturity thereof ("Original Issue Discount Securities"). In
such cases, all material U.S. Federal income tax, accounting and other
considerations applicable to Original Issue Discount Securities will be
described in the applicable Prospectus Supplement.
Except as may be set forth in the applicable Prospectus Supplement, the Debt
Securities will not contain any provisions that would limit the ability of the
Company to incur Indebtedness or that would afford holders of Debt Securities
protection in the event of a highly leveraged transaction involving the Company
or in the event of a change of control. Reference is made to the applicable
Prospectus Supplement for information with respect to any deletions from,
modifications of or additions to the Events of Default or covenants of the
Company that are described below, including any addition of a covenant or other
provision providing event risk or similar protection.
5
<PAGE>
DENOMINATION, INTEREST, REGISTRATION AND TRANSFER
Unless otherwise described in the applicable Prospectus Supplement, the Debt
Securities of each Series will be issued only in registered form, without
coupons, in denominations of $1,000 and integral multiples thereof, or in such
other currencies or denominations as may be set forth in the applicable
Indenture or specified in, or pursuant to, an Authorizing Resolution and/or
supplemental indenture, if any, relating to such Series of Debt Securities.
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of and interest, if any, on any Series of Debt Securities will be
payable at the corporate trust office of the applicable Trustee, the address of
which will be stated in the applicable Prospectus Supplement; PROVIDED THAT, at
the option of the Company, payment of interest may be made by check mailed to
the address of the person entitled thereto as it appears in the applicable
register for such Debt Securities.
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any Series will be exchangeable for any
authorized denomination of other Debt Securities of the same Series and of a
like aggregate principal amount and tenor upon surrender of such Debt Securities
at the corporate trust office of the applicable Trustee or at the office of any
registrar designated by the Company for such purpose. In addition, subject to
certain limitations imposed upon Debt Securities issued in book-entry form, the
Debt Securities of any Series may be surrendered for registration of transfer or
exchange thereof at the corporate trust office of the applicable Trustee or at
the office of any registrar designated by the Company for such purpose. No
service charge will be made for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection with certain transfers and exchanges.
The Company may act as registrar and may change any registrar without notice.
MERGER, CONSOLIDATION OR SALE OF ASSETS
The Company shall not consolidate with or merge with or into any other
corporation or transfer all or substantially all of its property and assets as
an entirety to any person, unless (i) either the Company shall be the continuing
person, or the person (if other than the Company) formed by such consolidation
or into which the Company is merged or to which all or substantially all of the
properties and assets of the Company as an entirety are transferred is a
corporation organized and existing under the laws of the United States or any
State thereof or the District of Columbia which expressly assumes all of the
obligations of the Company under each Series of Debt Securities and the
Indenture with respect to each such Series and (ii) immediately before and
immediately after giving effect to such transaction, no Event of Default and no
event which, after notice or passage of time or both, would become an Event of
Default shall have occurred and be continuing. Notwithstanding the foregoing,
any Subsidiary may consolidate with, merge with or into or transfer all or part
of its properties and assets to the Company or any other Subsidiary or
Subsidiaries.
RANKING OF DEBT SECURITIES
SENIOR DEBT SECURITIES
The Senior Debt Securities will constitute unsecured senior obligations of
the Company and will rank PARI PASSU in right of payment with all other Senior
Indebtedness (as defined below) of the Company. However, the Senior Debt
Securities will be effectively subordinated in right of payment to all secured
Indebtedness of the Company to the extent of the value of the assets securing
such Indebtedness and will be effectively subordinated to all indebtedness of
the Company's Subsidiaries and all mandatory redemption preferred stock of the
Company's Subsidiaries. Except as otherwise set forth in the applicable Senior
Indenture or specified in an Authorizing Resolution and/or supplemental
indenture, if any, relating to a Series of Senior Debt Securities to be issued,
there will be no limitations in any Senior Indenture on the amount of additional
Indebtedness which may rank PARI PASSU with the Senior Debt Securities or on the
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amount of Indebtedness, secured or otherwise, which may be incurred or preferred
stock which may be issued by any of the Company's Subsidiaries.
SUBORDINATED DEBT SECURITIES
The Subordinated Debt Securities will constitute unsecured obligations of
the Company. Unless otherwise provided in the applicable Prospectus Supplement,
the payment of principal of, interest on and all other amounts owing in respect
of the Subordinated Debt Securities will be subordinated in right of payment to
the prior payment in full in cash of principal of, interest on and all other
amounts owing in respect of all Senior Indebtedness of the Company. Upon any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to creditors upon any total or partial
liquidation, dissolution, winding up, reorganization, assignment for the benefit
of creditors or marshaling of assets of the Company or in a bankruptcy,
reorganization, insolvency, receivership or other similar proceeding relating to
the Company or its property, whether voluntary or involuntary, all principal of,
interest on and all other amounts due or to become due upon all Senior
Indebtedness shall first be paid in full in cash, or such payment duly provided
for to the satisfaction of the holders of Senior Indebtedness, before any
payment or distribution of any kind or character is made on account of any
principal of, interest on or other amounts owing in respect of the Subordinated
Debt Securities, or for the acquisition of any of the Subordinated Debt
Securities for cash, property or otherwise. If any default occurs and is
continuing in the payment when due, whether at maturity, upon any redemption, by
declaration or otherwise, of any principal of, interest on, unpaid drawings for
letters of credit issued in respect of, or regularly accruing fees with respect
to, any Senior Indebtedness (a "Payment Default"), no payment of any kind or
character shall be made by or on behalf of the Company or any other person on
its or their behalf with respect to any principal of, interest on or other
amounts owing in respect of the Subordinated Debt Securities or to acquire any
of the Subordinated Debt Securities for cash, property or otherwise.
Upon the happening of any default or event of default (other than a Payment
Default) (including any event which with the giving of notice or the lapse of
time or both would become an event of default and including any default or event
of default which would result upon any payment with respect to the Subordinated
Debt Securities) with respect to any Senior Indebtedness of the Company, as such
default or event of default is defined therein or in the instrument or agreement
or other document under which it is outstanding, then upon written notice
thereof given to the Company and the Trustee by a holder or holders of any
Senior Indebtedness of the Company or their Representative (as defined in the
applicable Indenture) ("Payment Notice"), no payment shall be made by or on
behalf of the Company, with respect to the principal of, premium, if any, or
interest on the Subordinated Debt Securities, during the period (the "Payment
Blockage Period") commencing on the date of such receipt of such Payment Notice
and ending on the earlier of (x) the date, if any, on which such default is
cured or waived or ceases to exist or the Senior Indebtedness to which such
default relates is discharged and (y) the 120th day after the date of receipt of
such Payment Notice. The Company may resume payments on the Subordinated Debt
Securities after such Payment Blockage Period. Not more than one Payment Notice
may be given in any consecutive 360-day period with respect to any Senior
Indebtedness, irrespective of the number of defaults with respect to Senior
Indebtedness during such period, and the giving of a Payment Notice will not
prevent the payment of an installment of principal of or interest on the
Subordinated Debt Securities for more than 120 days, except that the
commencement of a Payment Blockage Period by any holders of or the trustee for
Senior Indebtedness other than Indebtedness under the Company's revolving loan
and letter of credit facility with The Chase Manhattan Bank, N.A. and a group of
other lenders (the "Bank Credit Facility"), (the "Initial Payment Blockage
Period") will not prevent the commencement of a subsequent Payment Blockage
Period (the "Subsequent Payment Blockage Period") by the Agent under the Bank
Credit Facility, PROVIDED, HOWEVER, that in no event may the Subsequent Payment
Blockage Period end later than the 179th day after the date of receipt of the
Payment Notice with respect to the Initial Payment Blockage Period.
Notwithstanding the foregoing, (a) no event of default that existed or was
continuing on the date of any Payment Notice shall be made the basis for the
giving of a subsequent Payment Notice unless all such
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<PAGE>
events of default shall have been cured or waived for a period of at least 90
consecutive days after such date, and (b) if the Company or the Trustee receives
any Payment Notice, a similar notice relating to or arising out of the same
default or facts giving rise to such default (whether or not such default is on
the same issue of Senior Indebtedness of the Company), unless cured or waived
for a period of at least 90 consecutive days, shall not be effective for
purposes of this paragraph.
The Subordinated Indentures will not restrict the amount of Senior
Indebtedness or other Indebtedness of the Company or any Subsidiary. As a result
of the foregoing provisions, in the event of the Company's insolvency, holders
of the Subordinated Debt Securities may recover ratably less than general
creditors of the Company.
"Senior Indebtedness" will be defined in each Subordinated Indenture as
Indebtedness of the Company, whether outstanding on the date of issue of any
Subordinated Debt Securities or thereafter created, incurred, assumed or
guaranteed by the Company, other than the following: (i) any Indebtedness as to
which, by the terms of the instrument creating or evidencing such Indebtedness,
it is expressly provided that such Indebtedness is subordinated in right of
payment to all Indebtedness of the Company not expressly subordinated to such
Indebtedness, (ii) any Indebtedness which, by its terms, expressly refers to the
Subordinated Debt Securities and states that such Indebtedness shall not be
senior, shall be PARI PASSU or shall be subordinated in right of payment to the
Subordinated Debt Securities and (iii) the Subordinated Debt Securities of the
same or another Series.
DISCHARGE
Unless otherwise provided in the applicable Prospectus Supplement, the
Company generally may terminate its obligations under any Series of Debt
Securities and the Indenture with respect to such Series, at any time, (a) by
delivering all outstanding Debt Securities of such Series to the applicable
Trustee for cancellation and paying all sums payable by it under such Debt
Securities and the Indenture with respect to such Series or (b) after giving
notice to the Trustee of its intention to defease all of the Debt Securities of
such Series, by irrevocably depositing with the Trustee or a paying agent (other
than the Company or a Subsidiary) (i) in the case of any Debt Securities of any
Series denominated in U.S. dollars, cash or U.S. Government Obligations
sufficient to pay all principal of and interest on such Debt Securities and (ii)
in the case of any Debt Securities of any Series denominated in any currency
other than U.S. dollars, an amount of the Required Currency sufficient to pay
all principal of and interest on such Debt Securities; PROVIDED that if such
irrevocable deposit pursuant to (b) above is made on or prior to one year from
the Stated Maturity for payment of principal of such Series of Debt Securities,
the Company shall have delivered to the Trustee either an opinion of counsel
with no material qualifications or a favorable ruling of the Internal Revenue
Service, in either case to the effect that holders of such Debt Securities (i)
will not recognize income, gain or loss for U.S. Federal income tax purposes as
a result of such deposit (and the defeasance contemplated in connection
therewith) and (ii) will be subject to U.S. Federal income tax on the same
amounts and in the same manner and at the same time as would have been the case
if such deposit and defeasance had not occurred.
MODIFICATION AND WAIVER
Modification and amendment of an Indenture will be permitted to be made by
the Company and the Trustee with the consent of the holders of not less than a
majority in principal amount of the outstanding Debt Securities of all Series
affected thereby (voting as a single class); PROVIDED that such modification or
amendment may not, without the consent of each holder of the Debt Securities
affected thereby, (i) change the Stated Maturity of the principal of or any
installment of interest with respect to the Debt Securities; (ii) reduce the
principal amount of, or the rate of interest on, the Debt Securities; (iii)
change the currency of payment of principal of or interest on the Debt
Securities; (iv) impair the right to institute suit for the enforcement of any
payment on or with respect to the Debt Securities; (v) reduce the above-stated
percentage of holders of the Debt Securities of any Series necessary to modify
or amend the Indenture
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<PAGE>
relating to such Series; (vi) modify the foregoing requirements or reduce the
percentage of outstanding Debt Securities necessary to waive any covenant or
past default; (vii) in the case of any Subordinated Indenture, modify the
subordination provisions thereof in a manner adverse to the holders of
Subordinated Debt Securities of any Series then outstanding; or (viii) in the
case of any convertible Debt Securities, adversely affect the right to convert
the Debt Securities into Common Stock in accordance with the provisions of the
applicable Indenture. Holders of not less than a majority in principal amount of
the Outstanding Debt Securities of all Series affected thereby (voting as a
single class) may waive certain past defaults and may waive compliance by the
Company with any provision of the Indenture relating to such Debt Securities
(subject to the immediately preceding sentence); PROVIDED that, (i) without the
consent of each holder of Debt Securities affected thereby, no waiver may be
made of a default in the payment of the principal of or interest on any Debt
Security and (ii) only the holders of a majority in principal amount of Debt
Securities of a particular Series may waive compliance with a provision of the
Indenture relating to such Series or the Debt Securities of such Series having
applicability solely to such Series.
EVENTS OF DEFAULT AND NOTICE THEREOF
Unless otherwise provided in the applicable Prospectus Supplement, each
Indenture will provide that the following events are "Events of Default" with
respect to any Series of Debt Securities issued thereunder (i) failure of the
Company to pay interest on any Debt Securities of such Series within 30 days of
when due or principal of any Debt Securities of such Series when due (including
any Sinking Fund installment); (ii) failure to perform any other agreement
contained in the Debt Securities of such Series or the Indenture relating to
such Series (other than an agreement relating solely to another Series of Debt
Securities) for 60 days after notice; (iii) certain events of bankruptcy,
insolvency or reorganization with respect to the Company. Additional or
different Events of Default, if any, applicable to the Series of Debt Securities
in respect of which this Prospectus is being delivered will be specified in the
applicable Prospectus Supplement.
Each Indenture will provide that the Trustee under such Indenture shall,
within 75 days after the occurrence of any default (the term "default" to
include the events specified above without grace or notice) with respect to any
Series of Debt Securities actually known to it, give to the holders of such Debt
Securities notice of such default; PROVIDED that, except in the case of a
default in the payment of principal of or interest on any of the Debt Securities
of such Series or in the payment of any Sinking Fund installment, the Trustee
for such Series shall be protected in withholding such notice if it in good
faith determines that the withholding of such notice is in the interest of the
holders of such Debt Securities. Each Indenture will require the Company to
certify to the Trustee under such Indenture quarterly as to whether any default
exists.
In case an Event of Default (other than an Event of Default resulting from
bankruptcy, insolvency or reorganization) with respect to any Series of Debt
Securities shall occur and be continuing, the Trustee for such Series or the
holders of at least 25% in aggregate principal amount of the Debt Securities of
such Series then outstanding, by notice in writing to the Company (and to the
Trustee for such Series if given by the holders of the Debt Securities of such
Series), will be entitled to declare all unpaid principal of and accrued
interest on such Debt Securities then outstanding to be due and payable
immediately. In case an Event of Default resulting from certain events of
bankruptcy, insolvency or reorganization shall occur, all unpaid principal of
and accrued interest on all Debt Securities of such Series then outstanding
shall be due and payable immediately without any declaration or other act on the
part of the Trustee for such Series or the holders of any Debt Securities of
such Series. Such acceleration may be annulled and past defaults (except, unless
theretofore cured, a default in payment of principal of or interest on the Debt
Securities of such Series) may be waived by the holders of a majority in
principal amount of the Debt Securities of such Series then outstanding upon the
conditions provided in the applicable Indenture.
Each Indenture will provide that no holder of the Debt Securities of any
Series issued thereunder may pursue any remedy under such Indenture unless the
Trustee for such Series shall have failed to act after,
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<PAGE>
among other things notice of an Event of Default and request by holders of at
least 25% in principal amount of the Debt Securities of such Series of which the
Event of Default has occurred and the offer to the Trustee for such Series of
indemnity satisfactory to it; PROVIDED, HOWEVER, that such provision does not
affect the right to sue for enforcement of any overdue payment on such Debt
Securities.
CONVERSION RIGHTS
The terms and conditions, if any, upon which the Debt Securities of any
Series will be convertible into Common Stock will be set forth in the Prospectus
Supplement relating thereto. Such terms will include the Conversion price (or
manner of calculation thereof), the conversion period, provisions as to whether
conversion will be at the option of the holders of such Series of Debt
Securities or at the option of the Company, the events requiring an adjustment
of the conversion price and provisions affecting conversion in the event of the
redemption of such Series of Debt Securities.
THE TRUSTEE
The Trustee for each Series of Debt Securities will be identified in the
applicable Prospectus Supplement. Each Indenture will contain certain
limitations on a right of a Trustee thereunder, as a creditor of the Company, to
obtain payment of claims in certain cases, or to realize on certain property
received in respect of any such claim as security or otherwise. Each Trustee
will be permitted to engage in other transactions; PROVIDED, HOWEVER, that if it
acquires any conflicting interest, it must eliminate such conflict or resign.
The holders of a majority in principal amount of all outstanding Debt
Securities of a Series (or if more than one Series is affected thereby, of all
Series so affected, voting as a single class) will have the right to direct the
time, method and place of conducting any proceeding for exercising any remedy or
power available to the Trustee for such Series or all such Series so affected.
In case an Event of Default shall occur (and shall not be cured) under any
Indenture relating to a Series of Debt Securities and is known to the Trustee
for such Series, such Trustee shall exercise such of the rights and powers
vested in it by such Indenture 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 own affairs. Subject to such provisions, no Trustee will be
under any obligation to exercise any of its rights or powers under the
applicable Indenture at the request of any of the holders of Debt Securities
unless they shall have offered to such Trustee security and indemnity
satisfactory to it.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by the laws of the
State of New York.
GLOBAL SECURITIES; BOOK-ENTRY SYSTEM
The Debt Securities of any Series may be issued in whole or in part in the
form of one or more global securities ("Global Securities") that will be
deposited with, or on behalf of, a depository (the "Depository") identified in
the Prospectus Supplement relating to such Series. Global Securities, if any,
issued in the United States are expected to be deposited with The Depository
Trust Company ("DTC"), as Depository. Global Securities will be issued in fully
registered form and may be issued in either temporary or permanent form. Unless
and until it is exchanged in whole or in part for the individual Debt Securities
represented thereby, a Global Security may not be transferred except as a whole
by the Depository for such Global Security to a nominee of such Depository or by
a nominee of such Depository to such Depository or another nominee of such
Depository or by such Depository or any nominee of such Depository to a
successor Depository or any nominee of such successor.
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<PAGE>
The specific terms of the depository arrangement with respect to any Series
of Debt Securities will be described in the Prospectus Supplement relating to
such Series. The Company expects that unless otherwise indicated in the
applicable Prospectus Supplement, the following provisions will apply to
depository arrangements.
Upon the issuance of a Global Security, the Depository for such Global
Security or its nominee will credit on its book-entry registration and transfer
system the respective principal amounts of the individual Debt Securities
represented by such Global Security to the accounts of persons that have
accounts with such Depository ("Participants"). Such accounts will be designated
by the underwriters, dealers or agents with respect to such Debt Securities or
by the Company if such Debt Securities are offered directly by the Company.
Ownership of beneficial interests in such Global Security will be limited to
Participants or persons that may hold interests through Participants.
The Company expects that, pursuant to procedures established by DTC,
ownership of beneficial interests in any Global Security with respect to which
DTC is the Depository will be shown on, and the transfer of that ownership will
be effected only through, records maintained by DTC or its nominee (with respect
to beneficial interests of Participants) and records of Participants (with
respect to beneficial interests of persons who hold through Participants).
Neither the Company nor the Trustee will have any responsibility or liability
for any aspect of the records of DTC or for maintaining, supervising or
reviewing any records of DTC or any of its Participants relating to beneficial
ownership interests in the Debt Securities. The laws of some states require that
certain purchasers of securities take physical delivery of such securities in
definitive form. Such limits and laws may impair the ability to own, pledge or
transfer beneficial interest in a Global Security.
So long as the Depository for a Global Security or its nominee is the
registered owner of such Global Security, such Depository or such nominee, as
the case may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes under the
applicable Indenture. Except as described below or in the applicable Prospectus
Supplement, owners of beneficial interest in a Global Security will not be
entitled to have any of the individual Debt Securities represented by such
Global Security registered in their names, will not receive or be entitled to
receive physical delivery of any such Debt Securities in definitive form and
will not be considered the owners or holders thereof under the applicable
Indenture. Beneficial owners of Debt Securities evidenced by a Global Security
will not be considered the owners or holders thereof under the applicable
Indenture for any purpose, including with respect to the giving of any
direction, instructions or approvals to the Trustee thereunder. Accordingly,
each person owning a beneficial interest in a Global Security with respect to
which DTC is the Depository must rely on the procedures of DTC and, if such
person is not a Participant, on the procedures of the Participant through which
such person owns its interests, to exercise any rights of a holder under the
applicable Indenture. The Company understands that, under existing industry
practice, if it requests any action of holders or if an owner of a beneficial
interest in a Global Security desires to give or take any action which a holder
is entitled to give or take under the applicable Indenture, DTC would authorize
the Participants holding the relevant beneficial interest to give or take such
action, and such Participants would authorize beneficial owners through such
Participants to give or take such actions or would otherwise act upon the
instructions of beneficial owners holding through them.
Payments of principal of, and any interest on, individual Debt Securities
represented by a Global Security registered in the name of a Depository or its
nominee will be made to or at the direction of the Depository or its nominee, as
the case may be, as the registered owner of the Global Security under the
applicable Indenture. Under the terms of the applicable Indenture, the Company
and the Trustee may treat the persons in whose name Debt Securities, including a
Global Security, are registered as the owners thereof for the purpose of
receiving such payments. Consequently, neither the Company nor the Trustee has
or will have any responsibility or liability for the payment of such amounts to
beneficial owners of Debt Securities (including principal and interest). The
Company believes, however, that it is currently the policy of DTC to immediately
credit the accounts of relevant Participants with such payments, in amounts
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proportionate to their respective holdings of beneficial interests in the
relevant Global Security as shown on the records of DTC or its nominee. The
Company also expects that payments by Participants to owners of beneficial
interests in such Global Security held through such Participants will be
governed by standing instructions and customary practices, as is the case with
securities held for the account of customers in bearer form or registered in
street name, and will be the responsibility of such Participants. Redemption
notices with respect to any Debt Securities represented by a Global Security
will be sent to the Depository or its nominee. If less than all of the Debt
Securities of any series are to be redeemed, the Company expects the Depository
to determine the amount of the interest of each Participant in such Debt
Securities to be redeemed to be determined by lot. None of the Company, the
Trustee, any Paying Agent or the Registrar for such Debt Securities will have
any responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests in the Global
Security for such Debt Securities or for maintaining any records with respect
thereto.
Neither the Company nor the Trustee will be liable for any delay by the
holders of a Global Security or the Depository in identifying the beneficial
owners of Debt Securities and the Company and the Trustee may conclusively rely
on, and will be protected in relying on, instructions from the holder of a
Global Security or the Depository for all purposes. The rules applicable to DTC
and its Participants are on file with the Securities and Exchange Commission.
If a Depository for any Debt Securities is at any time unwilling, unable or
ineligible to continue as depository and a successor depository is not appointed
by the Company within 90 days, the Company will issue individual Debt Securities
in exchange for the Global Security representing such Debt Securities. In
addition, the Company may at any time and in its sole discretion, subject to any
limitations described in the
Prospectus Supplement relating to such Debt Securities, determine not to have
any of such Debt Securities represented by one or more Global Securities and in
such event will issue individual Debt Securities in exchange for the Global
Security or Securities representing such Debt Securities. Individual Debt
Securities so issued will be issued in denominations of $1,000 and integral
multiples thereof.
DESCRIPTION OF EQUITY SECURITIES
GENERAL
The Restated Certificate of Incorporation of the Company (the "Certificate
of Incorporation") provides that the aggregate number of shares of all classes
of stock that the Company has authority to issue is 210,000,000 shares,
consisting of 200,000,000 shares of Common Stock, par value $.10 per share and
10,000,000 shares of preferred stock, par value $.01 per share.
As of November 6, 1996, the issued and outstanding Common Stock and
Preferred Stock of the Company was as follows:
<TABLE>
<CAPTION>
CLASS OF STOCK SHARES
- ---------------------------------------------------------------------- ------------
<S> <C>
Common Stock.......................................................... 26,886,451
$.75 Convertible Preferred Stock...................................... 2,877,673
</TABLE>
All issued and outstanding shares are fully paid and non-assessable.
The Company has warrants outstanding to purchase 3,500,000 shares of Common
Stock at a price of $10.50 per share (the "A Warrants"). The A Warrants expire
on July 27, 1999.
COMMON STOCK
The holders of Common Stock are entitled to one vote per share on all
matters submitted to a vote of the common shareholders of the Company. In
addition, such holders are entitled to receive ratably such dividends, if any,
as may be declared from time to time by the Board of Directors out of funds
legally
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<PAGE>
available therefor, subject to the payment of preferential dividends with
respect to (i) the $.75 Convertible Preferred Stock as set forth below and (ii)
any other preferred stock of the Company that from time to time may be
outstanding. The Company does not presently intend to pay dividends on the
Common Stock for the foreseeable future.
In the event of dissolution, liquidation or winding-up of the Company, the
holders of Common Stock are entitled to share ratably in all assets remaining
after payment of all liabilities of the Company and subject to the prior
distribution rights of the holders (i) the $.75 Convertible Preferred Stock and
(ii) any other preferred stock of the Company that preemptive or other rights to
acquire or subscribe for additional, unissued or treasury shares. All
outstanding shares of Common Stock are, and when issued, the shares of Common
Stock offered hereby will be, fully paid and nonassessable.
The transfer agent and registrar for the Common Stock is Chemical Mellon
Shareholder Services.
PREFERRED STOCK
The Company has one class of preferred stock outstanding, the $.75
Convertible Preferred Stock.
$.75 CONVERTIBLE PREFERRED STOCK
Each share of $.75 Convertible Preferred Stock is convertible into .7 shares
of Common Stock, subject to adjustment upon certain events. Holders of shares of
$.75 Convertible Preferred Stock are entitled to cumulative preferential cash
dividends at the annual rate of $.75 per share prior to the payment of any
dividends (except for dividends paid in shares of Common Stock) or other
distributions on (or certain repurchases of) Common Stock and on liquidation,
dissolution or winding up of the Company to preferential payment of $10 per
share plus accumulated and unpaid dividends before any distribution is made with
respect to Common Stock. Dividends on the $.75 Convertible Preferred Stock may
be paid in cash or, at the Company's election, in shares of Common Stock or in a
combination of cash and Common Stock. Common Stock is valued for dividend
payment purposes at between 75% and 90%, based upon trading volume, of the
average last reported sales price of the Common Stock for the 10 consecutive
trading days ending on the tenth calendar day prior to the date for determining
record holders entitled to the dividend payment.
Whenever dividends on the $.75 Convertible Preferred Stock have not been
paid, the amount of the deficiency, plus an amount equal to the accumulated
dividend for the then current quarterly dividend period, must be fully paid, or
declared and set apart for payment, before any dividend may be declared and paid
or set apart for payment upon the Common Stock, except for dividends paid in
shares of Common Stock.
Whenever $.75 Convertible Preferred Stock dividends are in arrears in an
amount equivalent to six full quarterly dividends, the holders of the $.75
Convertible Preferred Stock, voting separately as a class and with one vote per
share, will have the right to elect two directors. If two consecutive dividend
payments are in arrears, the holder of each share of $.75 Convertible Preferred
Stock will be entitled to a penalty conversion right enabling such holder to
convert each share, plus accumulated dividends, into a share of Common Stock
during a two-day period of 30 days after the second dividend payment date at a
conversion price of 75% of the average of the last reported sales prices of the
Common Stock during the period from such second dividend payment date to five
trading days prior to the conversion date. The $.75 Convertible Preferred Stock
is redeemable, in whole or in part, at the option of the Company, at a
redemption price of $10.00 per share, including accumulated and unpaid
dividends.
TERMS
The following description of the Preferred Stock summarizes certain general
terms and provisions of each series of Preferred Stock to which any Prospectus
Supplement may relate. Certain other terms of a
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<PAGE>
particular series of Preferred Stock will be summarized in the Prospectus
Supplement relating to such series. The summaries of the terms of the Preferred
Stock below and in any Prospectus Supplement do not, and will not, purport to be
complete and are subject to, and qualified in their entirety by reference to,
the Company's Certificate of Incorporation and the certificate of designation
establishing a series of Preferred Stock (each, a "Certificate of Designation"),
each of which will be filed with the Commission at or prior to the time of the
sale of such series of Preferred Stock.
The Board of Directors is authorized to provide for issuance of the
Preferred Stock of the Company from time to time, in one or more series, and to
fix the dividend rate, conversion or exchange rights, voting rights, terms of
redemption, redemption price or prices, liquidation preferences and
qualifications, limitations and restrictions thereof with respect to each
series.
An applicable Prospectus Supplement will set forth or describe other
specific terms regarding each series of Preferred Stock offered thereby,
including:
1. the title and stated value of such Preferred Stock;
2. the number of shares of such Preferred Stock offered, the liquidation
preference per share and the initial offering price of such Preferred Stock;
3. the dividend rate, period and/or payment date, or method of calculation
thereof, applicable to such Preferred Stock;
4. the date from which dividends on such Preferred Stock shall accumulate,
if applicable;
5. the provision for a sinking fund, if any, for such Preferred Stock;
6. the provision for redemption, if applicable, of such Preferred Stock;
7. any listing of such Preferred Stock on any securities exchange;
8. the terms and conditions, if applicable, upon which such Preferred Stock
will be convertible into Common Stock or exchangeable for Debt Securities,
including the conversion price or exchange rate, as the case may be (or the
manner of calculation thereof);
9. a discussion of U.S. Federal tax considerations applicable to such
Preferred Stock;
10. the relative ranking and preference of such Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding up of the
affairs of the Company;
11. any limitations on issuance of any series of Preferred Stock ranking
senior to or on a parity with such series of Preferred Stock as to dividend
rights and rights upon liquidation, dissolution or winding up of the affairs of
the Company;
12. the voting powers, if any, of such Preferred Stock, in addition to those
set forth below; and
13. any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock.
DIVIDENDS
The holders of the Preferred Stock of each series shall be entitled to
receive, when, as and if declared by the Board of Directors of the Company, out
of the funds of the Company legally available therefor, cash dividends at the
annual rate and on such dates as shall be set forth in the Prospectus Supplement
relating to such series. Each such dividend shall be paid to the holders of
record of shares of such series on such record date as shall be fixed by the
Board of Directors of the Company.
If dividends are not paid in full or declared in full and a sum set apart
for the payment thereof upon the Preferred Stock of a series and any other
Preferred Stock ranking on a parity as to dividends with the Preferred Stock of
such series, all dividends declared upon shares of Preferred Stock of such
series and any
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<PAGE>
other Preferred Stock ranking on a parity as to dividends shall be declared PRO
RATA so that in all cases the amount of dividends declared per share on the
Preferred Stock of such series and any other Preferred Stock ranking on a parity
as to dividends shall be in the same proportion as the amount of dividends that
would be paid on all shares of Preferred Stock of such series and such other
parity Preferred Stock if all such dividends (including dividends accrued or in
arrears) were paid in full. Except as provided in the preceding sentence, unless
full cumulative dividends on the Preferred Stock of a series have been paid or
declared in full and a sum set aside for the payment thereof, no dividends shall
be declared or paid or set aside for payment or other distribution made upon the
Company's Common Stock or any other class or series of capital stock of the
Company ranking junior to or on a parity with the Preferred Stock of the
applicable series as to dividends or liquidation rights, nor shall any Common
Stock or any other class or series of capital stock of the Company ranking
junior to or on a parity with the Preferred Stock of such series as to dividends
or liquidation rights be redeemed, purchased or otherwise acquired for any
consideration (or any payment made to or available for a sinking fund for the
redemption of any shares of such stock) by the Company or any subsidiary of the
Company (except by conversion into or exchange for stock of the Company ranking
junior, to the Preferred Stock of the applicable series as to dividends and
liquidation rights). Unless otherwise stated in the applicable Prospectus
Supplement, no interest, or sum of money in lieu of interest, will be payable in
respect of any dividend payment or payments on Preferred Stock of any series
which may be in arrears.
Dividends payable on the Preferred Stock of a Series for any period less
than a full quarterly dividend period shall be computed on the basis of a
360-day year of twelve 30-day months and the actual number of days elapsed in
the period for which payable.
VOTING RIGHTS
The holders of the Preferred Stock shall not, except as required by law or
as set forth in the applicable Prospectus Supplement, have any right or power to
vote on any question or in any proceeding or to be represented at, or to receive
notice of, any meeting of stockholders. On any matters on which the holders of
the Preferred Stock shall be entitled to vote, they shall be entitled to one
vote for each share held.
The approval of the holders of at least two-thirds of the then outstanding
shares of Preferred Stock of a series will be required to amend the applicable
Certificate of Designation to adversely change the preferences, special rights
or powers of the Preferred Stock of such series or to authorize, create or
increase the authorized amount of any class or series of capital stock of the
Company ranking prior to the Preferred Stock of such series either as to
dividend or liquidation rights; PROVIDED that the creation or issuance of any
class or series of capital stock of the Company not ranking prior to the
Preferred Stock of a series as to dividend or liquidation rights shall not
require the consent of the holders of the Preferred Stock of such series.
RANKING
The Preferred Stock to which any Prospectus Supplement may relate will rank
PARI PASSU with the outstanding shares of $.75 Convertible Preferred Stock with
respect to dividend rights and liquidation preference. The Preferred Stock also
will rank prior to the Company's Common Stock. Without the requisite vote of
holders of the Preferred Stock, as described above under "Voting Rights," no
class or series of capital stock can be created ranking senior to the Preferred
Stock as to dividend rights or liquidation preference.
LIQUIDATION RIGHTS
In the event of any liquidation, dissolution or winding up of the Company,
the holders of shares of the Preferred Stock of each series are entitled to
receive out of assets of the Company available for distribution to stockholders,
before any distribution of assets is made to holders of Common Stock or any
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<PAGE>
other class or series of capital stock of the Company (including any Preferred
Stock) which is junior as to liquidation rights to the Preferred Stock of such
series. Liquidating distributions in the amount set forth in the applicable
Prospectus Supplement, plus dividends accrued and accumulated but unpaid to the
date of such distribution. If, upon any liquidation, dissolution or winding up
of the Company, the amounts payable with respect to the Preferred Stock of such
series and any other Preferred Stock of the Company ranking as to any such
distribution on a parity with the Preferred Stock of such series are not paid in
full, the holders of the Preferred Stock of such series and of such other
Preferred Stock of the Company will share ratably in any such distribution of
assets in proportion to the full respective preferential amounts to which they
are entitled. After payment of the full amount of the liquidating distribution
to which they are entitled, the holders of shares of the Preferred Stock will
not be entitled to any further participation in any distribution of assets by
the Company. Neither a consolidation or merger of the Company with another
corporation nor a sale or transfer of all or part of the Company's assets for
cash or securities shall be considered a liquidation, dissolution or winding up
of the Company.
REDEMPTION PROVISIONS
The Preferred Stock of each series will have such optional or mandatory
redemption terms, if any, as shall be set forth in the applicable Prospectus
Supplement.
CONVERSION AND EXCHANGE RIGHTS
The terms and conditions, if any, upon which any series of Preferred Stock
is convertible into Common Stock or exchangeable into Debt Securities will be
set forth in the applicable Prospectus Supplement relating to such series of
Preferred Stock. Such terms will include (i) in the case such series of
Preferred Stock is convertible into Common Stock, (A) the number of shares of
Common Stock into which shares of such series of Preferred Stock are
convertible, (B) the conversion price (or manner of calculation thereof), (C)
the conversion period, (D) provisions as to whether conversion will be at the
option of the holders of such series of Preferred Stock or at the option of the
Company, (E) the events requiring an adjustment of the conversion price and (F)
provisions affecting conversion in the event of the redemption of such series of
Preferred Stock and (ii) in the case such series of Preferred Stock is
exchangeable into Debt Securities, (A) the principal amount of Debt Securities
into which shares of such series of Preferred Stock are exchangeable, (B) the
exchange period and (C) provisions as to whether exchange will be at the option
of the holders of such series of Preferred Stock or at the option of the
Company.
MISCELLANEOUS
The Preferred Stock will have no preemptive rights. All of the Preferred
Stock, upon payment in full therefor, will be fully paid and nonassessable.
ANTI-TAKEOVER PROVISIONS
Certain provisions in the Company's Restated Certificate of Incorporation
and By-laws, the Company's shareholders' rights plan, executive severance
agreements and the ownership position of Anschutz may have the effect of
encouraging persons considering unsolicited tender offers or other unilateral
takeover proposals to negotiate with the Board of Directors rather than pursue
non-negotiated takeover attempts.
CLASSIFIED BOARD OF DIRECTORS.
The Company's By-laws provide that the Board of Directors is divided into
four classes as nearly equal in number as possible, with each class having not
less than three members, whose four year terms of office expire at different
times in annual succession. A staggered board makes it more difficult for
shareholders to change the majority of the directors and instead promotes a
continuity of existing management.
16
<PAGE>
BLANK CHECK PREFERRED STOCK.
The Company's Restated Certificate of Incorporation authorizes the issuance
of blank check preferred stock. The Board of Directors can set the voting
rights, redemption rights, conversion rights and other rights relating to such
preferred stock and could issue such stock in either private or public
transactions. In some circumstances, the blank check preferred stock could be
issued and have the effect of preventing a merger, tender offer or other
takeover attempt which the Board of Directors opposes.
SHAREHOLDERS' RIGHTS PLAN.
In October 1993, the Board of Directors adopted a shareholders' rights plan
(the "Plan") and entered into the Rights Agreement. The Company issued a
dividend of a preferred stock purchase right (the "Rights") on each outstanding
share of Common Stock of the Company, which, after the Rights become
exercisable, entitles the holder to purchase 1/100th of a share of a newly
issued series of the Company's preferred stock at a purchase price of $30 per
1/100th of a preferred share, subject to adjustment. The Rights expire on
October 29, 2003 unless extended or redeemed earlier. The Rights will become
exercisable (unless previously redeemed or the expiration date of the rights has
occurred) following a public announcement that a person or group (an "Acquiring
Person") has acquired 20% or more of the Common Stock or has commenced (or
announced an intention to make) a tender offer or exchange offer for 20% or more
of the Common Stock. In certain circumstances each holder of Rights (other than
an Acquiring Person) would have the right to receive, upon exercise (i) shares
of Common Stock having a value significantly in excess of the exercise price of
the Rights, or (ii) shares of Common Stock of an acquiring company having a
value significantly in excess of the exercise price of the Rights.
PLAN OF DISTRIBUTION
The Company may sell Securities in any of three ways: (i) through
underwriters or dealers; (ii) directly to a limited number of institutional
purchasers or to a single purchaser, or (iii) through agents. Any such dealer or
agent, in addition to any underwriter, may be deemed to be an underwriter within
the meaning of the Securities Act. The terms of the offering of the Securities
with respect to which this Prospectus is being delivered will be set forth in
the applicable Prospectus Supplement, including the name or names of any
underwriters, dealers or agents, the purchase price of such Securities and the
proceeds to the Company from such sale, any underwriting discounts and other
items constituting underwriters' compensation, the public offering price and any
discounts or concessions which may be allowed or reallowed or paid to dealers
and any securities exchanges on which the Securities may be listed.
If underwriters are used in the sale of Securities, such Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The Securities may be offered to the public either through underwriting
syndicates represented by managing underwriters or directly by one or more
underwriters acting alone. Unless otherwise set forth in the applicable
Prospectus Supplement, the obligations of the underwriters to purchase the
Securities described in the applicable Prospectus Supplement will be subject to
certain conditions precedent, and the underwriters will be obligated to purchase
all such Securities if any are so purchased by them. Any public offering price
and any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
The Securities may be sold directly by the Company or through agents
designated by the Company from time to time. Any agents involved in the offer or
sale of the Securities in respect of which this Prospectus is being delivered,
and any commissions payable by the Company to such agents, will be set forth in
the applicable Prospectus Supplement. Unless otherwise indicated in the
applicable Prospectus Supplement, any such agent will be acting on a best
efforts basis for the period of its appointment.
17
<PAGE>
If dealers are utilized in the sale of any Securities, the Company will sell
the Securities to the dealers, as principals. Any dealer may resell the
Securities to the public at varying prices to be determined by the dealer at the
time of resale. The name of any dealer and the terms of the transaction will be
set forth in the Prospectus Supplement with respect to the Securities being
offered.
If so indicated in the applicable Prospectus Supplement, the Company will
authorize agents, underwriters or dealers to solicit offers by certain specified
institutions to purchase the Securities to which this Prospectus and the
applicable Prospectus Supplement relates from the Company at the public offering
price set forth in the applicable Prospectus Supplement, plus, if applicable,
accrued interest, pursuant to delayed delivery contracts providing for payment
and delivery on a specified date in the future. Such contracts will be subject
only to those conditions set forth in the applicable Prospectus Supplement, and
the applicable Prospectus Supplement will set forth the commission payable for
solicitation of such contracts.
Underwriters will not be obligated to make a market in any Securities. The
Company cannot predict the activity of trading in, or liquidity of, any
Securities.
Agents, dealers and underwriters may be entitled, under agreements entered
into with the Company, to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to contribution
by the Company to payments they may be required to make in respect thereof.
Agents, dealers and underwriters may be customers of, engage in transactions
with, or perform services for, the Company in the ordinary course of business.
LEGAL MATTERS
Certain legal matters in connection with the Securities offered hereby will
be passed upon for the Company by Vinson & Elkins L.L.P., Houston, Texas.
EXPERTS
The consolidated financial statements of the Company which appear in the
December 31, 1995 Annual Report on Form 10-K of the Company have been
incorporated by reference herein in reliance upon the report dated February 20,
1996 of KPMG Peat Marwick LLP, independent certified accountants, incorporated
by reference herein, and upon the authority of said firm as experts in
accounting and auditing. The report of KPMG Peat Marwick LLP refers to a change
in the method of accounting for oil and gas sales in 1994 and changes in the
method of accounting for income taxes and post retirement benefits other than
pensions in 1993.
The consolidated financial statements of ATCOR Resources, Ltd., which are
incorporated by reference in the Current Report on Form 8-K/A of Forest Oil
Corporation, dated January 31, 1996, from the registration statement, as amended
(No. 33-64949), on Form S-2 of Forest Oil Corporation, have been incorporated by
reference herein in reliance upon the report dated February 1, 1995 of Price
Waterhouse, independent auditors, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing. Price Waterhouse
is a Canadian partnership, resident in Canada.
18
<PAGE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS AND,
IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATION MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY, BY ANY UNDERWRITERS, AGENTS OR DEALERS OR
BY ANY OTHER PERSON. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL, OR A
SOLICITATION OF AN OFFER TO BUY, ANY OF THE SECURITIES OFFERED HEREBY TO ANY
PERSON OR BY ANYONE IN ANY JURISDICTION IN WHICH SUCH OFFER OR SOLICITATION MAY
NOT LAWFULLY BE MADE. NEITHER THE DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE
HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAD
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
Available Information.......................... 2
Incorporation of Certain Documents by
Reference.................................... 2
The Company.................................... 3
Use of Proceeds................................ 3
Ratio of Earnings to Fixed Charges and Earnings
to Combined Fixed Charges and Preferred Stock
Dividends.................................... 3
Description of Debt Securities................. 3
Description of Equity Securities............... 12
Plan of Distribution........................... 17
Legal Matters.................................. 18
Experts........................................ 18
</TABLE>
E
FOREST OIL CORPORATION
DEBT SECURITIES
PREFERRED STOCK
COMMON STOCK
---------------------
PROSPECTUS
---------------------
, 1996
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The expenses, other than underwriting discounts and commissions, in
connection with the offering are as follows (all amounts except for the
Securities and Exchange Commission filing fee are estimated);
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee............................. $ 75,758
Printing and engraving expenses........................................... 20,000
Legal fees and expenses................................................... 75,000
Accounting fees and expenses.............................................. 30,000
Blue sky qualification fees and expenses.................................. 1,000
Miscellaneous............................................................. 98,242
---------
Total................................................................. 300,000
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 721 through 725 of the Business Corporation Law of the State of New
York (the "BCL"), in which Forest Oil Corporation is incorporated, permit New
York corporations, acting through their boards of directors, to extend broad
protection to their directors, officers and other employees by way of indemnity
and advancement of expenses. These sections (1) provide that the statutory
indemnification provisions of the BCL are not exclusive, provided that no
indemnification may be made to or on behalf of any director or officer if a
judgment or other final adjudication adverse to the director or officer
establishes that his acts were committed in bad faith or were the result of
active and deliberate dishonesty and were material to the cause of action so
adjudicated, or that he personally gained in fact a financial profit or other
advantage to which he was not entitled, (2) establish procedures for
indemnification and advancement of expenses that may be contained in the
certificate of incorporation or by-laws, or, when authorized by either of the
foregoing, set forth in a resolution of the shareholders or directors or an
agreement providing for indemnification and advancement of expenses, (3) apply a
single standard for statutory indemnification for third-party and derivative
suits by providing that indemnification is available if the director or officer
acted, in good faith, for a purpose which he reasonably believed to be in the
best interests of the corporation, and, in criminal actions, had no reasonable
cause to believe that his conduct was unlawful, (4) eliminate the requirement
for mandatory statutory indemnification that the indemnified party be "wholly"
successful and (5) provide for the advancement of litigation expenses upon
receipt of an undertaking to repay such advance if the director or officer is
ultimately determined not to be entitled to indemnification. Section 726 of the
BCL permits the purchase of insurance to indemnify a corporation or its officers
and directors to the extent permitted. Essentially, the amended BCL allows
corporations to provide for indemnification of directors, officers and employees
except in those cases where a judgment or other final adjudication adverse to
the indemnified party establishes that the acts were committed in bad faith or
were the result of active and deliberate dishonesty or that the indemnified
party personally gained a financial profit or other advantage to which he was
not legally entitled.
Article IX of the By-laws of Forest Oil Corporation contains very broad
indemnification provisions which permit the Company to avail itself of the
amended BCL to extend broad protection to its directors, officers and employees
by way of indemnity and advancement of expenses. It sets out the standard under
which the Company will indemnify directors and officers, provides for
reimbursement in such instances, for the advancement or reimbursement for
expenses reasonably incurred in defending an action, and for the extension of
indemnity to persons other than directors and officers. It also establishes the
manner of handling indemnification when a lawsuit is settled. It is not intended
that this By-law is an exclusive method of indemnification.
II-1
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits:
<TABLE>
<C> <C> <S>
*1.1 -- Form of Underwriting Agreement with respect to Debt Securities (including
form of Terms Agreement).
*1.2 -- Form of Underwriting Agreement with respect to Equity Securities (including
form of Terms Agreement).
4.1 -- Restated Certificate of Incorporation of Forest Oil Corporation dated
October 14, 1993, incorporated herein by reference to Exhibit 3(i) to Form
10-Q for Forest Oil Corporation for the quarter ended September 30, 1993
(File No. 0-4597).
4.2 -- Certificate of Amendment of the Restated Certificate of Incorporation dated
as of July 20, 1995, incorporated herein by reference to Exhibit 3(i)(a) to
Form 10-Q for Forest Oil Corporation for the quarter ended June 30, 1995
(File No. 0-4597).
4.3 -- Certificate of Amendment of the Certificate of Incorporated dated as of July
26, 1995, incorporated herein by reference to Exhibit 3(i)(b) to Form 10-Q
for Forest Oil Corporation for the quarter ended June 30, 1995 (File No.
0-4597).
4.4 -- Restated By-Laws of Forest Oil Corporation as of May 9, 1990, Amendment No.
1 to By-Laws dated as of April 2, 1991, Amendment No. 2 to By-Laws dated as
of May 8, 1991, Amendment No. 3 to By-Laws dated as of July 30, 1991,
Amendment No. 4 to By-Laws dated as of January 17, 1992, Amendment No. 5 to
By-Laws dated as of March 18, 1993 and Amendment No. 6 to By-Laws dated as
of September 14, 1993, incorporated herein by reference to Exhibit 3(ii) to
Form 10-Q for Forest Oil Corporation for the quarter ended September 30,
1993 (File No. 0-4597).
4.5 -- Amendment No. 7 to By-Laws dated as of December 3, 1993, incorporated herein
by reference to Exhibit 3(ii)(a) to Form 10-K for Forest Oil Corporation for
the year ended December 31, 1993 (File No. 0-4597).
4.6 -- Amendment No. 8 to By-Laws dated as of February 24, 1994, incorporated
herein by reference to Exhibit 3(ii)(b) to Form 10-K for Forest Oil
Corporation for the year ended December 31, 1993 (File No. 0-4597).
4.7 -- Amendment No. 9 to By-Laws dated as of May 15, 1995, incorporated herein by
reference to Exhibit 3(ii)(c) to Form 10-Q for Forest Oil Corporation for
the quarter ended June 30, 1995 (File No. 0-4597).
4.8 -- Amendment No. 10 to By-Laws dated as of July 27, 1995, incorporated herein
by reference to Exhibit 3(ii)(d) to Form 10-Q for Forest Oil Corporation for
the quarter ended June 30, 1995 (File No. 0-4597).
*4.9 -- Form of Indenture for the Senior Debt Securities.
*4.10 -- Form of Senior Debt Security (included in Exhibit No. 4.9).
*4.11 -- Form of Indenture for the Subordinated Debt Securities.
*4.12 -- Form of Subordinated Debt Security (included in Exhibit No. 4.11).
</TABLE>
II-2
<PAGE>
<TABLE>
<C> <C> <S>
**5 -- Opinion of Vinson & Elkins L.L.P., as to the legality of the securities
being registered.
*23.1 -- Consent of KPMG Peat Marwick LLP.
**23.2 -- Consent of Vinson & Elkins L.L.P. (included in Exhibit No. 5).
*23.3 -- Consent of Price Waterhouse.
*24 -- Powers of Attorney (included on the signature pages hereof).
</TABLE>
- ------------------------
* Filed herewith
** To be filed by amendment.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial BONA FIDE offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions described under Item 15 above,
or otherwise, the Registrant 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 of 1933 and is, therefore, unenforceable. In
the event that a claim for indemnification against such liabilities (other than
the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made,
a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any fact 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. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the "Calculation of Registration
Fee" table in the effective Registration Statement;
(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;
II-3
<PAGE>
PROVIDED, HOWEVER, that paragraphs (1)(i) and (1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are incorporated by
reference in the Registration Statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, 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.
The undersigned Registrant hereby undertakes to file an application for the
purpose of determining the eligibility of the applicable trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939 ("Act") in
accordance with the rules and regulations of the Commission under Section
305(b)(2) of the Act.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Denver, State of Colorado, on November , 1996.
FOREST OIL CORPORATION
(Registrant)
By: /s/ WILLIAM L. DORN
-----------------------------------
William L. Dorn
CHAIRMAN OF THE BOARD
Each person whose signature appears below hereby appoints David H. Keyte, V.
Bruce Thompson and Daniel L. McNamara and each of them, any one of whom may act
without the joinder of the others, as his attorney-in-fact to sign on his behalf
and in the capacity stated below and to file all amendments and post-effective
amendments to this Registration Statement, which amendment or amendments may
make such changes and additions in this Registration Statement as such
attorney-in-fact may deem necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
/s/ ROBERT S. BOSWELL
- ------------------------------ President and Chief November , 1996
Robert S. Boswell Executive Officer
Vice President and Chief
/s/ DAVID H. KEYTE Financial Officer
- ------------------------------ (Principal Financial November , 1996
David H. Keyte Officer)
/s/ JOAN C. SONNEN
- ------------------------------ Controller (Principal November , 1996
Joan C. Sonnen Accounting Officer)
/s/ PHILIP F. ANSCHUTZ
- ------------------------------ Director November , 1996
Philip F. Anschutz
/s/ ROBERT S. BOSWELL
- ------------------------------ Director November , 1996
Robert S. Boswell
- ------------------------------ Director
William L. Britton
/s/ RICHARD J. CALLAHAN
- ------------------------------ Director November , 1996
Richard J. Callahan
II-5
<PAGE>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
/s/ CORTLANDT S. DIETLER
- ------------------------------ Director November , 1996
Cortlandt S. Dietler
/s/ WILLIAM L. DORN
- ------------------------------ Director November , 1996
William L. Dorn
/s/ JORDAN L. HAINES
- ------------------------------ Director November , 1996
Jordan L. Haines
/s/ JAMES H. LEE
- ------------------------------ Director November , 1996
James H. Lee
/s/ CRAIG D. SLATER
- ------------------------------ Director November , 1996
Craig D. Slater
/s/ DRAKE S. TEMPEST
- ------------------------------ Director November , 1996
Drake S. Tempest
/s/ MICHAEL B. YANNEY
- ------------------------------ Director November , 1996
Michael B. Yanney
II-6
<PAGE>
FOREST OIL CORPORATION
STANDARD PURCHASE AGREEMENT PROVISIONS
DEBT SECURITIES
INCLUDING FORM OF PURCHASE AGREEMENT
<PAGE>
FOREST OIL CORPORATION
STANDARD PURCHASE AGREEMENT PROVISIONS
DEBT SECURITIES
From time to time, Forest Oil Corporation, a New York corporation (the
"Company"), may enter into purchase agreements that provide for the sale of
designated debt securities to the purchaser or purchasers named therein. The
standard provisions set forth herein may be incorporated by reference in any
such purchase agreement ("Purchase Agreement"). The Purchase Agreement,
including the provisions incorporated therein by reference, is herein
sometimes referred to as this "Agreement." Unless otherwise defined herein,
terms defined in the Purchase Agreement are used herein as therein defined.
The Company proposes to issue and sell from time to time debt securities
registered under the registration statement referred to in Section 1(a)
("Registered Securities"). The Registered Securities will be issued under an
Indenture, dated as of , 1996 between the Company and
, as Trustee, Securities Resolutions (as defined in such Indenture),
including a Securities Resolution pertaining to the particular series of
Registered Securities involved in the offering ("Indenture"), and will have
varying designations, interest rates
<PAGE>
-2-
and times of payments of any interest, maturities, redemption provisions and
other terms, with all such terms for any particular series of the Registered
Securities being determined at the time of the sale. The Registered
Securities involved in any such offering are hereinafter referred to as the
"New Securities", and the purchaser or purchasers, as the case may be, which
agree to purchase the same are hereinafter referred to as the "Purchasers" of
such New Securities. The terms "you" and "your" refer to those Purchasers
who sign the Purchase Agreement either on behalf of themselves only or on
behalf of themselves and as representatives of the several Purchasers named
in Schedule I thereto ("Schedule I"), as the case may be, unless one or more
of such Purchasers shall have been appointed representative
("Representative") of all of the Purchasers who sign the Purchase Agreement,
in which case, the terms "you" and "your" shall mean such Purchaser acting in
its capacity as Representative.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to, and agrees with, each Purchaser as set forth below in this Section 1.
Certain terms used in this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933, as amended (the "Act"), and has filed with
the Securities and Exchange Commission (the "Commission") a
registration statement on such
<PAGE>
-3-
Form, including a related Prospectus, for the registration under the
Act of the offering and sale of the New Securities. The Company has
filed one or more amendments thereto, including the related Prospectus
Supplement, each of which has previously been furnished to you. The
registration statement has become effective.
(b) To the best of the Company's knowledge, no order preventing
or suspending the use of the Prospectus and Prospectus Supplement has
been issued by the Commission. On the Effective Date, the Registration
Statement did comply in all material respects with the applicable
requirements of the Act, the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the Trust Indenture Act of 1939, as
amended (the "TIA"), and the respective rules and regulations
thereunder. On the Effective Date, the Registration Statement did not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading, on the Effective Date and
on the Closing Date, the Indenture did comply in all material respects
with the requirements of the TIA and the rules thereunder and, on the
Effective Date, the Prospectus did not include any untrue statement of
a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which
<PAGE>
-4-
they were made, not misleading; PROVIDED, however, that the
Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement, or the
Prospectus and Prospectus Supplement (or any supplement thereto) in
reliance upon and in conformity with information furnished in writing
to the Company by or on behalf of any Purchaser through any
Representative specifically for inclusion in or omission from the
Registration Statement or the Prospectus and the Prospectus Supplement
(or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term the "Effective Date" shall mean
each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective. "Execution
Time" shall mean the date and time that a Purchase Agreement relating
to the offer and sale of the New Securities is executed and delivered
by the parties hereto. The "Preliminary Prospectus Supplement" shall
mean any preliminary prospectus supplement with respect to the offering
of the New Securities. The "Prospectus Supplement" shall mean any
prospectus supplement with respect to the offering of the New
Securities. "Prospectus" shall mean the form of prospectus relating to
the New Securities included in the Registration Statement at the
Effective Date. "Registration Statement" shall mean the
<PAGE>
-5-
registration statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as amended
at the Execution Time and, in the event any post-effective amendment
thereto becomes effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement as so amended.
"Rule 424" refers to such rule under the Act. Any reference herein to
the Registration Statement, the Preliminary Prospectus Supplement, the
Prospectus Supplement or the Prospectus shall be deemed to refer to and
include the documents (or any portions thereof) incorporated by
reference therein pursuant to Item 12 of Form S-3 whether filed under
the Exchange Act. Any reference herein to the Registration Statement,
a Preliminary Prospectus Supplement, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Exchange Act on or before the Effective Date of
the Registration Statement or the issue date of the Preliminary
Prospectus Supplement, the Prospectus Supplement or the Prospectus, as
the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement,
the Preliminary Prospectus Supplement, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the filing of any
document
<PAGE>
-6-
under the Exchange Act after the Effective Date of the Registration
Statement, or the issue date of the Preliminary Prospectus Supplement,
the Prospectus Supplement or the Prospectus, as the case may be, deemed
to be incorporated therein by reference.
(d) The only corporate subsidiaries of the Company are listed on
an exhibit to the Company's most recent Annual Report on Form 10-K
filed with the Commission prior to the Execution Time and are each
referred to herein as a "subsidiary" and are collectively referred to
herein as the "subsidiaries".
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of New York, and each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation or organization, as
the case may be, and each has the corporate power and authority to own
its properties and conduct its business as described in the Prospectus
and the Prospectus Supplement, and has been duly qualified as a foreign
corporation and is in good standing under the laws of each other
jurisdiction in which its ownership or leasing of its properties or its
conduct of its material business makes such qualification necessary,
except
<PAGE>
-7-
to the extent that any failure to so qualify or be in good standing
would not have a material adverse effect on the condition (financial or
other), earnings, business or properties of the Company and its
subsidiaries, taken as a whole.
(f) The issuance and sale of the New Securities to be sold by the
Company under this Agreement do not result in a breach of any of the
terms or provisions of, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default)
under, (i) the Restated Certificate of Incorporation or Bylaws of the
Company or its subsidiaries, (ii) any bond, debenture, note, loan
agreement, indenture, mortgage, deed of trust, lease or other agreement
or instrument to which the Company or its subsidiaries is now a party
or by which any of them is bound, or (iii) any order of any court or
governmental agency or authority entered in any proceeding to which the
Company or its subsidiaries was or is now a party or by which either of
them is bound, which default or breach would have a material adverse
effect on the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, taken as a whole.
(g) Neither the Company, nor any of its subsidiaries has
sustained since the date of the latest audited financial
<PAGE>
-8-
statements included or incorporated by reference in the Prospectus any
material loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from
any court or governmental action, order or decree, otherwise than as
set forth or contemplated in the Prospectus and Prospectus Supplement;
and, since the respective dates as of which information is given in the
Registration Statement and the Prospectus and the Prospectus
Supplement, there has not been any material increase in the long-term
debt of the Company or any of its subsidiaries.
(h) The Company has all requisite corporate power and authority
to enter into this Agreement, to issue, sell and deliver the New
Securities as provided herein and to consummate the transactions
contemplated herein. This Agreement has been duly authorized, executed
and delivered by the Company. Each consent, approval, authorization,
order, declaration or filing by or with any governmental agency or body
necessary for the offer and sale of the New Securities and the
execution, delivery and performance of this Agreement by the Company
and the consummation by the Company of the transactions contemplated
hereby, have been made or obtained, except such as may be necessary to
make the Registration Statement remain effective under the Act and to
qualify the New Securities for public offering by you under
<PAGE>
-9-
state securities or Blue Sky laws or by the National Association of
Securities Dealers, Inc. ("NASD") in connection with the purchase and
distribution of the Securities by the Purchasers.
(i) The actual and as adjusted capitalization of the Company is
as set forth under the heading "Capitalization" in the Prospectus
Supplement; the issued shares of capital stock of the Company conform
to the description thereof in the Prospectus and Prospectus Supplement
and have been duly authorized and validly issued and are fully paid and
nonassessable; all outstanding shares of capital stock of each of the
subsidiaries have been duly authorized and validly issued, and are
fully paid and nonassessable and (except as described in the
Registration Statement) are owned directly by the Company or by another
subsidiary of the Company free and clear of any liens, encumbrances,
equities or claims.
(j) The Indenture has been duly authorized, executed and
delivered, has been duly qualified under the TIA, and constitutes a
legal, valid and binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or other
laws affecting creditors' rights generally from time to time in
effect); and the New Securities have been duly authorized
<PAGE>
-10-
and, when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Purchasers
pursuant to this Agreement, will constitute a legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture
(subject, as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect). The shares
of Common Stock initially to be reserved for issuance and to be issued
upon conversion of the New Securities have been duly authorized and are
sufficient in number for the conversion of all the New Securities at
the initial conversion price or rate, as the case may be (prior to any
adjustment in such rate or price, as the case may be, pursuant to the
terms thereof) and such shares of Common Stock, when so issued upon
conversion (assuming a conversion price in excess of the par value of
the shares of Common Stock) in accordance with the Certificate of
Amendment applicable thereto, will be duly and validly issued, fully
paid and nonassessable.* The New Securities will conform to the
description thereof in the Prospectus and Prospectus Supple-
- --------------------
* Applicable if New Securities are convertible into Common Stock.
<PAGE>
-11-
ment and will not have been issued in violation of or subject to any
preemptive rights or rights of first refusal.
(k) Except as described in the Registration Statement, there are
no options, warrants, agreements, preemptive rights, conversion rights,
contracts or other rights in existence to purchase or acquire from the
Company any shares of the capital stock or securities or obligations
convertible into, or any contracts or commitments to issue or sell
shares of capital stock or any such rights or other securities of the
Company. The descriptions of the Company's retirement savings plans,
stock option, stock purchase and other stock plans or arrangements, and
the options or other rights granted and exercised thereunder, as set
forth in the Prospectus and Prospectus Supplement, are accurate and
fair summaries of such plans, arrangements, options and rights.
(l) There are no legal, regulatory, administrative or
governmental actions, suits or proceedings pending to which the Company
or any of its subsidiaries or any of their officers is a party or of
which any properties of the Company or any of its subsidiaries is the
subject except as set forth in the Prospectus and Prospectus
Supplement, or as individually or in the aggregate, do not now have and
are not reasonably expected in the future to have any material adverse
effect in the condition (financial or other), earnings,
<PAGE>
-12-
business or properties of the Company and its subsidiaries, taken as a
whole; and to the best knowledge of the Company, no such proceedings
are threatened or contemplated by any of such governmental, regulatory
or administrative authorities or others and there are no agreements,
contracts, leases or documents of the Company or any of its
subsidiaries that are required to be described in the Prospectus and
Prospectus Supplement or to be filed as exhibits to the Registration
Statement by the Act or the Exchange Act or the rules and regulations
thereunder which have not been described in all materials respects in
the Prospectus and Prospectus Supplement or filed as exhibits to the
Registration Statement.
(m) All material agreements to which the Company or any of its
subsidiaries is a party and which are required to be described in the
Registration Statement or the Prospectus and Prospectus Supplement are
described therein. The Company is not in breach of or in violation
under any of the material terms or provisions of, or in default under,
(i) any material contract, indenture, mortgage, deed of trust, permit,
license, note agreement or other material agreement or material
instrument to which the Company is a party or by which any of its
properties are bound, (ii) its Restated Certificate of Incorporation or
Bylaws, or (iii) any order, judgment, statute, rule or regulation of
any court or governmental, administrative or regulatory agency or body
hav-
<PAGE>
-13-
ing jurisdiction over the Company or any of its properties, except as
may be properly described in the Prospectus and Prospectus Supplement
or such as individually or in the aggregate do not now have and are not
reasonably expected to have a material adverse effect upon the
condition (financial or other), earnings, business or properties of the
Company and its subsidiaries, taken as a whole.
(n) The Company has obtained the agreement of each of the
Company's directors and executive officers that such persons will not,
for a period set forth in the Prospectus Supplement after the date of
the Prospectus Supplement, offer to sell, contract to sell or otherwise
sell (including without limitation in a short sale), grant any option
to purchase, or dispose of any shares of any equity securities of the
Company, any options or warrants to purchase any shares of any equity
securities of the Company, or any securities convertible into or
exchangeable for shares of any equity securities of the Company,
without the prior written consent of the Representatives except the
Company may issue securities pursuant to the Company's retirement
savings,
<PAGE>
-14-
stock option or other benefit or incentive plans maintained for its
officers, directors or employees.*
(o) The Company has not taken and will not take, directly or
indirectly, prior to the earlier of 90 days from the date of this
Agreement and the termination of the underwriting syndicate
contemplated by this Agreement, any action designed to stabilize or
manipulate the price of any security of the Company, or which caused or
resulted in, or which might in the future reasonably be expected to
cause or result in, stabilization or manipulation of the price of any
security of the Company.
(p) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the Exchange Act and the rules
and regulations of the Commission thereunder.
(q) The consolidated financial statements of the Company
(including the related notes and supporting schedules) filed as part of
the Registration Statement or included or incorporated by reference in
the Prospectus and Prospectus
- --------------------
* Applicable if New Securities are convertible into equity securities.
<PAGE>
-15-
Supplement present fairly in all material respects the condition
(financial or other) and results of operations of the Company and its
consolidated subsidiaries, at the dates and for the periods indicated,
and have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved, except as set forth in the notes to such financial statements
and except to the extent that certain footnote disclosures regarding
the unaudited financial statements have been omitted in accordance with
the applicable rules of the Commission. The amounts included in the
Registration Statement and the amounts in the Prospectus and Prospectus
Supplement under the captions "Prospectus Summary - Summary Financial
and Operating Data" and "Selected Financial and Operating Data" (if
information under such captions is set forth in the Prospectus or
Prospectus Supplement) fairly present, in all material respects, the
information shown therein and have been determined on a basis
consistent with the financial statements included in the Registration
Statement and the Prospectus and Prospectus Supplement.
2. DELIVERY AND PAYMENT. Delivery of and payment for the New Securities
shall be made at 9:00 AM, New York City time, on the date set forth in the
Purchase Agreement, or such later date as the Representative shall designate,
which date and time may be postponed by agreement between the Representative
and the
<PAGE>
-16-
Company or as provided in Section 8 hereof (such date and time of delivery
and payment for the New Securities being herein called the "Closing Date").
Delivery of the New Securities shall be made to the Representatives for the
respective accounts of the several Purchasers against payment by the several
Purchasers through the Representative of the purchase price thereof to or
upon the order of the Company in the manner specified in the Purchase
Agreement. Delivery of the New Securities shall be made at such location as
the Representative shall reasonably designate at least one business day in
advance of the Closing Date and payment for the New Securities shall be made
at the place specified in the Purchase Agreement. Certificates for the New
Securities shall be registered in such names and in such denominations as the
Representative may request not less than three full business days in advance
of the Closing Date.
The Company agrees to have the New Securities available for inspection,
checking and packaging by the Representative in New York, New York, not later
than 1:00 PM on the business day prior to the Closing Date.
3. OFFERING BY PURCHASERS. It is understood that the several Purchasers
propose to offer the New Securities for sale to the public as set forth in
the Prospectus and Prospectus Supplement.
<PAGE>
-17-
4. AGREEMENTS. The Company agrees with the several Purchasers that:
(a) Prior to the termination of the offering of the New Securities,
the Company will not file any amendment of the Registration Statement
or supplement to the Prospectus Supplement without your prior consent,
which consent shall not be unreasonably withheld. The Company will
promptly advise the Representative (i) when the Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, shall have become effective, (ii) when the Prospectus
Supplement, and any supplement thereto, shall have been filed with the
Commission pursuant to the Act, (iii) when, prior to termination of
the offering of the New Securities, any amendment to the Registration
Statement shall have been filed or become effective, (iv) of any
request by the Commission for any amendment of the Registration
Statement or supplement to the Prospectus Supplement or for any
additional information, (v) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the institution or threatening of any proceeding for that purpose
and (vi) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the New Securities
for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will use its best efforts
<PAGE>
-18-
to prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the New
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus and Prospectus Supplement as then
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Prospectus and Prospectus Supplement to
comply with the Act or the Exchange Act or the respective rules
thereunder, the Company promptly will prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct such
statement or omission or effect such compliance.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Representative an
earnings statement or statements of the Company and its
subsidiaries which will satisfy the provisions of Section 11(a) of
the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representative and counsel for the
Purchasers, without charge, signed copies of
<PAGE>
-19-
the Registration Statement (including exhibits thereto) and to each
other Purchaser a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Purchaser or
dealer may be required by the Act, as many copies of each Prospectus,
Preliminary Prospectus Supplement and Prospectus Supplement and any
supplement thereto as the Representative may reasonably request. The
Company will pay the expenses of printing or other production of all
documents relating to the offering.
(e) The Company will arrange for the qualification of the New
Securities for sale under the laws of such jurisdictions as the
Representative may designate, will maintain such qualifications in
effect so long as required for the distribution of the New Securities;
PROVIDED, HOWEVER, that the Company shall not be required to qualify
to do business in any jurisdiction where it is not now qualified or to
file a general consent to service of process in any jurisdiction. The
Company will pay the fee of the NASD in connection with its review of
the offering, if any.
(f) The Company will not, for the period set forth in the Prospectus
Supplement following the Execution Time, without the prior written
consent of the Representative, offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or announce the offering
of, any equ-
<PAGE>
-20-
ity securities into which the New Securities are convertible;
PROVIDED, HOWEVER, that the Company may issue equity securities (x)
upon conversion of the New Securities, (y) pursuant to any stock
option, retirement savings or other benefit or incentive plans
maintained for the Company's of ficers, directors or employees, in
effect at the Execution Time and (z) for the payment of regular
dividends on the Company's $.75 Convertible Preferred Stock.*
(g) The Company confirms as of the date hereof that it is in
compliance with all provisions of Section 1 of Laws of Florida,
Chapter 92-198, AN ACT RELATING TO DISCLOSURE OF DOING BUSINESS WITH
CUBA, and the Company further agrees that if it commences engaging in
business with the government of Cuba or with any person or affiliate
located in Cuba after the date the Registration Statement had become
effective with the Securities and Exchange Commission or with the
Florida Department of Banking and Finance (the "Department"),
whichever date is later, or if the information reported in the
Prospectus and Prospectus Supplement, if any, concerning the Company's
business with Cuba or with any person or affiliate located in Cuba
changes in any mate-
- -----------------------------
* Applicable if New Securities are convertible into equity securities.
<PAGE>
-21-
rial way, the Company will provide the Department notice of such business
or change, as appropriate, in a form acceptable to the Department.
5. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASERS. The obligations of
the Purchasers to purchase the New Securities shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant
to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) If filing of the Prospectus Supplement, or any supplement
thereto, is required pursuant to the Act, the Prospectus Supplement,
and any such supplement, will be filed in the manner and within the
time period required by the Act; and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to the Representatives the
opinion of Daniel L. McNamara, Esq., Corporate Counsel and Secretary
for the Company, dated the Closing Date, to the effect that:
<PAGE>
-22-
(i) each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is
chartered or organized, with full corporate power and authority
to own its properties and conduct its business as described in
the Prospectus and Prospectus Supplement, and is duly qualified
to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction in which its ownership or
leasing of its material properties or its conduct of its
material business makes such qualification necessary, except to
the extent the failure, individually or in the aggregate, to be
so qualified or in good standing could have a material adverse
effect on the condition (financial or other), earnings, business
or properties of the Company and its subsidiaries, taken as a
whole;
(ii) all the outstanding shares of capital stock of the
subsidiaries have been duly and validly authorized and issued
and are fully paid and nonassessable, and, except as otherwise
set forth in the Prospectus and Prospectus Supplement, all
outstanding shares of capital stock
<PAGE>
-23-
of the subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any
perfected security interest and, to the knowledge of such
counsel, any other security interests, claims, liens or
encumbrances;
(iii) the Company's authorized equity capitalization is as set
forth in the Prospectus and Prospectus Supplement; the capital
stock of the Company conforms to the description thereof
contained in the Prospectus and Prospectus Supplement; all of
the outstanding shares of capital stock have been duly
authorized and validly issued and are fully paid and
nonassessable and were not issued in violation of or subject to
any preemptive or other rights to subscribe for the capital
stock;
(iv) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the TIA, and
constitutes a legal, valid and binding instrument enforceable
against the Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency,
<PAGE>
-24-
moratorium or other laws affecting creditors' rights generally
from time to time in effect); and the New Securities have been
duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered to
and paid for by the Purchasers pur suant to this Agreement, will
constitute legal, valid and binding obligations of the Company
en titled to the benefits of the Indenture(subject, as to
enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, morato rium or other laws affecting
creditors' rights generally from time to ime in effect);
(v) the shares of Common Stock of the Company initially issuable
on conversion of the New Securities have been duly authorized by
the Company, and, when issued on such conversion (assuming a
conversion price in excess of the par value of the shares of
Common Stock) in accor dance with the Certificate of Amendment
relating thereto will be duly authorized, validly issued, fully
paid and nonassessable; the shares of Common Stock initially
issuable upon conversion of the New Securities at the initial
conversion price or rate, as the case may be, have been duly
<PAGE>
-25-
reserved for issuance upon such conversion and are sufficient in
number for the conversion of all of the New Securities at the
initial conversion price or rate, as the case may be (prior to
any adjustments in such rate pursuant to the terms thereof);
(vi) to the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries of a character
required to be disclosed in the Registration Statement which is
not adequately disclosed in the Prospectus and Prospectus
Supplement, and there is no contract, agreement, lease,
instrument, license or other document of a character required to
be described in the Registration Statement or the Prospectus and
Prospectus Supplement, or to be filed as an exhibit, which is
not described or filed as required; and the statements in the
Prospectus and
<PAGE>
-26-
Prospectus Supplement under the headings[*] fairly summarize
the matters therein described;
(vii) such counsel has no reason to believe that, at the
Effective Date, the Registration Statement contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus and
Prospectus Supplement include any untrue statement of a material
fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(viii) this Agreement has been duly authorized, executed and
delivered by the Company;
(ix) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation
of the transactions contemplated herein and the distri-
- ---------------------
* Insert appropriate captions in opinon, if relevant.
<PAGE>
-27-
bution of the New Securities by the Purchasers, except such as
have been obtained under the Act and such as may be required
under the blue sky or foreign laws of any jurisdiction in
connection with the purchase and distribution of the New
Securities by the Purchasers, and by the NASD, and such other
approvals (specified in such opinion) as have been obtained;
(x) neither the issuance, sale or delivery of the New
Securities, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation
of, or constitute a default under any law, rule or regulation
(except that such counsel need not express any opinion with
respect to any federal or state securities laws) or the Restated
Certificate of Incorporation or Bylaws of the Company or the
terms of any indenture or other agreement or instrument known to
such counsel and to which the Company or any of its subsidiaries
is a party or bound or any judgment, order, or decree known to
such counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative
agency,
<PAGE>
-28-
governmental body or arbitrator having jurisdiction over
the Company or any of its subsidiaries; and
(xi) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of any laws other than the Business Corporation Law
of the State of New York and the laws of any jurisdiction other than the
United States, to the extent he deems proper and specified in such opinion,
upon the opinion of other counsel of good standing whom he believes to be
reliable and who is satisfactory to counsel for the Purchasers and (B) as to
matters of fact, to the extent he deems proper, on certificates of
responsible offi cers of the Company and public officials. References to the
Prospectus and Prospectus Supplement in this paragraph (b) include any
supplements thereto at the Closing Date.
(c) The Company shall have furnished to the Representatives the opinion of
Vinson & Elkins L.L.P., counsel for the Company, dated the Closing Date, to
the effect that:
(i) the Registration Statement has become effective under the
Act; any required filing
<PAGE>
-29-
of the Prospectus and Prospectus Supplement, and any supplements
thereto, pursuant to the Act has been made in the manner and
within the time period required by the Act; to the best
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened
and the Registration Statement and the Prospectus and Prospectus
Supplement (other than the financial statements and other
financial and statistical information contained therein as to
which such counsel need express no opinion) comply as to form in
all material respects with the applicable requirements of Form S-3,
the Act and the Exchange Act and the respective rules and
regulations thereunder; and such counsel has no reason to
believe that, at the Effective Date, the Registration Statement
contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that
the Prospectus and Prospectus Supplement include any untrue
statement of a material fact or omit to state a material fact
necessary to make the statements
<PAGE>
-30-
therein, in the light of the circumstances under which they were
made, not misleading;
(ii) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation
of the transactions contemplated herein, except such as have
been obtained under the Act and such as may be required under
the blue sky or foreign laws of any jurisdiction in connection
with the purchase and distribution of the New Securities by the
Purchasers, and by the NASD, and such other approvals (specified
in such opinion) as have been obtained; and
(iii) neither the issuance, sale or delivery of the New
Securities, nor the consummation of any other of the
transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation
of, or constitute a default under any law, rule or regulation
(except that such counsel need not express any opinion with
respect to any federal or state securities laws) or the Restated
Certificate of Incorporation or Bylaws of the Company or the
terms of any indenture or other
<PAGE>
-31-
agreement or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound or any
judgment, order or decree known to such counsel to be applicable
to the Company or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Company or any of its
subsidiaries.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
Texas or the United States, to the extent they deem proper and specified in
such opinion, upon the opinion of other counsel of good standing whom they
believe to be reliable and who are satisfactory to counsel for the Purchasers
and (B) as to matters of fact, to the extent they deem proper, on
certificates of responsible officers of the Company and public officials.
References to the Prospectus and Prospectus Supplement in this paragraph (c)
include any supplements thereto at the Closing Date.
(d) The Representatives shall have received from Cahill Gordon & Reindel,
counsel for the Purchasers, such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the New Securities, the Registration
Statement, the Prospectus and Prospectus Supplement
<PAGE>
-32-
(together with any supplement thereto) and other related matters as the
Representative may reasonably require, and the Company shall have furnished
to such counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(e) The Company shall have furnished to the Representative a certificate
of the Company, signed by the Chairman of the Board or the President and the
principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus and Prospectus
Supplement, any supplement to the Prospectus Supplement and this Agreement
and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date pursuant to this Agreement;
(ii) no stop order suspending the effectiveness of the Registration
Statement has
<PAGE>
-33-
been issued and no proceedings for that purpose have beem
instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus and Prospectus Supplement (exclusive of any
supplement thereto), there has been no material adverse change in the
condition (financial or other), earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not
arising from transactions in the ordinary course of business, except
as set forth in or contemplated in the Prospectus and Prospectus
Supplement (exclusive of any supplement thereto).
(f) At the Closing Date, KPMG Peat Marwick LLP shall have furnished to the
Representative a letter or letters, dated as of the Closing Date, in form and
substance satisfactory to the Representative.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus and Prospectus Supplement (exclusive of
any supplement thereto), there shall not have been any change, or
<PAGE>
-34-
any development involving a prospective change, in or affecting the business
or properties of the Company and its subsidiaries, taken as a whole, the
effect of which is, in the judgment of the Representatives, so material and
adverse as to make it impractical or inadvisable to proceed with the offering
or delivery of the New Securities as contemplated by the Registration
Statement (exclusive of any amendment thereof) and the Prospectus and
Prospectus Supplement (exclusive of any supplement thereto).
(h) At the Closing Date, the Company shall have furnished to the
Representative a letter substantially in the form of Exhibit A hereto from
each executive officer and director of the Company addressed to the
Representative, in which each such person agrees not to offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or
announce an offering of, any shares of equity securities beneficially owned
by such person or any securities convertible into, or exchangeable for,
shares of equity securities for a period of specified in the Prospectus
Supplement following the Execution Time without the prior consent of
<PAGE>
-35-
the Representative, other than shares of equity securities disposed of as
bona fide gifts or by act of law.*
(i) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Act) or any notice given of any
intended or potential decrease in any such rating or of a possible
change in any such rating that does not indicate the direction of the
possible change.
(j) Prior to the Closing Date, the Company shall have
furnished to the Representative such further information,
certificates and documents as the Representative may reasonably request.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in
form and substance to the Representative and counsel for the Purchas-
- --------------------
* Applicable if New Securities are convertible into equity securities.
<PAGE>
-36-
ers, this Agreement and all obligations of the Purchasers hereunder may be
canceled at, or at any time prior to, the Closing Date by the Representative.
Notice of such cancellation shall be given to the Secretary of the Company
in writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Cahill Gordon & Reindel, counsel for the
Purchasers, at 80 Pine Street, New York, New York, on the Closing Date.
6. REIMBURSEMENT OF PURCHASERS' EXPENSES. If the sale of the New
Securities provided for herein is not consummated because any condition to
the obligations of the Purchasers set forth in Section 5 hereof is not
satisfied, because of any termination pursuant to Section 9 hereof or because
of any refusal, inability or failure on the part of the Company to perform
any agreement herein or comply with any provision hereof other than by reason
of a default by any of the Purchasers, the Company will reimburse the
Purchasers severally upon demand for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities.
<PAGE>
-37-
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Purchaser,
the directors, officers, employees and agents of each Purchaser and each
person who controls any Purchaser within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
Act, the Exchange Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or li
abilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
the Registration State ment for the registration of the New Securities as
originally filed or in any amendment thereof, or in any Preliminary
Prospectus Supplement or in the Prospectus Supplement, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal
or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
PROVIDED, HOWEVER, that the Company will not be liable in any such
<PAGE>
-38-
case to the extent that any such loss, claim, damage or liability arises out
of or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of any
Purchaser through the Representative specifically for inclusion therein; and
PROVIDED, FURTHER, that such indemnity with respect to any preliminary
prospectus supplement shall not inure to the benefit of the Purchaser (or any
person controlling the Purchaser) from whom the person asserting any such
loss, claim, damage or liability purchased the New Securities which are the
subject thereof if such person did not receive a copy of the Prospectus
Supplement (or the Prospectus Supplement as amended and supplemented) at or
prior to the confirmation of the sale of such New Securities to such person
in any case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in such preliminary
prospectus supplement was corrected in the Prospectus Supplement (or the
Prospectus Supplement as amended or supplemented) provided that the Company
shall have delivered the Prospectus Supplement, as amended or supplemented,
to the Representative on a timely basis to permit such delivery. This
indemnity agreement will be in addition to any liability which the Company
may otherwise have.
<PAGE>
-39-
(b) Each Purchaser severally agrees to indemnify and hold harmless the
Company, each of the Company's directors, each of the Company's officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Purchaser, but only with
reference to written information relating to such Purchaser furnished to the
Company by or on behalf of such Purchaser through the Representative
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability
which any Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 7, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations
<PAGE>
-40-
to any indemnified party other than the indemnification obligation provided
in paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel
to represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party
to represent the indemnified party would present such counsel with a conflict
of interest, (ii) the actual or potential defendants in, or targets of, any
such action include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party
<PAGE>
-41-
shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit
or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Purchasers agree to
contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Purchasers may be subject in such proportion as is
appropri-
<PAGE>
-42-
ate to reflect the relative benefits received by the Company on the one hand
and by the Purchasers on the other from the offering of the New Securities;
PROVIDED, HOWEVER, that in no case shall any Purchaser (except as may be
provided in any agreement among Purchasers relating to the offering of the
New Securities) be responsible for any amount in excess of the underwriting
discount or commission applicable to the New Securities purchased by such
Purchaser hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Purchasers shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand
and of the Purchasers on the other in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the offering (after deducting
expenses), and benefits received by the Purchasers shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as
set forth on the cover page of the Prospectus. Relative fault shall be
determined by reference to whether any alleged untrue statement or omission
relates to information provided by the Company or the Purchasers. The
Company and the Purchasers agree that it would not be just
<PAGE>
-43-
and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 7, each person who controls an Purchaser within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of a Purchaser shall have the same rights to contribution
as such Purchaser, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company
who shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company, subject in
each case to the applicable terms and conditions of this paragraph (d).
8. DEFAULT BY A PURCHASER. If any one or more Purchasers shall fail to
purchase and pay for any of the New Securities agreed to be purchased by such
Purchaser or Purchasers hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under
this Agreement, the remaining Purchasers shall be obligated severally to take
up and pay for (in the respective proportions which the
<PAGE>
-44-
principal amount of New Securities set forth opposite their names in Schedule
I to the Purchase Agreement bears to the aggregate principal amount of New
Securities set forth opposite the names of all the remaining Purchasers) the
New Securities which the defaulting Purchaser or Purchasers agreed but failed
to purchase; PROVIDED, HOWEVER, that in the event that the aggregate
principal amount of New Securities which the defaulting Purchaser or
Purchasers agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of New Securities set forth in Schedule I to the Purchase
Agreement, the remaining Purchasers shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the New Securities, and
if such nondefaulting Purchasers do not purchase all the New Securities, this
Agreement will terminate without liability to any nondefaulting Purchaser or
the Company. In the event of a default by any Purchaser as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
seven days, as the Representative shall determine in order that the required
changes in the Registration Statement and the Prospectus Supplement or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Purchaser of its liability, if any, to
the Company and any nondefaulting Purchaser for damages occasioned by its
default hereunder.
<PAGE>
-45-
9. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representative, by notice given to the Company
prior to delivery of and payment for the New Securities, if prior to such
time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the Nasdaq National Market (or on the principal exchange or
market on which the Company's Common Stock is then traded) or trading in
securities generally on the New York Stock or the Nasdaq National Market (or
on the principal exchange or market on which the Company's Common Stock is
then traded) shall have been suspended or limited or minimum prices shall
have been established on either of such Exchange or Market, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war
or other calamity or crisis the effect of which on financial markets is such
as to make it, in the judgment of the Representative, impracticable or
inadvisable to proceed with the offering or delivery of the New Securities as
contemplated by the Prospectus and Prospectus Supplement (exclusive of any
supplement thereto).
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of
the Company or its officers and of the Purchasers set forth in or made
pursuant to this Agreement will
<PAGE>
-46-
remain in full force and effect, regardless of any investigation made by or
on behalf of any Purchaser or the Company or any of the officers, directors
or controlling persons referred to in Section 7 hereof, and will survive
delivery of and payment for the Securities. The provisions of Sections 6 and
7 hereof shall survive the termination or cancellation of this Agreement.
11. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Purchasers, will be mailed,
delivered or telegraphed and confirmed to them at the address set forth in
the Purchase Agreement; or, if sent to the Company, will be mailed,
delivered, or telegraphed and confirmed to it at 1600 Broadway, Suite 2200,
Denver, Colorado 80202, Attention: Daniel L. McNamara, Esq.
12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and control ling persons referred to in Section 7
hereof, and no other person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York, without regard to the
principles of conflicts of laws.
14. COUNTERPARTS. This Agreement may be executed in more than one
counterpart each of which shall be deemed an
<PAGE>
-47-
original and each of which shall constitute one and the same instrument.
<PAGE>
FOREST OIL CORPORATION
PURCHASE AGREEMENT
DEBT SECURITIES
New York, New York
[Date]
[Name(s) of Purchaser(s) or
Name(s) of Co-Manager(s), if any
As Representative of the several
Purchasers]
[Address]
Dear Sirs:
Re: Debt Securities covered by Registration Statement
No. 333-[ ] (the "Registration Statement")
Forest Oil Corporation, a New York corporation (the "Company"), subject to
the terms and conditions and in reliance upon the representations and
warranties herein set forth, proposes and agrees to sell to each purchaser
named in Schedule I hereto (together, the "Purchasers"), for whom you (the
"Representative") are acting as representative, $________ aggregate
principal amount of its ___% ____________ due ___________ (the "New
Securities"), to be issued under an indenture (the "Indenture") to be dated
as of ______________, ____ between the Company and _______________, as
trustee (the "Trustee"). Each Purchaser agrees, severally and not jointly,
to purchase from the Company the principal amount of the New Securities set
forth opposite such Purchaser's name in Schedule I hereto.
The price at which the New Securities shall be purchased from the Company
by the Purchasers shall be ___% of the principal amount thereof plus
[accrued interest] [amortization of original issue discount], if any, on the
New Securities from ____________, ____. The New Securities will be offered
as set forth in the Prospectus Supplement relating to such New Securities.
<PAGE>
-2-
The New Securities will have the following terms:*
Interest Rate: ___% per annum accruing from _______, ____.
Interest Payment Dates: ___________ and _________
commencing __________, ____.
Maturity: ____________, ____
[Redemption Provisions:]
[Mandatory and Optional
Sinking Fund Provisions:]
All of the provisions contained in the document entitled "Forest Oil
Corporation Standard Purchase Agreement Provisions - Debt Securities," a copy
of which has been filed as Exhibit 1.2 to the Registration Statement and has
been previously furnished to you, are hereby incorporated by reference in
their entirety and shall be deemed to be a part of this Agreement to the same
extent as if such provisions had been set forth in full herein.
The "Closing Date" (as defined in Section 2 of the aforementioned Standard
Purchase Agreement Provisions) shall be ____________, ____.
[The payment for the New Securities shall be made in ____________ funds.]
[The place at which the New Securities shall be purchased shall be
_________________.]
[Notices to the [Purchasers] [Representative] shall be sent to the
following addresses:]
[We represent that we are authorized to act for the several Purchasers named
in Schedule I hereto in connection with this financing and any action under
this Agreement by any of us will be binding upon all the Purchasers.]
- ----------------------
* To be either described in the Prospectus and Prospectus Supplement for the
New Securities or included in this Agreement.
<PAGE>
-3-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Purchasers.
Very truly yours,
FOREST OIL CORPORATION
By:
----------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
[Name(s) of Purchaser(s) or
Name(s) of Representative, if any]
By:
By:
-----------------------------------
[For themselves and the other
several Purchasers named in
Schedule I to the foregoing
Agreement.]
<PAGE>
SCHEUDLE I
Principal Amount
of New Securities
Purchasers to be Purchased
- ---------- -----------------
$
---------------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . $
---------------
---------------
<PAGE>
Exhibit A*
FOREST OIL CORPORATION
PUBLIC OFFERING OF EQUITY CONVERTIBLE DEBT SECURITIES
__________, ____
[Name(s) of Purchaser(s) or
Name(s) of Co-Manager(s), if any
As Representative of the several Purchasers]
[Address]
Dear Sirs:
This letter is being delivered to you in connection with the Purchase
Agreement (the "Purchase Agreement") between Forest Oil Corporation, a New
York corporation (the "Company") and you as representative of a group of
Purchasers named therein (collectively, the "Purchasers"), relating to an
under-written public offering of $__________ aggregate principal amount of
its _____% due __________ (the "New Securities"), of the Company.
In order to induce you and the other Purchasers to enter into the Purchase
Agreement, the undersigned agrees not to offer, sell or contract to sell, or
otherwise dispose of, directly or indirectly, or announce an offering of, any
shares of New Securities beneficially owned by the undersigned or any
securities convertible into, or exchangeable for, shares of New Securities
for a period of ___ days following the day on which the Purchase Agreement is
executed without the prior consent of [________________________], other than
shares of New Securities disposed of as bona fide gifts or by act of law.
- -------------------
* Applicable if New Securities are convertible or exchangeable for equity
securities.
<PAGE>
-3-
If for any reason the Purchase Agreement shall be terminated prior to the
Closing Date (as defined in the Pur-chase Agreement), the agreement set forth
above shall likewise be terminated.
Sincerely,
-------------------------
Name:
--------------------
Title:
-------------------
Address:
----------------
<PAGE>
FOREST OIL CORPORATION
STANDARD PURCHASE AGREEMENT PROVISIONS
EQUITY SECURITIES
INCLUDING FORM OF PURCHASE AGREEMENT
<PAGE>
FOREST OIL CORPORATION
STANDARD PURCHASE AGREEMENT PROVISIONS
EQUITY SECURITIES
From time to time, Forest Oil Corporation, a New York corporation (the
"Company"), may enter into Purchase agreements that provide for the sale of
designated equity securities to the purchaser or purchasers named therein.
The standard provisions set forth herein may be incorporated by reference in
any such purchase agreement ("Purchase Agreement"). The Purchase Agreement,
including the provisions incorporated therein by reference, is herein
sometimes referred to as this "Agreement". Unless otherwise defined herein,
terms defined in the Purchase Agreement are used herein as therein defined.
The Company proposes to issue and sell from time to time equity
securities registered under the registration statement referred to in Section
1(a) ("Registered Securities"). The Registered New Securities referred to in
Schedule I of the Purchase Agreement are hereinafter referred to as the "Firm
New Securities." The Purchase Agreement may provide for an additional number
of Registered Securities (the "Additional New Securities") which the
Purchasers may purchase on the terms and conditions set forth in the
Agreement for the sole purpose of covering over-allotments. The Firm New
Securities and the Additional New Secu-
<PAGE>
-2-
rities, if any, are referred to as the "New Securities." Such securities may
be issued in one or more series, may have varying dividend and liquidation
preferences, voting rights, redemption provisions and other terms, with all
such terms for any particular series of the New Securities being determined
at the time of the sale. The purchaser or purchasers, as the case may be,
which agree to purchase the same are hereinafter referred to as the
"Purchasers" of such New Securities. The terms "you" and "your" refer to
those Purchasers who sign the Purchase Agreement either on behalf of
themselves only or on behalf of themselves only or on behalf of themselves
and as representatives of the several Purchasers named in Schedule I thereto
("Schedule I"), as the case may be, unless one or more of such Purchasers
shall have been appointed representative ("Representative") of all of the
Purchasers who sign the Purchase Agreement, in which case, the terms "you"
and "your" shall mean such Purchaser acting in its capacity as
Representative.
1. REPRESENTATIONS AND WARRANTIES. The Company represents
and warrants to, and agrees with, each Purchaser as set forth below in
this Section 1. Certain terms used in this Section 1 are defined in
paragraph (c) hereof.
(a) The Company meets the requirements for use of Form S-3 under
the New Securities Act of 1933, as amended (the
<PAGE>
-3-
"Act"), and has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on such Form, including a
related Prospectus, for the registration under the Act of the offering
and sale of the New Securities. The Company has filed one or more
amendments thereto, including the related Prospectus Supplement, each
of which has previously been furnished to you. The registration
statement has become effective.
(b) To the best of the Company's knowledge, no order preventing
or suspending the use of the Prospectus and Prospectus Supplement has
been issued by the Commission. On the Effective Date, the Registration
Statement did comply in all material respects with the applicable
requirements of the Act and the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and the respective rules and regulations
thereunder. On the Effective Date, the Registration Statement did not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading, and, on the Effective Date,
the Prospectus did not include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; PRO-
<PAGE>
-4-
VIDED, HOWEVER, that the Company makes no representations or warranties
as to the information contained in or omitted from the Registration
Statement, or the Prospectus and Prospectus Supplement (or any
supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Purchaser
through any Representative specifically for inclusion in or omission
from the Registration Statement or the Prospectus and the Prospectus
Supplement (or any supplement thereto).
(c) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term the "Effective Date" shall mean
each date that the Registration Statement and any post-effective
amendment or amendments thereto became or become effective. "Execution
Time" shall mean the date and time that a Purchase Agreement relating
to the offer and sale of New Securities is executed and delivered by
the parties hereto. The "Preliminary Prospectus Supplement" shall mean
any preliminary prospectus supplement with respect to the offering of
the New Securities. The "Prospectus Supplement" shall mean any
prospectus supplement with respect to the offering of the New
Securities. The "Prospectus" shall mean the form of prospectus
relating to the New Securities included in the Registration Statement
at the Effective Date. "Registration Statement" shall mean the
<PAGE>
-5-
registration statement referred to in paragraph (a) above, including
incorporated documents, exhibits and financial statements, as amended
at the Execution Time and, in the event any post-effective amendment
thereto becomes effective prior to the Closing Date (as hereinafter
defined), shall also mean such registration statement as so amended.
"Rule 424" refers to such rule under the Act. Any reference herein to
the Registration Statement, the Preliminary Prospectus Supplement, the
Prospectus Supplement or the Prospectus shall be deemed to refer to and
include the documents (or any portions thereof) incorporated by
reference therein pursuant to Item 12 of Form S-3 whether filed under
the Exchange Act. Any reference herein to the Registration Statement,
a Preliminary Prospectus Supplement, the Prospectus Supplement or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Exchange Act on or before the Effective Date of
the Registration Statement or the issue date of the Preliminary
Prospectus Supplement, the Prospectus Supplement or the Prospectus, as
the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration Statement,
the Preliminary Prospectus Supplement, the Prospectus Supplement or the
Prospectus shall
<PAGE>
-6-
be deemed to refer to and include the filing of any document under the
Exchange Act after the Effective Date of the Registration Statement, or
the issue date of the Preliminary Prospectus Supplement, the Prospectus
Supplement or the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
(d) The only corporate subsidiaries of the Company are listed on
an exhibit to the Company's most recent Annual Report on Form 10-K
filed with Commission prior to the Execution Time and are each referred
to herein as a "subsidiary" and are collectively referred to herein as
the "subsidiaries".
(e) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of New York, and each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation or organization, as
the case may be, and each has the corporate power and authority to own
its properties and conduct its business as described in the Prospectus
and the Prospectus Supplement, and has been duly qualified as a foreign
corporation and is in good standing under the laws of each other
jurisdiction in which its own-
<PAGE>
-7-
ership or leasing of its properties or its conduct of its material
business makes such qualification necessary, except to the extent that
any failure to so qualify or be in good standing would not have a
material adverse effect on the condition (financial or other),
earnings, business or properties of the Company and its subsidiaries,
taken as a whole.
(f) The issuance and sale of the New Securities to be sold by the
Company under this Agreement do not result in a breach of any of the
terms or provisions of, or constitute a default (or an event which,
with notice or lapse of time or both, would constitute a default)
under, (i) the Restated Certificate of Incorporation or Bylaws of the
Company or its subsidiaries, (ii) any bond, debenture, note, loan
agreement, indenture, mortgage, deed of trust, lease or other agreement
or instrument to which the Company or its subsidiaries is now a party
or by which any of them is bound, or (iii) any order of any court or
governmental agency or authority entered in any proceeding to which the
Company or its subsidiaries was or is now a party or by which either of
them is bound, which default or breach would have a material adverse
effect on the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries, taken as a whole.
<PAGE>
-8-
(g) Neither the Company, nor any of its subsidiaries has sustained
since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any court or governmental action, order or
decree, otherwise than as set forth or contemplated in the Prospectus and
Prospectus Supplement; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus and the
Prospectus Supplement, there has not been any material increase in the
long-term debt of the Company or any of its subsidiaries.
(h) The Company has all requisite corporate power and authority to
enter into this Agreement, to issue, sell and deliver the New Securities as
provided herein and to consummate the transactions contemplated herein. This
Agreement has been duly authorized, executed and delivered by the Company.
Each consent, approval, authorization, order, declaration or filing by or
with any governmental agency or body necessary for the offer and sale of the
New Securities and the execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the transactions
contemplated hereby, have been made or ob-
<PAGE>
-9-
tained, except such as may be necessary to make the Registration Statement
remain effective under the Act and to qualify the New Securities for public
offering by you under state securities or Blue Sky laws or by the National
Association of Securities Dealers, Inc. ("NASD") in connection with the
purchase and distribution of the New Securities by the Purchasers.
(i) The actual and as adjusted capitalization of the Company is as set
forth under the heading "Capitalization" in the Prospectus Supplement; the
issued shares of capital stock of the Company conform to the description
thereof in the Prospectus and Prospectus Supplement and have been duly
authorized and validly issued and are fully paid and nonassessable; all
outstanding shares of capital stock of each of the subsidiaries have been
duly authorized and validly issued, and are fully paid and nonassessable and
(except as described in the Registration Statement) are owned directly by the
Company or by another subsidiary of the Company free and clear of any liens,
encumbrances, equities or claims.
(j) The New Securities to be issued and sold by the Company to the
Purchasers hereunder have been duly authorized and, when issued and paid for
as contemplated herein, will be validly issued, fully paid and nonassessable
and
<PAGE>
-10-
will conform to the description thereof in the Prospectus and Prospectus
Supplement and will not have been issued in violation of or subject to any
preemptive rights or rights of first refusal. The shares of Common Stock
initially to be reserved for issuance and to be issued upon conversion of the
New Securities have been duly authorized and are sufficient in number for the
conversion of all the New Securities at the initial conversion price or rate,
as the case may be (prior to any adjustment in such rate or price, as the
case may be, pursuant to the terms thereof) and such shares of Common Stock,
when so issued upon conversion (assuming a conversion price in excess of the
par value of the shares of Common Stock) in accordance with the Certificate
of Amendment applicable thereto, will be duly and validly issued, fully paid
and non-assessable.*
(k) Except as described in the Registration Statement, there are no
options, warrants, agreements, preemptive rights, conversion rights,
contracts or other rights in existence to purchase or acquire from the
Company any shares
- ----------------
*This sentence applicable if New Securities are convertible into Common Stock.
<PAGE>
-11-
of the capital stock or securities or obligations convertible into, or any
contracts or commitments to issue or sell shares of capital stock or any such
rights or other securities of the Company. The descriptions of the Company's
retirement savings plans, stock option, stock purchase and other stock plans
or arrangements, and the options or other rights granted and exercised
thereunder, as set forth in the Prospectus and Prospectus Supplement, are
accurate and fair summaries of such plans, arrangements, options and rights.
(l) There are no legal, regulatory, administrative or governmental
actions, suits or proceedings pending to which the Company or any of its
subsidiaries or any of their officers is a party or of which any properties
of the Company or any of its subsidiaries is the subject except as set forth
in the Prospectus and Prospectus Supplement, or as individually or in the
aggregate, do not now have and are not reasonably expected in the future to
have any material adverse effect in the condition (financial or other),
earnings, business or properties of the Company and its subsidiaries, taken
as a whole; and to the best knowledge of the Company, no such proceedings are
threatened or contemplated by any of such governmental, regulatory or
administrative authorities or others and there are no agreements, contracts,
leases or documents of the Company or any of its subsidiaries that are
<PAGE>
-12-
required to be described in the Prospectus and Prospectus Supplement or to be
filed as exhibits to the Registration Statement by the Act or the Exchange
Act or the rules and regulations thereunder which have not been described in
all materials respects in the Prospectus and Prospectus Supplement or filed
as exhibits to the Registration Statement.
(m) All material agreements to which the Company or any of its
subsidiaries is a party and which are required to be described in the
Registration Statement or the Prospectus and Prospectus Supplement are
described therein. The Company is not in breach of or in violation under any
of the material terms or provisions of, or in default under, (i) any material
contract, indenture, mortgage, deed of trust, permit, license, note agreement
or other material agreement or material instrument to which the Company is a
party or by which any of its properties are bound, (ii) its Restated
Certificate of Incorporation or Bylaws, or (iii) any order, judgment,
statute, rule or regulation of any court or governmental, administrative or
regulatory agency or body having jurisdiction over the Company or any of its
properties, except as may be properly described in the Prospectus and
Prospectus Supplement or such as individually or in the aggregate do not now
have and are not reasonably expected to have a material adverse effect upon
the condition (financial
<PAGE>
-13-
or other), earnings, business or properties of the Company and its
subsidiaries, taken as a whole.
(n) The Company has obtained the agreement of each of the Company's
directors and executive officers that such persons will not, for a period set
forth in the Prospectus Supplement after the date of the Prospectus
Supplement, offer to sell, contract to sell or otherwise sell (including
without limitation in a short sale), grant any option to purchase, or dispose
of any shares of any equity stock of the Company, any options or warrants to
purchase any shares of any equity stock of the Company, or any securities
convertible into or exchangeable for shares of any equity stock of the
Company, without the prior written consent of the Representative except the
Company may issue securities pursuant to the Company's retirement savings,
stock option or other benefit or incentive plans maintained for its officers,
directors or employees.
(o) The Company has not taken and will not take, directly or
indirectly, prior to the earlier of 90 days from the date of this Agreement
and the termination of the Purchase syndicate contemplated by this Agreement,
any action designed to stabilize or manipulate the price of any security of
the Company, or which caused or resulted in, or
<PAGE>
-14-
which might in the future reasonably be expected to cause or result in,
stabilization or manipulation of the price of any security of the Company.
(p) KPMG Peat Marwick LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the Exchange Act and the rules and
regulations of the Commission thereunder.
(q) The consolidated financial statements of the Company (including
the related notes and supporting schedules) filed as part of the Registration
Statement or included or incorporated by reference in the Prospectus and
Prospectus Supplement present fairly in all material respects the condition
(financial or other) and results of operations of the Company and its
consolidated subsidiaries, at the dates and for the periods indicated, and
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved,
except as set forth in the notes to such financial statements and except to
the extent that certain footnote disclosures regarding the unaudited
financial statements have been omitted in accordance with the applicable
rules of the Commission. The amounts included in the Registration Statement
<PAGE>
-15-
and the amounts in the Prospectus and Prospectus Supplement under the
captions "Prospectus Summary--Summary Financial and Operating Data" and
"Selected Financial and Operating Data" fairly present, in all material
respects, the information shown therein and have been determined on a basis
consistent with the financial statements included in the Registration
Statement and the Prospectus and Prospectus Supplement.
2. DELIVERY AND PAYMENT. Delivery of and payment for the Firm New
Securities shall be made at 9:00 AM, New York City time, on the date set
forth in the Purchase Agreement, or such later date as the Representative
shall designate, which date and time may be postponed by agreement between
the Representative and the Company or as provided in Section 8 hereof (such
date and time of delivery and payment for the Firm New Securities being
herein called the "Closing Date"). Delivery of the Firm New Securities shall
be made to the Representative for the respective accounts of the several
Purchasers against payment by the several Purchasers through the
Representative of the purchase price thereof to or upon the order of the
Company in the manner specified in the Purchase Agreement. Delivery of the
Firm New Securities shall be made at such location as the Representative
shall reasonably designate at least one business day in advance of
<PAGE>
-16-
the Closing Date and payment for the New Securities shall be made at the
place specified in the Purchase Agreement. Certificates for the New
Securities shall be registered in such names and in such denominations as the
Representative may request not less than three full business days in advance
of the Closing Date.
The Company agrees to have the Firm New Securities available for
inspection, checking and packaging by the Representative in New York, New
York, not later than 1:00 PM on the business day prior to the Closing Date.
If there are any Additional New Securities, the Purchasers shall also
have the option to purchase, severally and not jointly, from the Company,
ratably in accordance with the number of shares of Firm New Securities to be
purchased by each of them (subject to such adjustment as you shall determine
to avoid fractional shares), all or a portion of the Additional New
Securities, if any, as may be necessary to cover over-allotments made in
connection with the offering of the Firm New Securities, at the same purchase
price per share to be paid by the Purchasers to the Company for the Firm New
Securities, all subject to the terms and conditions set forth in this
Agreement. This option may be exercised at any time (but not more than once)
<PAGE>
-17-
on or before the thirtieth day following the date hereof, by your written
notice to the Company. Such notice shall set forth the aggregate number of
shares of Additional New Securities as to which the option is being
exercised, and the date and time when the Additional New Securities are to be
delivered such date and time being herein referred to as the "Additional
Closing Date"); PROVIDED, however, that the Additional Closing Date shall not
be earlier than the Closing Date nor earlier than the business day after the
date on which the option shall have been exercised nor later than the eighth
business day after the date on which the option shall have been exercised.
The number of shares of Additional New Securities to be sold to each
Purchaser shall be the number which bears the same proportion to the
aggregate number of shares of Additional New Securities being purchased as
the number of shares of Firm New Securities set forth opposite the name of
such Purchaser on Schedule I to the Purchase Agreement bears to the total
number of shares of Firm New Securities (subject, in each case, to such
adjustment as you may determine to eliminate fractional shares.)
Payment of the purchase price for the Additional New Securities, if any,
shall be made on the Additional Closing Date in the same manner and at the
same office as the pay-
<PAGE>
-18-
ment for the Firm New Securities. The Company agrees to make available to
you for inspection and packaging at the place set forth in the Purchase
Agreement, at least one full business day prior to the Additional Closing
Date, the Additional New Securities so to be delivered in good delivery form
and in such denominations and registered in such names as you shall have
requested, all such requests to have been made in writing at least three full
business days prior to the Additional Closing Date, or if no such request is
made, registered in the names of the several Purchasers as set forth in
Schedule I to the Purchase Agreement.
The obligation of the Purchasers to purchase the Additional New
Securities shall be conditioned upon receipt of the certificate pursuant to
Section 5(e) hereto and such other supplemented opinions, certificates and
letters as you may reasonably request.
3. OFFERING BY PURCHASERS. It is understood that the several
Purchasers propose to offer the New Securities for sale to the public as set
forth in the Prospectus and Prospectus Supplement.
4. AGREEMENTS. The Company agrees with the several Purchasers that:
<PAGE>
-19-
(a) Prior to the termination of the offering of the New Securities, the
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus Supplement without your prior consent, which
consent shall not be unreasonably withheld. The Company will promptly advise
the Representative (i) when the Registration Statement, if not effective at
the Execution Time, and any amendment thereto, shall have become effective,
(ii) when the Prospectus Supplement, and any supplement thereto, shall have
been filed with the Commission pursuant to the Act, (iii) when, prior to
termination of the offering of the New Securities, any amendment to the
Registration Statement shall have been filed or become effective, (iv) of any
request by the Commission for any amendment of the Registration Statement or
supplement to the Prospectus Supplement or for any additional information,
(v) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or threatening
of any proceeding for that purpose and (vi) of the receipt by the Company of
any notification with respect to the suspension of the qualification of the
New Securities for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose. The Company will use its best efforts
<PAGE>
-20-
to prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the New Securities is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus and Prospectus Supplement as then supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary to
amend the Registration Statement or supplement the Prospectus and Prospectus
Supplement to comply with the Act or the Exchange Act or the respective rules
thereunder, the Company promptly will prepare and file with the Commission,
subject to the first sentence of paragraph (a) of this Section 4, an
amendment or supplement which will correct such statement or omission or
effect such compliance.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representative an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
<PAGE>
-21-
(d) The Company will furnish to the Representative and counsel for the
Purchasers, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Purchaser a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery of
a prospectus by a Purchaser or dealer may be required by the Act, as many
copies of each Prospectus, Preliminary Prospectus Supplement and Prospectus
Supplement and any supplement thereto as the Representative may reasonably
request. The Company will pay the expenses of printing or other production
of all documents relating to the offering.
(e) The Company will arrange for the qualification of the New
Securities for sale under the laws of such jurisdictions as the
Representative may designate, will maintain such qualifications in effect so
long as required for the distribution of the New Securities; PROVIDED,
however, that the Company shall not be required to qualify to do business in
any jurisdiction where it is not now qualified or to file a general consent
to service of process in any jurisdiction. The Company will pay the fee of
the NASD in connection with its review of the offering, if any.
(f) The Company will not, for the period set forth in the Prospectus
Supplement following the Execution Time,
<PAGE>
-22-
without the prior written consent of the Representative, offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or
announce the offering of, any other shares of equity securities or any
securities convertible into, or exchangeable for, shares of equity
securities; PROVIDED, HOWEVER, that the Company may issue equity securities
(x) pursuant to this Agreement, (y) pursuant to any stock option, retirement
savings or other benefit or incentive plans maintained for the Company's
officers, directors or employees, in effect at the Execution Time and (z) for
the payment of regular dividends on the Company's $.75 Convertible Preferred
Stock.
(g) The Company confirms as of the date hereof that it is in compliance
with all provisions of Section 1 of Laws of Florida, Chapter 92-198, AN ACT
RELATING TO DISCLOSURE OF DOING BUSINESS WITH CUBA, and the Company further
agrees that if it commences engaging in business with the government of Cuba
or with any person or affiliate located in Cuba after the date the
Registration Statement had become effective with the New Securities and
Exchange Commission or with the Florida Department of Banking and Finance
(the "Department"), whichever date is later, or if the information reported
in the Prospectus and Prospectus Supplement, if any, concerning the Company's
business with Cuba or with
<PAGE>
-23-
any person or affiliate located in Cuba changes in any material way, the
Company will provide the Department notice of such business or change, as
appropriate, in a form acceptable to the Department.
5. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASERS. The obligations
of the Purchasers to purchase the New Securities shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time, the Closing Date and the
Additional Closing Date, to the accuracy of the statements of the Company
made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) If filing of the Prospectus Supplement, or any supplement thereto,
is required pursuant to the Act, the Prospectus Supplement, and any such
supplement, will be filed in the manner and within the time period required
by the Act; and no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
<PAGE>
-24-
(b) The Company shall have furnished to the Representatives the opinion
of Daniel L. McNamara, Esq., Corporate Counsel and Secretary for the Company,
dated the Closing Date, to the effect that:
(i) each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own its
properties and conduct its business as described in the Prospectus and
Prospectus Supplement, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each
jurisdiction in which its ownership or leasing of its material
properties or its conduct of its material business makes such
qualification necessary, except to the extent the failure, individually
or in the aggregate, to be so qualified or in good standing could have
a material adverse effect on the condition (financial or other),
earnings, business or properties of the Company and its subsidiaries,
taken as a whole;
(ii) all the outstanding shares of capital stock of the subsidiaries
have been duly and validly authorized
<PAGE>
-25-
and issued and are fully paid and nonassessable, and, except as
otherwise set forth in the Prospectus and Prospectus Supplement, all
outstanding shares of capital stock of the subsidiaries are owned by
the Company either directly or through wholly owned subsidiaries free
and clear of any perfected security interest and, to the knowledge of
such counsel, any other security interests, claims, liens or
encumbrances;
(iii) the Company's authorized equity capitalization is as set forth
in the Prospectus Supplement; the capital stock of the Company conforms
to the description thereof contained in the Prospectus and Prospectus
Supplement; all of the outstanding shares of capital stock have been
duly authorized and validly issued and are fully paid and nonassessable
and were not issued in violation of or subject to any preemptive or
other rights to subscribe for the capital stock; the New Securities
have been duly authorized, and, when issued and delivered to and paid
for by the Purchasers pursuant to this Agreement, will be validly
issued, fully paid and nonassessable; based upon information provided
by the NASD and assuming the New Securities are sold in the manner
described in the Registration Statement, the New Securities are duly
authorized for quotation on the
<PAGE>
-26-
Nasdaq National Market*; the certificates for the New Securities are in
valid and sufficient form; and, except as otherwise set forth in the
Prospectus and Prospectus Supplement, the holders of outstanding shares
of capital stock of the Company are not entitled to preemptive or other
rights to subscribe for the New Securities;]
(iv) the shares of Common Stock of the Company initially issuable
on conversion of the New Securities have been duly authorized by the
Company, and, when issued on such conversion (assuming a conversion
price in excess of the par value of the shares of Common Stock) in
accordance with the Certificate of Amendment relating thereto will be
duly authorized, validly issued, fully paid and nonassessable; the
shares of Common Stock initially issuable upon conversion of the New
Securities at the initial conversion price or rate, as the case may be,
have been duly reserved for issuance upon such conversion and are
sufficient in number for the conversion of all of the New Securities at
the ini-
- ----------------------
* Revise or delete clause from opinion as appropriate.
<PAGE>
-27-
tial conversion price or rate, as the case may be (prior to any
adjustments in such rate pursuant to the terms thereof);
(v) to the best knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or
any of its subsidiaries of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Prospectus and Prospectus Supplement, and there is no contract,
agreement, lease, instrument, license or other document of a character
required to be described in the Registration Statement or the
Prospectus, and the Prospectus Supplement, or to be filed as an
exhibit, which is not described or filed as required; and the
statements in the Prospectus and Prospectus Supplement under the
headings* fairly summarize the matters therein described;
(vi) such counsel has no reason to believe that, at the Effective
Date, the Registration Statement con-
- ----------------------
* Insert appropriate captions in opinion, if relevant.
<PAGE>
-28-
tained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus and Prospectus
Supplement include any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) no consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation of the
transactions contemplated herein and the distribution of the New
Securities by the Purchasers, except such as have been obtained under
the Act and such as may be required under the blue sky or foreign laws
of any jurisdiction in connection with the purchase and distribution of
the New Securities by the Purchasers, and by the NASD, and such other
approvals (specified in such opinion) as have been obtained;
(ix) neither the issuance, sale or delivery of the New Securities,
nor the consummation of any other of the transactions herein
contemplated nor the fulfill-
<PAGE>
-29-
ment of the terms hereof will conflict with, result in a breach or
violation of, or constitute a default under any law, rule or regulation
(except that such counsel need not express any opinion with respect to
any federal or state securities laws) or the Restated Certificate of
Incorporation or Bylaws of the Company or the terms of any indenture or
other agreement or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound or any judgment,
order, or decree known to such counsel to be applicable to the Company
or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries; and
(x) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
In rendering such opinion, such counsel may rely (A) as to matters involving
the application of any laws other than the Business Corporation Law of the
State of New York and the laws of any jurisdiction other than the United
States to the extent he deems proper and specified in such opinion, upon the
opinion of other counsel of good standing whom he be-
<PAGE>
-30-
lieves to be reliable and who is satisfactory to counsel for the Purchasers
and (B) as to matters of fact, to the extent he deems proper, on certificates
of responsible officers of the Company and public officials. References to
the Prospectus and Prospectus Supplement in this paragraph (b) include any
supplements thereto at the Closing Date.
(c) The Company shall have furnished to the Representatives the opinion
of Vinson & Elkins L.L.P., counsel for the Company, dated the Closing Date,
to the effect that:
(i) the Registration Statement has become effective under the Act;
any required filing of the Prospectus and Prospectus Supplement, and
any supplements thereto, pursuant to the Act has been made in the
manner and within the time period required by the Act; to the best
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened and the Registration
Statement and the Prospectus and Prospectus Supplement (other than the
financial statements and other financial and statistical information
contained therein as to which such counsel need express no opinion)
comply as to form in all material respects with the applicable
<PAGE>
-31-
requirements of Form S-3, the Act and the Exchange Act and the
respective rules and regulations thereunder; and such counsel has no
reason to believe that, at the Effective Date, the Registration
Statement contained any untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus
and Prospectus Supplement include any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the
transactions contemplated herein, except such as have been obtained
under the Act and such as may be required under the blue sky or foreign
laws of any jurisdiction in connection with the purchase and
distribution of the New Securities by the Purchasers, and by the NASD,
and such other approvals (specified in such opinion) as have been
obtained; and
(iii) neither the issuance, sale or delivery of the New Securities,
nor the consummation of any other
<PAGE>
-32-
of the transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation of, or
constitute a default under any law, rule or regulation (except that
such counsel need not express any opinion with respect to any federal
or state securities laws) or the Restated Certificate of Incorporation
or Bylaws of the Company or the terms of any indenture or other
agreement or instrument known to such counsel and to which the Company
or any of its subsidiaries is a party or bound or any judgment, order
or decree known to such counsel to be applicable to the Company or any
of its subsidiaries of any court, regulatory body, administrative
agency, governmental body or arbitrator having jurisdiction over the
Company or any of its subsidiaries.
In rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the State of Texas or
the United States, to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they believe
to be reliable and who are satisfactory to counsel for the Purchasers and (B)
as to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. References to the
<PAGE>
-33-
Prospectus and Prospectus Supplement in this paragraph (c) include any
supplements thereto at the Closing Date.
(d) The Representative shall have received from Cahill Gordon &
Reindel, counsel for the Purchasers, such opinion or opinions, dated the
Closing Date, with respect to the issuance and sale of the New Securities,
the Registration Statement, the Prospectus and Prospectus Supplement
(together with any supplement thereto) and other related matters as the
Representative may reasonably require, and the Company shall have furnished
to such counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(e) The Company shall have furnished to the Representative a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Prospectus and
Prospectus Supplement, any supplement to the Prospectus Supplement and this
Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with
<PAGE>
-34-
the same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing Date
pursuant to this Agreement;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus and Prospectus Supplement (exclusive of any
supplement thereto), there has been no material adverse change in the
condition (financial or other), earnings, business or properties of the
Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set
forth in or contemplated in the Prospectus and Prospectus Supplement
(exclusive of any supplement thereto).
(f) At the Closing Date, KPMG Peat Marwick LLP shall have furnished to
the Representative a letter or letters, dated as of the Closing Date, in form
and substance satisfactory to the Representative.
<PAGE>
-35-
(g) Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus and Prospectus Supplement (exclusive of
any supplement thereto), there shall not have been any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company and its subsidiaries, taken as a whole, the effect
of which is, in the judgment of the Representative, so material and adverse
as to make it impractical or inadvisable to proceed with the offering or
delivery of the New Securities as contemplated by the Registration Statement
(exclusive of any amendment thereof) and the Prospectus and Prospectus
Supplement (exclusive of any supplement thereto).
(h) At the Closing Date, the Company shall have furnished to the
Representative a letter substantially in the form of Exhibit A hereto from
each executive officer and director of the Company addressed to the
Representative, in which each such person agrees not to offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or
announce an offering of, any shares of equity securities beneficially owned
by such person or any securities convertible into, or exchangeable for,
shares of equity securities for a period specified in the Prospectus
Supplement
<PAGE>
-36-
following the Execution Time without the prior consent of the Representative,
other than shares of equity securities disposed of as bona fide gifts or by
act of law.
(i) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change.
(j) Prior to the Closing Date, the Company shall have furnished to the
Representative such further information, certificates and documents as the
Representative may reasonably request.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or
if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in
form and substance to the Representative and counsel for the Purchasers, this
Agreement and all obligations of the Purchasers hereunder may be canceled
at, or at
<PAGE>
-37-
any time prior to, the Closing Date by the Representative. Notice of such
cancellation shall be given to the Secretary of the Company in writing or by
telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Cahill Gordon & Reindel, counsel for the
Purchasers, at 80 Pine Street, New York, New York, on the Closing Date.
6. REIMBURSEMENT OF PURCHASERS' EXPENSES. If the sale of the New
Securities provided for herein is not consummated because any condition to
the obligations of the Purchasers set forth in Section 5 hereof is not
satisfied, because of any termination pursuant to Section 9 hereof or because
of any refusal, inability or failure on the part of the Company to perform
any agreement herein or comply with any provision hereof other than by reason
of a default by any of the Purchasers, the Company will reimburse the
Purchasers severally upon demand for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
New Securities.
<PAGE>
-38-
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Purchaser, the
directors, officers, employees and agents of each Purchaser and each person
who controls any Purchaser within the meaning of either the Act or the
Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
Act, the Exchange Act or other Federal or state statutory law or regulation,
at common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement for the registration of the New
Securities as originally filed or in any amendment thereof, or in any
Preliminary Prospectus Supplement or in the Prospectus Supplement, or in any
amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and agrees to reimburse each such indemnified party, as incurred, for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action;
PROVIDED,
<PAGE>
-39-
HOWEVER, that the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Purchaser through
the Representative specifically for inclusion therein; and PROVIDED,
FURTHER, that such indemnity with respect to any preliminary prospectus
supplement shall not inure to the benefit of the Purchaser (or any person
controlling the Purchaser) from whom the person asserting any such loss,
claim, damage or liability purchased the New Securities which are the
subject thereof if such person did not receive a copy of the Prospectus
Supplement (or the Prospectus Supplement as amended and supplemented) at or
prior to the confirmation of the sale of such New Securities to such person
in any case where such delivery is required by the Act and the untrue
statement or omission of a material fact contained in such preliminary
prospectus supplement was corrected in the Prospectus Supplement (or the
Prospectus Supplement as amended or supplemented) provided that the Company
shall have delivered the Prospectus Supplement, as amended or supplemented,
to the Representative on a timely basis to permit such delivery.
<PAGE>
-40-
This indemnity agreement will be in addition to any liability which the
Company may otherwise have.
(b) Each Purchaser severally agrees to indemnify and hold harmless the
Company, each of the Company's directors, each of the Company's officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Purchaser, but only with
reference to written information relating to such Purchaser furnished to the
Company by or on behalf of such Purchaser through the Representative
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability
which any Purchaser may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party under
this Section 7, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it
<PAGE>
-41-
did not otherwise learn of such action and such failure results in
the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a) or (b) above. The indemnifying party
shall be entitled to appoint counsel of the indemnifying party's choice at
the indemnifying party's expense to represent the indemnified party in any
action for which indemnification is sought (in which case the indemnifying
party shall not thereafter be responsible for the fees and expenses of any
separate counsel retained by the indemnified party or parties except as set
forth below); PROVIDED, however, that such counsel shall be satisfactory to
the indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel chosen
by the indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemni-
<PAGE>
-42-
fied party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit
or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 7 is unavailable to or insufficient to hold harmless an
indemnified party for any
<PAGE>
-43-
reason, the Company and the Purchasers agree to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which the Company and one or more of the
Purchasers may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and by the
Purchasers on the other from the offering of the New Securities; PROVIDED,
however, that in no case shall any Purchaser (except as may be provided in
any agreement among Purchasers relating to the offering of the New
Securities) be responsible for any amount in excess of the Purchase discount
or commission applicable to the New Securities purchased by such Purchaser
hereunder. If the allocation provided by the immediately preceding sentence
is unavailable for any reason, the Company and the Purchasers shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand
and of the Purchasers on the other in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed
to be equal to the total net proceeds from the offering (after deducting
expenses), and benefits re-
<PAGE>
-44-
ceived by the Purchasers shall be deemed to be equal to the total Purchase
discounts and commissions, in each case as set forth on the cover page of the
Prospectus. Relative fault shall be determined by reference to whether any
alleged untrue statement or omission relates to information provided by the
Company or the Purchasers. The Company and the Purchasers agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 7, each person
who controls a Purchaser within the meaning of either the Act or the Exchange
Act and each director, officer, employee and agent of a Purchaser shall have
the same rights to contribution as such Purchaser, and each person who
controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the
<PAGE>
-45-
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
8. DEFAULT BY AN PURCHASER. If any one or more Purchasers shall fail to
purchase and pay for any of the New Securities agreed to be purchased by such
Purchaser or Purchasers hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under
this Agreement, the remaining Purchasers shall be obligated severally to take
up and pay for (in the respective proportions which the number of Firm New
Securities set forth opposite their names in Schedule I to the Purchase
Agreement bears to the aggregate number of Firm New Securities set forth
opposite the names of all the remaining Purchasers) the New Securities which
the defaulting Purchaser or Purchasers agreed but failed to purchase;
PROVIDED, HOWEVER, that in the event that the aggregate number of Firm New
Securities which the defaulting Purchaser or Purchasers agreed but failed to
purchase shall exceed 10% of the aggregate number of New Securities set
forth in Schedule I to the Purchase Agreement, the remaining Purchasers shall
have the right to purchase all, but shall not be under any obligation to
purchase any, of the New Securities, and if such nondefaulting Purchasers do
not purchase all the New Securities, this Agreement will terminate without
liability to any non-
<PAGE>
-46-
defaulting Purchaser or the Company. In the event of a default by any
Purchaser as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding seven days, as the Representative shall
determine in order that the required changes in the Registration Statement
and the Prospectus Supplement or in any other documents or arrangements may
be effected. Nothing contained in this Agreement shall relieve any
defaulting Purchaser of its liability, if any, to the Company and any
nondefaulting Purchaser for damages occasioned by its default hereunder.
9. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Representative, by notice given to the Company
prior to delivery of and payment for the New Securities, if prior to such
time (i) trading in the Company's Common Stock shall have been suspended by
the Commission or the Nasdaq National Market (or on the principal exchange or
market on which the Company's Common Stock is then traded) or trading in
securities generally on the New York Stock or the Nasdaq National Market (or
on the principal exchange or market on which the Company's Common Stock is
then traded) shall have been suspended or limited or minimum prices shall
have been established on either of such Exchange or Market, (ii) a banking
moratorium shall have been declared either by Federal or New
<PAGE>
-47-
York State authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the judgment of the Representative,
impracticable or inadvisable to proceed with the offering or delivery of the
New Securities as contemplated by the Prospectus and Prospectus Supplement
(exclusive of any supplement thereto).
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements,
representations, warranties, indemnities and other statements of the Company
or its officers and of the Purchasers set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Purchaser or the Company or any of
the officers, directors or controlling persons referred to in Section 7
hereof, and will survive delivery of and payment for the New Securities. The
provisions of Sections 6 and 7 hereof shall survive the termination or
cancellation of this Agreement.
11. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Purchasers, will be mailed,
delivered or telegraphed and
<PAGE>
-48-
confirmed to them, at the address set forth in the Purchase Agreement; or, if
sent to the Company, will be mailed, delivered, or telegraphed and confirmed
to it at 1600 Broadway, Suite 2200, Denver, Colorado 80202, Attention:
Daniel L. McNamara, Esq.
12. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7
hereof, and no other person will have any right or obligation hereunder.
13. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York, without regard to the
principles of conflicts of laws.
14. COUNTERPARTS. This Agreement may be executed in more than one
counterpart each of which shall be deemed an original and each of which shall
constitute one and the same instrument.
<PAGE>
SECURITIES FOREST OIL CORPORATION
PURCHASE AGREEMENT
EQUITY SECURITIES
New York, New York
[Date]
[Name(s) of Purchaser(s) or
Name(s) of Co-Manager(s), if any
As Representative of the several
Purchasers]
[Address]
Dear Sirs:
Re: Equity Securities covered by Registration Statement
NO. 333-[ ] (THE "REGISTRATION STATEMENT")
Forest Oil Corporation, a New York corporation (the "Company"), subject to
the terms and conditions and in reliance upon the representations and
warranties herein set forth, proposes and agrees to sell to each purchaser
named in Schedule I hereto (together, the "Purchasers"), for whom you (the
"Representative") are acting as representative, ________ shares of ________
$___ par value (the "Firm New Securities"). Each Purchaser agrees, severally
and not jointly, to purchase from the Company, at a purchase price of
$________ per share, the amount of the Firm New Securities set forth opposite
such Purchaser's name in Schedule I hereto. The Firm New Securities will be
offered as set forth in the Prospectus Supplement relating to such New
Securities.
The Company also proposes to grant to the Purchasers an option to
purchase in the aggregate, up to an additional ________ shares of the New
Securities, (the "Additional New Securities") at the same purchase price per
share as above agreed. Said option may be exercised in whole or in part at
any time (but not more than once), on or before the 30th day after the date
of the Prospectus Supplement upon written or telegraphic notice by the
Representative to the Company setting forth the number of shares of the
Additional New Securities as to which the several Purchasers are exercising
the option and the settlement date.
<PAGE>
-2-
The New Securities will have the following terms:*
[Dividend preferences:]
[Liquidation preferences:]
[Voting Rights]:
[Redemption Provisions:]
All of the provisions contained in the document entitled "Forest Oil
Corporation Standard Purchase Agreement Provisions--Equity New Securities," a
copy of which has been filed as Exhibit 1.1 to the Registration Statement and
has been previously furnished to you, are hereby incorporated by reference
in their entirety and shall be deemed to be a part of this Agreement to the
same extent as if such provisions had been set forth in full herein.
The "Closing Date" (as defined in Section 2 of the aforementioned
Standard Purchase Agreement Provisions) shall be ____________, ____.
[The payment for the New Securities shall be made in ____________ funds.]
[The place at which the New Securities shall be purchased shall be
___________.]
[Notices to the [Purchasers] [Representative] shall be sent to the
following addresses:]
[We represent that we are authorized to act for the several Purchasers
named in Schedule I hereto in connection with this financing and any action
under this Agreement by any of us will be binding upon all the Purchasers.]
- ------------------------
* Complete, if applicable. To be either described in the Prospectus and
Prospectus Supplement for the New Securities or included in this
Agreement.
<PAGE>
-3-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company and the several Purchasers.
Very truly yours,
FOREST OIL CORPORATION
By:
-------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
[Name(s) of Purchaser(s) or
Name(s) of Representative, if any]
By:
------------------------------
By:
------------------------------
[For themselves and the other several
Purchasers named in Schedule I to the
foregoing agreement.]
<PAGE>
SCHEDULE I
Number of Firm
New Securities
Purchaser to be Purchased
- --------- ---------------
$
Total..................................... __________
<PAGE>
EXHIBIT A
FOREST OIL CORPORATION
PUBLIC OFFERING OF EQUITY NEW SECURITIES
__________, ____
[Name(s) of Purchaser(s) or
Name(s) of Co-Manager(s), if any
As Representative of the several Purchasers]
Dear Sirs:
This letter is being delivered to you in connection with the Purchase
Agreement (the "Purchase Agreement") between Forest Oil Corporation, a New
York corporation (the "Company") and you as representative of a group of
Purchasers named therein (collectively, the "Purchasers"), relating to an
underwritten public offering of ____________, $__ par value (the "New
Securities"), of the Company.
In order to induce you and the other Purchasers to enter into the
Purchase Agreement, the undersigned agrees not to offer, sell or contract to
sell, or otherwise dispose of, directly or indirectly, or announce an
offering of, any shares of New Securities beneficially owned by the
undersigned or any securities convertible into, or exchangeable for, shares
of New Securities for a period of ____ days following the day on which the
Purchase Agreement is executed without the prior consent of
[_________________], other than shares of New Securities disposed of as bona
fide gifts or by act of law.
If for any reason the Purchase Agreement shall be terminated prior to
the Closing Date (as defined in the Purchase Agreement), the agreement set
forth above shall likewise be terminated.
Sincerely,
----------------------------
Name:
-----------------------
Title:
---------------------
Address:
-------------------
<PAGE>
- -----------------------------------------------------------------------------
FOREST OIL CORPORATION
and
, TRUSTEE
------------------------
INDENTURE
Dated as of
------------------------
Debt Securities
- -----------------------------------------------------------------------------
<PAGE>
CROSS-REFERENCE TABLE
Indenture
TIA Section Section
- ----------- ---------
SECTION 310 (a)(1) ............................. 8.10
(a)(2) ............................. 8.10
(a)(3) ............................. N.A.
(a)(4) ............................. N.A.
(a)(5) ............................. 8.08
(b) ................................ 8.08; 8.10; 11.02
(c) ................................ N.A.
SECTION 311 (a) ................................ 8.11
(b) ................................ 8.11
(c) ................................ N.A.
SECTION 312 (a) ................................ 2.06
(b) ................................ 11.03
(c) ................................ 11.03
SECTION 313 (a) ................................ 8.06
(b)(1) ............................. N.A.
(b)(2) ............................. 8.06
(c) ................................ 8.06; 11.02
(d) ................................ 8.06
SECTION 314 (a) ................................ 5.09; 11.02
(b) ................................ N.A.
(c)(1) ............................. 11.04
(c)(2) ............................. 11.04
(c)(3) ............................. N.A.
(d) ................................ N.A.
(e) ................................ 11.05
(f) ................................ N.A.
SECTION 315 (a) ................................ 8.01(b)
(b) ................................ 8.05; 11.02
(c) ................................ 8.01(a)
(d) ................................ 8.01(c)
(e) ................................ 7.11
SECTION 316 (a)(last sentence) ................. 2.10
(a)(1)(A) .......................... 7.05
(a)(1)(B) .......................... 7.04
(a)(2) ............................. N.A.
(b) ................................ 7.07
(c) ................................ 10.04
SECTION 317 (a)(1) ............................. 7.08
(a)(2) ............................. 7.09
(b) ................................ 2.05
SECTION 318 (a) ................................ 11.01
- ------------------------
N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to
be a part of this Indenture.
<PAGE>
TABLE OF CONTENTS
Page
----
RECITALS OF THE COMPANY .............................................
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions ....................................
SECTION 1.02. Incorporation by Reference of Trust
Indenture Act ................................
SECTION 1.03. Rules of Construction ..........................
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form of Securities .............................
SECTION 2.02. Title and Terms ................................
SECTION 2.03. Execution and Authentication ...................
SECTION 2.04. Registration and Paying Agent ..................
SECTION 2.05. Paying Agent to Hold Money in Trust ............
SECTION 2.06. Securityholders Lists ..........................
SECTION 2.07. Transfer and Exchange ..........................
SECTION 2.08. Replacement Securities .........................
SECTION 2.09. Outstanding Securities .........................
SECTION 2.10. Treasury Securities ............................
SECTION 2.11. Temporary Securities ...........................
SECTION 2.12. Cancellation ...................................
SECTION 2.13. Defaulted Interest .............................
SECTION 2.14. Persons Deemed Owners ..........................
ARTICLE 3
REDEMPTION
SECTION 3.01. Right of Redemption ............................
SECTION 3.02. Applicability of Article .......................
SECTION 3.03. Election to Redeem; Notice to Trustee ..........
SECTION 3.04. Selection by Trustee of Securities to be
Redeemed .....................................
SECTION 3.05. Notice of Redemption ...........................
SECTION 3.06. Deposit of Redemption Price ....................
SECTION 3.07. Securities Payable on Redemption Date ..........
SECTION 3.08. Securities Redeemed in Part ....................
-i-
<PAGE>
ARTICLE 4
SINKING FUND
Page
----
SECTION 4.01. Sinking Fund Payments ..........................
SECTION 4.02. Satisfaction of Securities for Sinking
Fund .........................................
SECTION 4.03. Redemption of Securities for Sinking Fund ......
ARTICLE 5
COVENANTS
SECTION 5.01. Payment of Securities ..........................
SECTION 5.02. Maintenance of Office or Agency ................
SECTION 5.03. Corporate Existence ............................
SECTION 5.04. Payment of Taxes and Other Claims ..............
SECTION 5.05. Notice of Defaults .............................
SECTION 5.06. Maintenance of Properties ......................
SECTION 5.07. Liquidation ....................................
SECTION 5.08. Compliance Certificate .........................
SECTION 5.09. SEC Reports ....................................
SECTION 5.10. Waiver of Stay, Extension or Usury Laws ........
ARTICLE 6
SUCCESSOR CORPORATION
SECTION 6.01. When Company May Merge, etc. ...................
SECTION 6.02. Successor Corporation Substituted ..............
ARTICLE 7
DEFAULT AND REMEDIES
SECTION 7.01. Events of Default ..............................
SECTION 7.02. Acceleration ...................................
SECTION 7.03. Other Remedies .................................
SECTION 7.04. Waiver of Past Defaults ........................
SECTION 7.05. Control by Majority ............................
SECTION 7.06. Limitation on Suits ............................
SECTION 7.07. Rights of Holders to Receive Payment ...........
SECTION 7.08. Collection Suit by Trustee .....................
SECTION 7.09. Trustee May File Proofs of Claim ...............
SECTION 7.10. Priorities .....................................
SECTION 7.11. Undertaking for Costs ..........................
-ii-
<PAGE>
Page
----
ARTICLE 8
TRUSTEE
SECTION 8.01. Duties of Trustee ..............................
SECTION 8.02. Rights of Trustee ..............................
SECTION 8.03. Individual Rights of Trustee ...................
SECTION 8.04. Trustee's Disclaimer ...........................
SECTION 8.05. Notice of Defaults .............................
SECTION 8.06. Reports by Trustee to Holders ..................
SECTION 8.07. Compensation and Indemnity .....................
SECTION 8.08. Replacement of Trustee .........................
SECTION 8.09. Successor Trustee by Merger, etc. ..............
SECTION 8.10. Eligibility; Disqualification ..................
SECTION 8.11. Preferential Collection of Claims Against
Company ......................................
ARTICLE 9
DISCHARGE OF INDENTURE
SECTION 9.01. Termination of Company's Obligations ...........
SECTION 9.02. Application of Trust Money .....................
SECTION 9.03. Repayment to Company ...........................
SECTION 9.04. Reinstatement ..................................
SECTION 9.05. Indemnity for U.S. Government Obligations .........
ARTICLE 10
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders .....................
SECTION 10.02. With Consent of Holders ........................
SECTION 10.03. Compliance With Trust Indenture Act ............
SECTION 10.04. Revocation and Effect of Consents ..............
SECTION 10.05. Notation On or Exchange of Securities ..........
SECTION 10.06. Trustee to Sign Amendments, etc. ...............
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls ...................
SECTION 11.02. Notices ........................................
SECTION 11.03. Communications by Holders With Other
Holders ......................................
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent ....................................
-iii-
<PAGE>
Page
----
SECTION 11.05. Statements Required in Certificate or
Opinion ......................................
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar ......
SECTION 11.07. Legal Holidays .................................
SECTION 11.08. Governing Law ..................................
SECTION 11.09. No Adverse Interpretation of Other
Agreements ...................................
SECTION 11.10. No Recourse Against Others .....................
SECTION 11.11. Successors .....................................
SECTION 11.12. Duplicate Originals ............................
SECTION 11.13. Separability ...................................
SECTION 11.14. Action of Holders When Securities are
Denominated in Different Currencies ..........
SECTION 11.15. Monies of Different Currencies to be
Segregated ...................................
SECTION 11.16. Payment to be in Proper Currency ...............
SIGNATURES ..........................................................
EXHIBIT A -- Form of Security .......................................
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NOTE: This Table of Contents shall not, for any purpose, be deemed to be a
part of this Indenture.
-iv-
<PAGE>
INDENTURE, dated as of , 199 , between Forest Oil
Corporation, a New York corporation (the "Company"), and
, a national banking association,
as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its
unsecured notes, debentures or other evidences of indebtedness
(collectively, the "Securities"), to be issued from time to time in one or
more series (a "Series") as provided in this Indenture and as shall be
provided, in respect of any Series, in or pursuant to the Authorizing
Resolution hereinafter referred to and/or in the indenture supplemental
hereto (if any) relating to such Series.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"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 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" means any Registrar, Paying Agent or co-Registrar.
"Authorizing Resolution" means a Board Resolution providing for
the issuance of a Series of Securities.
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"Bankruptcy Law" shall have the meaning provided in Section 6.01.
"Board of Directors" means the Board of Directors of the
Company or any duly authorized committee of the 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 (except as
provided in Section 2.03).
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means, with respect to any person, any and all
shares, interests, participations or other equivalents (however designated)
of corporate stock of such person other than Mandatory Redemption Preferred
Stock.
"Capitalized Lease Obligation" means Indebtedness represented
by obligations under a lease that is required to be capitalized for
financial reporting purposes in accordance with generally accepted
accounting principles and the amount of such Indebtedness shall be the
capitalized amount of such obligations determined in accordance with such
principles.
"Company" means the party named as such in this Indenture until
a successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by two Officers
of the Company or by an Officer and the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, and delivered to the Trustee in
respect of the Series to which the Company Request or Company Order shall
relate.
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"Consolidated Subsidiary" means a Subsidiary which for
financial reporting purposes is accounted for by the Company as a
consolidated subsidiary.
"Corporate Trust Office" or other similar term means the
principal office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at the date
hereof is located at ; the
Trustee will notify the Company of any change thereof.
"Custodian" shall have the meaning provided in Section 7.01.
"Default" means any event which is, or after notice or passage
of time would be, an Event of Default.
"Event of Default" shall have the meaning provided in Section 7.01.
"Extendible Securities" means Securities of any Series issued
hereunder the final maturity of which is extendible for a stated period of
time, as shall be provided in, or pursuant to, the Authorizing Resolution
and/or supplemental indenture (if any) relating to such Series.
"Holder" or "Securityholder" means, with respect to any
Security, the person in whose name such Security is registered on the
Security Register.
"Indebtedness" means (i) any liability of any person (a) for
borrowed money, (b) evidenced by a note, debenture or similar instrument
(including a purchase money obligation) given in connection with the
acquisition of any property or assets (other than inventory or similar
property acquired in the ordinary course of business), including
securities, or
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(c) for the payment of money relating to a Capitalized Lease Obligation; (ii)
any guarantee by any person of any liability of others described in the
preceding clause (i); and (iii) any amendment, renewal, extension or
refunding of any liability of the types referred to in clauses (i) and (ii)
above.
"Indenture" means this Indenture as amended or supplemented
from time to time and shall include the forms and terms of particular
Series of Securities established as contemplated hereunder.
"Interest Payment Date" means, for any Series of Securities
issued and outstanding hereunder, the date or dates in each year on which
any interest on such Series is paid or made available for payment.
"Legal Holiday" shall have the meaning provided in Section 11.07.
"Lien" means any mortgage, lien, pledge, charge, or other
security interest or encumbrance of any kind.
"Mandatory Redemption Preferred Stock" means, with respect to
any person, any and all shares of preferred stock of such person now
outstanding or hereafter issued, subject to mandatory redemption
provisions.
"Maturity" when used with respect to any Security means the
date on which the principal of such Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Maturity Date" means the date specified in each Security on
which the principal thereof is due and payable in full.
"Officer" means the Principal Executive Officer, Principal
Financial Officer or Principal Accounting Officer of the Company.
"Officers' Certificate" means a certificate signed by two
Officers or by an Officer and the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee. See Sections 11.04 and 11.05.
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"Opinion of Counsel" means a written opinion from legal counsel
who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company. See Sections 11.04 and 11.05.
"Original Issue Date" means the date on which a Security is
issued to the original purchaser thereof, as specified in such Security.
"Original Issue Discount Securities" means Securities which
provide for an amount less than 100% of the principal amount thereof to be
due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 7.02.
"Paying Agent" shall have the meaning provided in Section 2.04,
except that for the purposes of Article 9 and Section 5.07 the Paying Agent
shall not be the Company or any Subsidiary.
"person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision
thereof.
"principal" of a debt security means the principal of the
security plus, when appropriate, the premium, if any, on the security.
"Redeemable Securities" means Securities of any Series which
may be redeemed, at the option of the Company, prior to the Stated Maturity
thereof, on the terms specified in or pursuant to the Authorizing
Resolution and/or supplemental indenture relating to such Series and in
accordance with Article 3 herein.
"Redemption Date" when used with respect to any Security of any
Series to be redeemed means the date fixed for such redemption by or
pursuant to the provisions of such Security,
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this Indenture and the Authorizing Resolution and/or supplemental indenture
relating to such Security.
"Redemption Price" when used with respect to any Security of
any Series to be redeemed means the price at which it is to be redeemed
pursuant to the provisions of such Security, this Indenture and the
Authorizing Resolution and/or supplemental indenture relating to such
Security.
"Registrar" shall have the meaning provided in Section 2.04.
"Regular Record Date" means, for the interest payable on any
Interest Payment Date in respect of any Series of Securities, except as
provided in, or pursuant to, the Authorizing Resolution and/or supplemental
indenture relating thereto, the day (whether or not a Business Day) that is
fifteen days preceding the applicable Interest Payment Date.
"Required Currency" shall have the meaning provided in Sec-
tion 11.16.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Securities, as amended or supplemented
from time to time pursuant to the terms of this Indenture, of the Company
of any Series that are issued under this Indenture.
"Security Register" shall have the meaning provided in
Section 2.04.
"Series" means, with respect to Securities issued hereunder,
the Securities issued pursuant to any particular Authorizing Resolution
and/or supplemental indenture (if any), subject to the right of the Board
of Directors to specify in such Authorizing Resolution and/or supplemental
indenture (if any) that such Securities shall constitute more than one
Series.
"Short-Term Borrowing" means all Indebtedness in respect of
borrowed money maturing on demand or within one year from the date of the
creation thereof and not directly or indirectly renewable or extendible, at
the option of the debtor, by
<PAGE>
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its terms or by the terms of any instrument or agreement relating thereto, to
a date one year or more from the date of the creation thereof; PROVIDED, that
indebtedness in respect of borrowed money arising under a revolving credit or
similar agreement which obligates the lender or lenders to extend credit over
a period of one year or more shall constitute Funded Debt and not Short-Term
Borrowing even though the same matures on demand or within one year from the
date as of which such Short-Term Borrowing is to be determined.
"Significant Subsidiary" shall have the meaning provided in
Section 7.01.
"Sinking Fund" means, with respect to any Sinking Fund
Securities, a sinking fund provided for in Article 4.
"Sinking Fund Securities" means Securities of any Series which
are required to be redeemed from time to time prior to the Stated Maturity
thereof in whole or in part under a Sinking Fund, on the terms specified in
the Authorizing Resolution and/or supplemental indenture (if any) relating
to such Series and in accordance with Article 4 herein.
"Special Record Date" shall have the meaning provided in Sec-
tion 2.13.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon means the date specified in such Security
as the fixed date on which the principal of such Security or such
installment of interest is due and payable.
"Subsidiary" means (i) a corporation a majority of whose capital
stock with voting power, under ordinary circumstances, to elect directors is
at the time, directly or indirectly, owned by the Company, by the Company and
a Subsidiary (or Subsidiaries) of the Company or by a Subsidiary (or
Subsidiaries) of the Company or (ii) any other person (other than a
corporation) in which the Company, a Subsidiary (or Subsidiaries) of the
Company or the Company and a Subsidiary (or Subsidiaries) of the Company,
directly or indirectly, at the date of determination thereof has at least
majority ownership interest; PROVIDED, that no corporation shall be deemed a
Subsidiary until the Company, a Subsidiary (or Subsidiaries) of the Company
or the Company and a Subsidiary (or Subsidiaries) of the Company acquires
more than 50% of the outstanding voting stock thereof and has elected a
majority of its board of directors.
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"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date of this Indenture except as
provided in Section 10.03.
"Trustee" means the party named as such in this Indenture until
a successor replaces it in accordance with the provisions of this Indenture
and thereafter means and includes the person or 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 Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters.
"U.S. Government Obligations" shall have the meaning provided
in Section 9.01.
"Yield to Maturity" means, with respect to any Series of
Securities, the yield to maturity thereof, calculated at the time of
issuance thereof, or, if applicable, at the most recent redetermination of
interest thereon, and calculated in accordance with accepted financial
practice.
SECTION 1.02. INCORPORATION BY REFERENCE
OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
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All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule
and not otherwise defined herein have the meanings assigned to them
therein.
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles in effect on the date hereof, and any other reference in
this Indenture to "generally accepted accounting principles" refers
to generally accepted accounting principles on the date hereof;
(3) "or" is not exclusive;
(4) word in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
and
(6) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article,
Section or other Subdivision.
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM OF SECURITIES.
The Securities of each Series and the certificate of
authentication thereon shall be in substantially the forms set forth in
Exhibit A or in such other forms as shall be specified in, or pursuant to,
the Authorizing Resolution and/or in the indenture supplemental hereto (if
any) relating to such Series, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or the said Authorizing Resolution and/or supplemental indenture
(if any).
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The definitive Securities of each Series shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by
the rules of any securities exchange on which the Securities may be listed,
or, if they shall not be listed on any securities exchange, in any other
manner consistent herewith, all as shall be determined by the officers
executing such Securities, as evidenced by their execution of such
Securities. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage. The Company shall approve the
form of the Securities and any notation, legend or endorsement on them.
The terms and provisions contained in the Securities, annexed
hereto as Exhibit A or such other forms as specified in the Authorizing
Resolution and/or supplemental indenture (if any) relating thereto, shall
constitute, and are hereby expressly made, a part of this Indenture.
SECTION 2.02. TITLE AND TERMS.
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. The terms of
each Series shall be as provided in an Authorizing Resolution and/or
supplemental indenture (if any) or shall be determined in the manner
specified therein. The terms to be specified in respect of each Series in
the Authorizing Resolution and/or supplemental indenture (if any), or by such
person and/or procedures as shall be provided therein, shall include the
following:
(1) the title of the Securities of such Series, which shall
distinguish such Series from all other Series;
(2) the aggregate principal amount of the Securities of such
Series which may be authenticated and delivered under this Indenture
(except for Securities of such Series authenticated and delivered
upon transfer of, or in exchange for, or in lieu of, other Securities
pursuant to Section 2.07, 2.08, 2.11, 3.08 or 10.05);
(3) the date or dates on which the principal of the Securities
of such Series is payable, and, if the Series shall be Extendible
Securities, the terms on which the
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Company or any other person shall have the option to extend the Maturity
of such Securities and the rights, if any, of the Holders to require
payment of the Securities;
(4) the rate or rates at which the Securities of such Series
shall bear interest, if any (whether floating or fixed), the
provisions, if any, for determining such interest rate or rates and
adjustments thereto, the date or dates from which such interest shall
accrue, the Interest Payment Dates therefor and the Regular Record
Dates (if different from those provided in the form of Security herein
set forth) for the determination of Holders of the Securities of such
Series to whom interest is payable;
(5) the place or places where the principal of and interest on
securities of such Series shall be payable (if other than as provided
in Section 5.02);
(6) the price or prices at which, the period or periods within
which and the terms and conditions upon which the Securities of such
Series may be redeemed, in whole or in part, at the option of the
Company, pursuant to a Sinking Fund or otherwise;
(7) the obligation, if any, of the Company to redeem, purchase
or repay Securities of such Series, in whole or in part, pursuant to
a Sinking Fund or otherwise or at the option of a Holder thereof, and
the price or prices at which, the period or periods within which and
the terms and conditions upon which such redemption, purchase or
repayment shall be made;
(8) any Events of Default with respect to the Securities of
such Series which may be different from or in addition to those
provided for herein, and any covenants or obligations of the Company
to the Holders of the Securities of such Series different from or in
addition to those set forth herein;
(9) if less than 100% of the principal amount of the
Securities of such Series is payable on acceleration under
Section 7.02 or in bankruptcy under Section 7.09 at any time, a
schedule of or the manner of computing the amounts which are so
payable from time to time;
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(10) the form of the Securities of such Series (which may be,
but which need not be, consistent with the form set forth in
Exhibit A attached hereto);
(11) if other than United States dollars, the currency(ies) in
which payment of the principal of or interest, if any, on the
Securities of that Series shall be payable;
(12) if the principal of or interest, if any, on the
Securities of that Series is to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies other than
that in which the Securities are stated to be payable, the period or
periods within which, and the terms and conditions upon which, such
election may be made;
(13) if the amount of payments of principal of or interest, if
any, on the Securities of the Series may be determined with reference
to an index based on a currency or currencies other than that in which
the Securities are stated to be payable, the manner in which such amounts
shall be determined; and
(14) any other terms of the Securities of such Series;
PROVIDED, that such other terms shall not be inconsistent with any
express terms of this Indenture or in conflict with any express terms
of any other Series of Securities which shall be issued and
outstanding.
All Securities of any one Series shall be substantially identical
in form except as to denomination and except as may be otherwise provided in
and pursuant to the Authorizing Resolutions and/or supplemental indenture (if
any) relating thereto.
SECTION 2.03. EXECUTION AND AUTHENTICATION.
Two Officers or an Officer and the Secretary of the Company shall
sign the Securities for the Company by manual or facsimile signature. The
Company's seal shall be reproduced on the Securities and may be in facsimile
form.
If an Officer or a Secretary whose signature is on a Security no
longer holds that office at the time the Trustee authenticates the Security,
the Security shall be valid nevertheless.
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A Security shall not be valid until the Trustee manually signs
the certificate of authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
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, together with a Company Order for the
authentication and delivery of such Securities. The Company Order may
provide that the Securities which are the subject thereof shall be
authenticated and delivered by the Trustee upon the telephonic, written or
other order of persons designated in the Company Order, and that such persons
are authorized to specify the terms and conditions of such Securities, to the
extent permitted by the Authorizing Resolution and/or supplemental indenture
(if any) relating thereto. The Trustee shall execute and deliver the
supplemental indenture (if any) relating to said Securities and the Trustee
shall authenticate and deliver said Securities as specified in such Company
Order; PROVIDED that, prior to authentication and delivery of the first
Securities of any Series, the Trustee shall have received:
(1) a copy of the Authorizing Resolution, with a copy of the
form of Security approved thereby attached
thereto, or a supplemental indenture in respect of the issuance of
the Series, executed on behalf of the Company;
(2) an Officers' Certificate to the effect that the Securities
of such Series comply or will comply with the requirements of this
Indenture and the said Authorizing Resolution and/or supplemental
indenture (if any);
(3) an Opinion of Counsel (a) to the effect that (i) the
Securities of such Series, the Authorizing Resolution and/or the
supplemental indenture (if any) relating thereto comply or will
comply with the requirements of this Indenture, and (ii) the
Securities of such Series, when authenticated and delivered by the
Trustee in accordance with the said Company Order, will constitute
valid and binding obligations of the Company enforceable in
accordance with their terms, subject to (A) bankruptcy and other laws
affecting creditors' rights generally as in effect from time to time,
(B) limitations of generally applicable equitable principles and
(C) other exceptions acceptable to the Trustee and its counsel; and
(b)
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relating to such other matters as may reasonably be requested by the
Trustee or its counsel; and
(4) if the Securities to be issued are Original Issue Discount
Securities, an Officers' Certificate setting forth the Yield to
Maturity for the Securities or other information sufficient to
compute amounts due on acceleration, or specifying the manner in
which such amounts are to be determined, provided that such Yield to
Maturity and other facts are not specified in the form of the
Securities.
Subject to Section 8.01 hereof, the Trustee shall be fully
protected in relying upon the documents delivered to it as provided above in
connection with the issuance of any Series of Securities.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section 2.03 if the Trustee, being advised
by counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith by a committee of its Trust Officers shall determine
that such action would expose the Trustee to liability to Holders of
previously issued and outstanding Securities.
Each Security shall be dated the date of its authentication
unless otherwise specified in the Authorizing Resolution and/or supplemental
indenture relating thereto.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities. An authenticating
agent may authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating Agent has the same rights as
an Agent to deal with the Company or an Affiliate of the Company.
The Securities of each Series shall be issuable only in
registered form without coupons and only in denominations of $1,000 and any
integral multiple thereof, or in such other currencies or denominations as
may be specified in, or pursuant to, the Authorizing Resolution and/or
supplemental indenture (if any) relating to the Series.
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SECTION 2.04. REGISTRAR AND PAYING AGENT.
The Company shall cause to be kept a register (the "Security
Register") at an office or agency where Securities may be presented for
registration of transfer or for exchange ("Registrar") and an office or
agency where Securities may be presented for payment ("Paying Agent"). The
Company may have one or more co-Registrars and one or more additional paying
agents. The term "Paying Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall
give prompt written notice to the Trustee of the name and address of any such
Agent and the Trustee shall have the right to inspect the Security Register
at all reasonable times and to obtain copies thereof. If the Registrar shall
not be the Trustee in respect of any Series, the Company shall promptly
notify the Registrar as to the amounts and terms of each Security of such
Series which shall be authenticated and delivered hereunder, and as to the
names in which such Securities shall be registered. If the Company fails to
maintain a Registrar or Paying Agent, the Trustee shall act as such and shall
be entitled to appropriate compensation therefor pursuant to Section 8.07.
The Company initially appoints the Trustee as Registrar and
Paying Agent.
SECTION 2.05. PAYING AGENT TO HOLD MONEY
IN TRUST.
Each Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Securities (whether such money has
been paid to it by the Company or any other obligor on the Securities), and
shall notify the Trustee of any default by the Company (or any other obligor
on the Securities) in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate the money and hold it as
a separate trust fund. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee and account for any funds disbursed
and the Trustee may at any time during the continuance of any payment
default, upon written request to a Paying Agent, require such Paying Agent to
pay all money held by it to the Trustee and to account for any
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funds disbursed. Upon doing so the Paying Agent shall have no further
liability for the money.
SECTION 2.06. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list furnished to it of the names and addresses
of Securityholders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee ten days before each Interest Payment Date and at such
other times as the Trustee may request in writing a list in such form and as
of such date as the Trustee may reasonably require of the names and addresses
of Holders of Securities of any Series and the Company shall otherwise comply
with Section 312(a) of the TIA.
The Trustee shall be entitled to rely upon a certificate of the
Registrar, the Company or such other Paying Agent, as the case may be, as to
the names and addresses of the Holders of Securities of any Series and the
principal amounts and serial numbers of such Securities.
SECTION 2.07. TRANSFER AND EXCHANGE.
When Securities are presented to the Registrar or a co-Registrar
with a request to register the transfer or to exchange them for an equal
principal amount of Securities of the same Series and Stated Maturity of
other authorized denominations, the Registrar shall register the transfer or
make the exchange as requested if its requirements for such transactions are
met. To permit registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Securities at the Registrar's
request. No service charge shall be made to any Holder for any registration
of transfer or exchange, but the Company or the Trustee may require payment
of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchanges pursuant to Section 2.11,
3.08 or 10.05 in which case such transfer taxes or similar governmental
charges shall be paid by the Company).
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security of any Series during a period beginning
at the opening of the day which is 15 Business Days before the day of the
mailing of a notice of redemption of Securities of such Series selected for
redemption
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under Section 3.04 or 4.01 and ending at the close of business on the day of
such mailing, or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except, in the case of any
Security to be redeemed in part, the portion thereof not to be redeemed.
SECTION 2.08. REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate
a replacement Security of like tenor, Series and principal amount, bearing a
number not assigned to any Security of the same Series then outstanding, if
the Trustee's requirements are met. If required by the Trustee or the
Company, an indemnity bond must be sufficient in the judgment of the Trustee
to protect the Company, the Trustee or any Agent from any loss which any of
them may suffer if a Security is replaced. The Company may charge such
Holder for its expenses in replacing a Security.
Every replacement Security is an additional obligations of the
Company.
SECTION 2.09. OUTSTANDING SECURITIES.
Securities, or Securities of any particular Series, outstanding
at any time are all such Securities that have been authenticated and
delivered by the Trustee except for those cancelled by it, those delivered to
it for cancellation and those described in this Section as not outstanding.
A Security does not cease to be outstanding because the Company or one of its
Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.08, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Trustee or Paying Agent (other than the Company or a
Subsidiary) holds on the Maturity Date or Redemption Date money sufficient to
pay Securities payable on such date, then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue;
PROVIDED that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provisions
therefor satisfactory to the Trustee have been made.
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SECTION 2.10. TREASURY SECURITIES.
In determining whether the Holders of the required principal
amount of Securities of any Series have concurred in any direction, waiver or
consent (a) the principal amount of an Original Issue Discount Security, if
any, of such Series that shall be deemed to be outstanding for such purposes
shall be the amount that would be due and payable as of the date of
determination upon a declaration of acceleration thereof pursuant to Section
7.02 and (b) Securities of such Series owned by the Company or an Affiliate
of the Company shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities of such Series which the
Trustee actually knows are so owned shall be so disregarded. Upon the
request of the Trustee, the Company shall furnish to the Trustee an Officers'
Certificate identifying all Securities of such Series, if any, known by the
Company to be owned by it or any of its Affiliates.
SECTION 2.11. TEMPORARY SECURITIES.
Until definitive Securities of any Series are ready for delivery,
the Company may prepare and execute and, upon compliance with the
requirements of Section 2.03, the Trustee shall authenticate temporary
Securities of such Series. Temporary Securities of any Series shall be
substantially in the form of definitive Securities of such Series but may
have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Securities for such Series in exchange
for temporary Securities of such Series in an exchange pursuant to Section
2.07.
SECTION 2.12. CANCELLATION.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or payment.
The Trustee and no one else shall cancel all Securities surrendered for
transfer, exchange, payment or cancellation or for credit against any Sinking
Fund Payment in respect of such Series pursuant to Section 4.02. The Company
may not issue new Securities to replace Securities it has paid or delivered
to the Trustee for cancellation.
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SECTION 2.13. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the
Securities of any Series, it shall pay the defaulted interest, plus any
interest payable on the defaulted interest, to the persons who are Holders
of such Securities on a subsequent special record date ("Special Record
Date") and such term, as used in this Section 2.13 with respect to the
payment of any defaulted interest, shall mean the fifteenth day next
preceding the date fixed by the Company for the payment of defaulted
interest, whether or not such day is a Business Day. At least 15 days
before the Special Record Date, the Company shall mail to each holder of
such Securities a notice that states the Special Record Date, the payment
date and the amount of defaulted interest to be paid.
SECTION 2.14. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent may treat the persons in
whose name any Security is registered as the owners of such Security for
the purpose of receiving payment of principal of and (subject to Section
2.13) interest on such Security and for all other purposes whatsoever,
whether or not such Security shall have matured, and neither the Company,
the Trustee nor any Agent shall be affected by any notice to the contrary.
ARTICLE 3
REDEMPTION
SECTION 3.01. RIGHT OF REDEMPTION.
Redeemable Securities may be redeemed otherwise than through
the operation of the Sinking Fund provided for in Article 4 at the election
of the Company at the times, on the conditions and at the Redemption Prices
specified therein, in (or pursuant to) the Authorizing Resolution relating
thereto or in the supplemental indenture (if any) executed in connection
with the issuance of such Securities to the extent provided therein, any
Redemption Price to be accompanied by accrued interest to the Redemption
Date.
SECTION 3.02. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision
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referred to in Section 3.01, shall be made in accordance with such provision
and this Article.
SECTION 3.03. ELECTION TO REDEEM; NOTICE TO
TRUSTEE.
The Election of the Company to redeem any Securities of any
Series shall be evidenced by a Board Resolution or set forth in an
Officers' Certificate which states that such election has been duly
authorized by all requisite corporate action on the part of the Company.
In case of any redemption at the election of the Company of less than all
of the Securities of such Series the Company shall, at least 60 days prior
to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee of such Redemption Date
and of the principal amount of Securities of the Series or the several
Series, as the case may be, to be redeemed. In the case of any redemption
of Securities prior to the expiration of any restriction on such redemption
provided in the Securities or elsewhere in this Indenture, the Company
shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 3.04. SELECTION BY TRUSTEE OF SECURITIES
TO BE REDEEMED.
If less than all the Securities of any Series are to be redeemed,
the particular Securities of such Series to be redeemed shall be selected not
more than 90 days prior to the Redemption Date by the Trustee, from the
outstanding Securities of such Series not previously called for redemption,
in compliance with the requirements of the principal national securities
exchange, if any, on which such Securities are listed or, if the Securities
are not listed on a national securities exchange, on a PRO RATA basis or by
lot, as the Trustee deems appropriate in its sole discretion. The Trustee may
select for redemption portions (equal to the minimum authorized denomination
of the Series or any integral multiple thereof) of the principal amount of
such Securities of a denomination larger than such minimum denomination. If
the Company shall so specify, Securities held by the Company or any of its
Subsidiaries or Affiliates shall not be included in the Securities selected
for redemption.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the
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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 Security which has been
or is to be redeemed.
SECTION 3.05. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all outstanding Securities of the Series are
to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) 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, and that interest
thereon shall cease to accrue on and after said date;
(5) that the redemption is for a Sinking Fund, if such is the
case; and
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
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 of and at the expense of the Company.
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SECTION 3.06. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 2.05) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) any accrued interest on,
all the Securities or portions thereof which are to be redeemed on that date.
SECTION 3.07. 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 thereof and from and after such date (unless
the Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of
any such Security for redemption in accordance with said notice such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; PROVIDED, HOWEVER, that installments of
interest whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities registered as such on the relevant
Regular or Special Record Date according to their terms and the provisions of
such Security and Section 2.13.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the Redemption Date at the rate borne by the
Security or, in the case of Original Issue Discount Securities, at a rate
equal to the Yield to Maturity thereof.
SECTION 3.08. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be
surrendered at the office or agency of the Company maintained for that
purpose pursuant to Section 5.02 (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
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or Securities of the same Series, 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.
ARTICLE 4
SINKING FUND
SECTION 4.01. SINKING FUND PAYMENTS.
As and for a Sinking Fund for the retirement of Sinking Fund
Securities, the Company will, until all such Securities are paid or payment
thereof is duly provided for, deposit in accordance with Section 3.06, at
such times and subject to such terms and conditions as shall be specified in
the provisions of such Securities and the Authorizing Resolution and/or
supplemental indenture (if any) relating thereto, such amounts in cash or
such other Required Currency as shall be required or permitted under such
provisions in order to redeem Securities on the specified Redemption Dates at
a Redemption Price equal to their principal amounts, less in each such case
the amount of any credit against such payment received by the Company under
Section 4.02. Each such Sinking Fund payment shall be applied to the
redemption of Securities on the specified Redemption Date as herein provided.
SECTION 4.02. SATISFACTION OF SINKING FUND
PAYMENTS WITH SECURITIES.
The Company (1) may deliver Securities of the same Series (other
than any Securities of such Series previously called for redemption pursuant
to the Sinking Fund or theretofore applied as a credit against a Sinking Fund
payment) and (2) may apply as a credit Securities of the same Series redeemed
at the election of the Company pursuant to Section 3.01 or through the
operation of the Sinking Fund in any period in excess of the minimum amount
required for such period under Section 4.01 and not theretofore applied as a
credit against a Sinking Fund payment, in each case in satisfaction of all or
any part of any Sinking Fund payment required to be made pursuant to Section
4.01. Each such Security so delivered or applied shall be credited for such
purpose by the Trustee at a Redemption Price equal to its principal amount
or, in the case of an Original Issue Discount Security, its then accreted
value, and the required amount of such Sinking Fund payment in respect of
such Series shall be reduced accordingly.
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SECTION 4.03. REDEMPTION OF SECURITIES FOR
SINKING FUND.
If in any year the Company shall elect to redeem in excess of the
minimum principal amount of Securities of any Series required to be redeemed
pursuant to Section 4.01 or to satisfy all or any part of any Sinking Fund
payment by delivering or crediting Securities of the same Series pursuant to
Section 4.02, then at least 45 days prior to the date on which the Sinking
Fund payment in question shall be due, the Company shall deliver to the
Trustee an Officers' Certificate specifying the amount of the Sinking Fund
payment and the portions thereof which are to be satisfied by payment of cash
or such other Required Currency, by delivery of Securities of such Series or
by crediting Securities of such Series, and, at least 45 days prior to the
Sinking Fund payment date (or such shorter period as shall be approved by the
Trustee), will also deliver to the Trustee the Securities of such Series to
be so delivered. Such Officers' Certificate shall also state that the
Securities forming the basis of any such credit do not include any Securities
which have been redeemed through the operation of the Sinking Fund in the
minimum amount required under Section 4.01 or previously credited against any
Sinking Fund payment. The Trustee shall, upon the receipt of such Officers'
Certificate (or, if it shall not have received such an Officers' Certificate
at least 45 days prior to the Sinking Fund payment date, then following such
45th day), select the Securities of such Series to be redeemed upon the next
Sinking Fund payment date, in the manner specified in Section 3.04, and cause
notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 3.05. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 3.06, 3.07 and 3.08.
ARTICLE 5
COVENANTS
SECTION 5.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the
Securities of each Series on the dates and in the manner provided in the
Securities and in this Indenture. An installment of principal or interest
shall be considered paid on the date due if the Trustee or Paying Agent
(other than the Company
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or a Subsidiary) holds on that date money designated for and sufficient to
pay the installment.
The Company shall pay interest on overdue principal at the
respective rates borne by such Securities or, in the case of Original Issue
Discount Securities, at rates equal to the respective Yields to Maturity
thereof; it shall pay interest on overdue installments of interest at the
respective rates borne by such Securities to the extent lawful.
SECTION 5.02. MAINTENANCE OF OFFICE OR AGENCY.
Except as otherwise provided in the Authorizing Resolutions
and/or supplemental indenture (if any) relating to any Series, the Company
will maintain in The City of New York, an office or agency where Securities
may be surrendered for registration of transfer or exchange or for
presentation for payment and where notices and demands to or upon the Company
in respect to the Securities 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.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of any Series or a particular
Series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; PROVIDED, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York, 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.
The Company hereby initially designated the Trustee in The City
of New York, as an agency of the Company in accordance with Section 2.04.
SECTION 5.03. CORPORATE EXISTENCE.
Subject to Article 6 and Section 5.07, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and
<PAGE>
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the corporate, partnership or other existence of each material Subsidiary in
accordance with the respective organizational documents of each such
Subsidiary and the rights (charter and statutory) and material franchises of
the Company and its material Subsidiaries; PROVIDED, HOWEVER, that the
Company shall not be required to preserve any such right or franchise, or the
corporate existence of any material Subsidiary, if the Board of Directors or
management of the Company or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries, taken as a whole, and if the loss thereof
is not, and will not be, adverse in any material respect to the Holders.
SECTION 5.04. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all material taxes,
assessments and governmental charges levied or imposed upon the Company or
any Subsidiary or upon the income, profits or property of the Company or any
Subsidiary and (2) all lawful claims for labor, materials and supplies which,
if unpaid, might by law become a material Lien upon the property of the
Company or any Subsidiary; PROVIDED, HOWEVER, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith by appropriate proceedings and for which appropriate
provision has been made.
SECTION 5.05. NOTICE OF DEFAULTS.
In the event that any Indebtedness of the Company or any of its
Subsidiaries is declared due and payable before its maturity because of the
occurrence of any default (or any event which, with notice or the lapse of
time, or both, shall constitute such default) under such Indebtedness, the
Company will promptly give written notice to the Trustee of such declaration.
SECTION 5.06. MAINTENANCE OF PROPERTIES.
Subject to Section 5.07, the Company will cause all material
properties owned by or leased to it or any Subsidiary and used or useful in
the conduct of its business or the business of any Subsidiary to be
maintained and kept in normal condition, repair and working order and
supplied with all necessary equipment and will cause to be made all necessary
repairs,
<PAGE>
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renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary, so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times; PROVIDED, HOWEVER, that nothing in this Section shall prevent the
Company or any Subsidiary from discontinuing the use, operation or
maintenance of any of such properties, or disposing of any of them, if such
discontinuance or disposal is, in the judgment of the Board of Directors or
of the board of directors, board of trustees or managing partners of the
Subsidiary concerned, or of an officer (or other agent employed by the
Company or of any of its Subsidiaries) of the Company or such Subsidiary
having managerial responsibility for any such property, desirable in the
conduct of the business of the Company or any Subsidiary, and if such
discontinuance or disposal is not advantageous in any material respect to the
Holders.
SECTION 5.07. LIQUIDATION.
The Board of Directors or the stockholders of the Company may not
adopt a plan of liquidation which provides for, contemplates or the
effectuation of which is preceded by (i) the sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company
otherwise than substantially as an entirety (Article 6 of this Indenture
being the Article which governs any such sale, lease, conveyance or other
disposition substantially as an entirety) and (ii) the distribution of all or
substantially all of the proceeds of such sale, lease, conveyance or other
disposition and of the remaining assets of the Company to the holders of
Capital Stock of the Company, unless the Company shall in connection with the
adoption of such plan make provisions for, or agree that prior to making any
liquidating distributions it will make provisions for, the satisfaction of
the Company's obligations hereunder and under the Securities of each Series
as to the payment of principal and interest. The Company shall be deemed to
make provision for such payments only if (a) the Company delivers in trust to
the Trustee or Paying Agent (other than the Company or a Subsidiary) (i) in
the case of any Securities of any Series denominated in United States
dollars, an amount of cash sufficient to pay principal of and interest on
such outstanding securities at their respective Stated Maturities or U.S.
Government Obligations in an aggregate principal amount equal to the unpaid
principal amount of such Securities and having maturities and interest
payment dates that shall coincide, as nearly as may be practicable, with the
dates that the principal of and interest on such Securities are due and (ii)
in the case
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of any Securities of any Series denominated in any currency other than United
States dollars, an amount of the Required Currency sufficient to pay
principal of and interest on such outstanding Securities at their respective
Stated Maturities or (b) there is an express assumption of the due and
punctual payment of the Company's obligations hereunder and under the
Securities of each Series and the performance and observance of all covenants
and conditions to be performed by the Company hereunder, by the execution and
delivery of a supplemental indenture in form satisfactory to the Trustee by a
person which acquires or will acquire (otherwise than pursuant to a lease) a
portion of the assets of the Company, and which person will have assets
(immediately after the acquisition) and aggregate net earnings (for such
person's four full fiscal quarters immediately preceding the acquisition)
equal to not less than the assets of the Company (immediately preceding the
acquisition) and the aggregate net earnings of the Company (for its four full
fiscal quarters immediately preceding such acquisition), respectively, and
which is organized and existing under the laws of the United States, any
State thereof or the District of Columbia; PROVIDED, HOWEVER, that the
Company shall not make any liquidating distribution until after the Company
shall have certified to the Trustee with an Officers' Certificate and an
Opinion of Counsel at least five days prior to the making of any liquidating
distribution that it has complied with the provisions of this Section 5.07.
SECTION 5.08. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee within 90 days after the
end of each fiscal quarter of the Company an Officers' Certificate stating
whether or not the signers know of any Default or Event of Default by the
Company that occurred during such fiscal quarter and whether all of the
conditions and covenants of the Company have been complied with regardless of
any period of grace or requirement of notice provided under the Indenture.
If they do know of such a Default or Event of Default, the certificate shall
describe the Default or Event of Default, as the case may be, and its status.
The first Officers' Certificate to be delivered pursuant to this Section
5.08 shall be for the fiscal quarter ending immediately after the Original
Issue Date.
SECTION 5.09. SEC REPORTS
(a) The Company shall file with the Trustee within 15 days
after it files them with the SEC copies of the annual
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reports and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended. The
Company also shall comply with the other provisions of TIA Section 314(a).
(b) So long as the Securities of any Series remain outstanding,
the Company shall cause its annual report to stockholders and any quarterly
or other financial reports furnished by it to stockholders to be mailed to
the Holders of Securities outstanding at the their addresses appearing in the
Security Register.
SECTION 5.10. WAIVER OF STAY, EXTENSION
OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law, which would prohibit or forgive the Company from
paying all or any portion of the principal of and/or interest on the
Securities of any Series as contemplated herein, whenever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture, and (to the extent that it may lawfully do so)
the Company hereby expressly waives all benefit or advantage of any such law,
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee but will suffer and permit the execution
of every such power as though no law had been enacted.
<PAGE>
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ARTICLE 6
SUCCESSOR CORPORATION
SECTION 6.01. WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate with or merge with or into
any other corporation or transfer all or substantially all of its
properties and assets as an entirety to any person, unless:
(1) either the Company shall be the continuing person, or the
person (if other than the Company) formed by such consolidation or
into which the Company is merged or to which all or substantially all
of the properties and assets of the Company as an entirety are
transferred shall be a corporation organized and existing under the
laws of the United States or any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, all the obligations of the Company under the
Securities of each Series and this Indenture;
(2) immediately before and immediately after giving effect to
such transaction, no Event of Default and no Default shall have
occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger or transfer and such supplemental indenture
comply with this Article and that all conditions precedent herein
provided for relating to such transactions have been complied with.
Notwithstanding the foregoing, any Subsidiary may consolidate
with, merge into or transfer all or part of its properties and assets to
the Company or any other Subsidiary or Subsidiaries.
SECTION 6.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any transfer of all or
substantially all of the properties and assets of the Company in accordance
with Section 6.01, the successor corporation formed by such consolidation
or into which the Company is merged or to which such transfer is made shall
succeed to, and
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be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein.
ARTICLE 7
DEFAULT AND REMEDIES
SECTION 7.01. EVENTS OF DEFAULT.
An "Event of Default" occurs if, with respect to any Series of
Securities, unless it is either inapplicable to a particular Series or it
is specifically deleted or modified in the Authorizing Resolution and/or
supplemental indenture (if any) in respect of the Series, and upon any
other events which may be specified as Events of Default in the Authorizing
Resolution and/or supplemental indenture (if any) in respect of such
Series:
(1) the Company defaults in the payment of interest on any
Securities of such Series when the same becomes due and payable and
the default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of
any Securities of such Series when the same becomes due and payable
at its Maturity or otherwise or defaults in the deposit of any
Sinking Fund installment in respect of such Series, when and as
payable by the terms of Section 4.01 hereof;
(3) the Company fails to comply with any of its other
agreements contained in the Securities of such Series or this
Indenture (other than an agreement relating exclusively to another
Series of Securities) and the default continues for the period and
after the notice specified below;
(4) there shall be a default under any bond, debenture, note
or other evidence of indebtedness for money borrowed or under any
mortgage, indenture or other instrument under which there may be
issued or by which there may be secured or evidenced any indebtedness
for money borrowed by the Company or any Significant Subsidiary or by
any Subsidiaries which in the aggregate would constitute a
Significant Subsidiary or under any guarantee of payment
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by the Company or any Significant Subsidiary or by any Subsidiaries which
in the aggregate would constitute a Significant Subsidiary of
indebtedness for money borrowed, whether such indebtedness or
guarantee now exists or shall hereafter be created, and the effect of
such default is to cause such indebtedness to become due prior to its
stated maturity; PROVIDED, HOWEVER, that no default under this clause
(4) shall exist if all such defaults do not relate to such
indebtedness or such guarantees with an aggregate principal amount in
excess of $ at the time outstanding;
(5) the Company or any Significant Subsidiary or any
Subsidiaries which in the aggregate would constitute a Significant
Subsidiary pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against
it in an involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors;
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Subsidiary in an involuntary case or proceeding,
(B) appoints a Custodian of the Company or any
Significant Subsidiary or for all or substantially all of its
properties, or
(C) orders the liquidation of the Company or any
Significant Subsidiary,
and in each case the order or decree remains unstayed and in effect
for 60 days; or
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(7) final judgments for the payment of money which in the
aggregate exceed $ at the time outstanding shall be rendered
against the Company or any Significant Subsidiary by a court of
competent jurisdiction and shall remain undischarged for a period
(during which execution shall not be effectively stayed) of 60 days
after such judgment becomes final and nonappealable.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, sequestrator
or similar official under any Bankruptcy Law.
For the purposes of this Section 7.01, the term "Significant
Subsidiary" means a Subsidiary, including its Subsidiaries, which meets any
of the following conditions:
(a) the Company's and its other Subsidiaries' investments in
and advances to the Subsidiary exceed 10 percent of the total assets
of the Company and its Subsidiaries consolidated as of the end of any
two of the three most recently completed fiscal years; or
(b) the Company's and its other Subsidiaries' proportionate
share of the total assets of the Subsidiary exceeds 10 percent of the
total assets of the Company and its Subsidiaries consolidated as of
the end of any two of the three most recently completed fiscal years;
or
(c) the Company's and its other Subsidiaries' equity in the
income from continuing operations before income taxes, extraordinary
items and cumulative effect of a change in accounting principles of
the Subsidiary exceeds 10 percent of such income of the Company and
its Subsidiaries consolidated as of the end of any two of the three
most recently completed fiscal years.
A Default under clause (3) is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in principal
amount of the outstanding Securities of such Series notify the Company and
the Trustee, of the Default and the Company does not cure the Default
within 30 days after receipt of the notice. The notice must specify the
Default, demand that it be remedied and state that the notice is a "Notice
of Default." When a Default is cured, it ceases. Such notice shall be
given by the Trustee if so requested by the
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Holders of at least 25% in principal amount of the Securities of such Series
then outstanding.
Subject to the provisions of Sections 8.01 and 8.02, the
Trustee shall not be charged with knowledge of any Event of Default unless
written notice thereof shall have been given to a Trust Officer at the
corporate trust office of the Trustee by the Company, the Paying Agent, any
Holder or an agent of any Holder.
SECTION 7.02. ACCELERATION.
If an Event of Default (other than an Event of Default specified
in Section 7.01(5) or (6)) with respect to Securities of any Series occurs
and is continuing, the Trustee may, by notice to the Company, or the Holders
of at least 25% in principal amount of such Securities of such Series then
outstanding may, by notice to the Company and the Trustee, and the Trustee
shall, upon the request of such Holders, declare all unpaid principal (or, if
such Securities are Original Issue Discount Securities, such portion of the
principal amount as may then be payable on acceleration as provided in the
terms thereof) and accrued interest to the date of acceleration on all such
Securities of such Series then outstanding (if not then due and payable) to
be due and payable and, upon any such declaration, the same shall become and
be immediately due and payable. If an Event of Default specified in Section
7.01(5) or (6) occurs, all unpaid principal (or, if any Securities are
Original Issue Discount Securities, such portion of the principal amount as
may then be payable on acceleration as provided in the terms thereof) and
accrued interest on all Securities of every Series then outstanding shall
IPSO FACTO become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Securityholder. Upon payment
of such principal amount and interest, all of the Company's obligations under
such Securities of such Series and this Indenture with respect to such
Securities of such Series, other than obligations under Section 8.07, shall
terminate. The Holders of a majority in principal amount of the Securities
of such Series then outstanding by notice to the Trustee may rescind an
acceleration and its consequences if (i) all existing Events of Default,
other than the non-payment of the principal of the Securities of such Series
which has become due solely by such declaration of acceleration, have been
cured or waived, (ii) to the extent the payment of such interest is lawful,
interest on overdue installments of interest and overdue principal, which has
become due otherwise than by such
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declaration of acceleration, has been paid, (iii) the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction and
(iv) all payments due to the Trustee and any predecessor Trustee under
Section 8.07 have been made. Anything herein contained to the contrary
notwithstanding, in the event of any acceleration pursuant to this Section
7.02, the Company shall not be obligated to pay any premium in connection
with any repayment arising from an Event of Default.
SECTION 7.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to
collect the payment of principal of or interest on the Securities of the
Series as to which the Event of Default shall have occurred or to enforce
the performance of any provision of such Securities or the Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Securities of the Series as to which the Event of
Default shall have occurred or does not produce any of them in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of or acquiescence in the
Event of Default. No remedy is exclusive of any other remedy. All
available remedies are cumulative to the extent permitted by law.
SECTION 7.04. WAIVER OF PAST DEFAULTS.
Subject to Sections 7.07 and 10.02, the Holders of a majority
in principal amount of the outstanding Securities of a Series by written
notice to the Trustee may waive an existing Default or Event of Default and
its consequences, except a Default in the payment of principal of or
interest on any such Security as specified in clauses (1) and (2) of
Section 7.01. When a Default or Event of Default is waived, it is cured
and ceases.
SECTION 7.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the
outstanding Securities of a Series (or, if more than one Series is
affected, of all such Series voting as a single class) may direct the time,
method and place of conducting any proceeding
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for any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction
that conflicts with any law or this Indenture that the Trustee determines may
be unduly prejudicial to the rights of another Securityholder, or that may
involve the Trustee in personal liability; provided that the Trustee may take
any other action deemed proper by the Trustee which is not inconsistent with
such direction.
SECTION 7.06. LIMITATION ON SUITS.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities of the applicable Series unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in principal amount of the
outstanding Securities of the Series in respect of which the Event of
Default has occurred make a written request to the Trustee to pursue
a remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the outstanding Securities of such Series do not
give the Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
A Holder of Securities of any Series may not use this Indenture
to prejudice the rights of any other Holders of Securities of that Series
or to obtain a preference or priority over any other Holders of Securities
of that Series.
SECTION 7.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the
right of any Holder to receive payment of principal of and interest on the
Security, on or after the respective due
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dates expressed in such Security, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 7.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of interest or principal
specified in Section 6.01(1) or (2) occurs and is continuing, the Trustee
may recover judgment in its own name and as trustee of an express trust
against the Company or any other obligor on the Securities of the Series in
respect of which the Event of Default has occurred for the whole amount of
principal and accrued interest remaining unpaid, together with interest
overdue on principal or, in the case of Original Issue Discount Securities,
the then accreted value, and to the extent that payment of such interest is
lawful, interest on overdue installments of interest, in each case at the
rate per annum borne by such Securities or, in the case of Original Issue
Discount Securities, at a rate equal to the Yield to Maturity thereof, and
such further amount as shall be sufficient to cover the costs and expenses
of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
SECTION 7.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and 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 the
Securityholders allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Securities), its creditors or its property and
shall be entitled and empowered to collect and receive any monies or other
property payable or deliverable on any such claims and to distribute the
same, and any Custodian in any such judicial proceedings is hereby authorized
by each Securityholder 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
Securityholders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section
8.07. Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder
any plan of reorganization, arrangement,
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adjustment or composition affecting the Securities of any Series or the
rights of any Holder thereof, or to authorize the Trustee to vote in respect
of the claim of any Securityholder in any such proceeding.
SECTION 7.10. PRIORITIES.
If the Trustee collects any money or property pursuant to this
Article 7 with respect to Securities of a Series, it shall pay out the
money or property in the following order:
First: to the Trustee for amounts due under Section 8.07;
Second: to Holders for amounts due and unpaid on the
Securities of such Series in respect of which monies have been
collected for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on
such Securities for principal and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix
a record date and payment date for any payment to Securityholders pursuant
to this Section 7.10.
SECTION 7.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing
by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or
defenses made by the party litigant. This Section 7.11 does not apply to a
suit by the Trustee, a suit by a Holder pursuant to Section 7.07, or a suit
by any Holder or a group of Holders of more than 10% in principal amount of
the outstanding Securities of all Series (or, if the matter in issue does
not relate to all Series of Securities, then the Holders of 10% in
principal amount of the outstanding Securities of all Series to which such
issue relates) (treated as a single class).
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ARTICLE 8
TRUSTEE
SECTION 8.01. DUTIES OF TRUSTEE.
(a) The Trustee, except during the continuance of an Event of
Default known to it pursuant to Section 7.01, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture.
If an Event of Default known to the Trustee pursuant to Section 7.01 has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default known
to the Trustee pursuant to Section 7.01:
(1) the Trustee need perform only those duties as are
specifically set forth in this Indenture and no others and no implied
covenants or obligations shall be read into this Indenture against
the Trustee;
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture, however, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) this paragraph does not limit the effect of paragraphs (a)
and (b) of this Section 8.01;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts;
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(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 7.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of
its rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
8.01.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company in writing.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 8.02. RIGHTS OF TRUSTEE.
Subject to Section 8.01:
(a) the Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person;
the Trustee need not investigate any fact or matter stated in the
document;
(b) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which
shall conform to Section 11.05; the Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on
such certificate or opinion;
(c) the Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any
agent appointed with due care;
(d) the Trustee shall not be liable for any action it takes
or omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers;
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(e) the Trustee may consult with counsel and the advice or
opinion of such counsel as to matters of law shall be full and
complete authorization and protection in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance
with the advice or opinion of such counsel; and
(f) 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 the Holders, including, without limitation, the
duties, rights and powers specified in Section 7.02 hereof, unless
such Holders have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by the Trustee in compliance with such request or action.
SECTION 8.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. However, the Trustee is subject
to Sections 8.10 and 8.11.
SECTION 8.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities of any Series, it shall not be
accountable for the recitals contained in this Indenture or for the Company's
use of the proceeds from the Securities of any Series, and it shall not be
responsible for any statement in the Securities of any Series, or in any
prospectus used to sell the Securities of any Series, other than its
certificate of authentication.
SECTION 8.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing with
respect of any Series of Securities, and if it is actually known to the
Trustee pursuant to Section 7.01 hereof, the Trustee shall mail to each
Holder of the Securities of such Series notice of the Default or Event of
Default within 60 days after it occurs. Except in the case of a Default or
Event of Default in payment of principal of or interest on any Security or in
the payment of any Sinking Fund installment, the Trustee
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may withhold such notice if and so long as a committee of its Trust Officers
in good faith determines that withholding the notice is in the interest of
Securityholders.
SECTION 8.06. REPORTS BY TRUSTEE TO HOLDERS.
The Trustee shall transmit to the Holder such reports concerning,
among other things, the Trustee and its action under this Indenture as may be
required pursuant to the TIA at the time and in compliance with TIA
Section 313(a). The Trustee also shall comply with TIA Sections 313(b)(2)
and 313(c).
A copy of each such report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange, if any,
on which the Securities of any Series are listed.
The Company shall notify the Trustee if the Securities of any
Series become listed on any stock exchange.
SECTION 8.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed upon in writing by the Company and the
Trustee. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse
the Trustee upon request for all reasonable disbursements, expenses and
advances incurred or made by it. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability incurred by it in connection with the
administration of this trust and its duties hereunder, including the
reasonable expenses of defending itself against any claim of liability
arising hereunder. The Trustee shall notify the Company promptly of any
claim asserted against the Trustee for which it may seek indemnity. The
Company need not pay for any settlement made without its written consent,
which consent shall not be unreasonably withheld. The Company need not
reimburse any expense or indemnify against any loss or liability incurred by
the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section 8.07,
the Trustee shall have a lien prior to the
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Securities of each Series on all money or property held or collected by the
Trustee, in its capacity as Trustee, except money or property held in trust
to pay principal of or interest on particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 7.01(5) or (6) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 8.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company in writing.
The Holders of a majority in principal amount of the outstanding Securities
of all Series (voting as a single class) may remove the Trustee by so
notifying the Trustee in writing and may appoint a successor Trustee with the
Company's consent. Pursuant to a Company Order, the Company may remove the
Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the Securities of all Series
(voting as a single class) may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall transfer, after payment of all sums then
owing to the Trustee pursuant to Section 8.07, all property held by it as
Trustee to the successor Trustee, subject to the lien provided in Section
8.07, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the
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rights, powers and duties of the Trustee under this Indenture. A successor
Trustee shall mail notice of its succession to each Securityholder.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company
or the Holders of at least 10% in principal amount of the outstanding
Securities of all Series (voting as a single class) may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 8.10, any
Securityholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee. Any
successor Trustee shall comply with TIA Section 310(a)(5).
Notwithstanding replacement of the Trustee pursuant to this
Section 8.08, the Company's obligations under Section 8.07 shall continue for
the benefit of the retiring Trustee.
SECTION 8.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to,
another corporation, the resulting, surviving or transferee corporation
without any further act shall be the successor Trustee.
SECTION 8.10. ELIGIBILITY DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall have combined
capital and surplus of at least $50,000,000 as set forth in its most recent
published annual report of condition. The Trustee shall comply with TIA
Section 310(b), including the provision permitted by the second sentence of
TIA Section 310(b).
SECTION 8.11. PREFERENTIAL COLLECTION OF
CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding from
the operation of 311(a) any creditor relationship listed in TIA Section 311(b).
A Trustee who has resigned or been removed shall be subject to TIA Section
311(a) to the extent indicated.
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ARTICLE 9
DISCHARGE OF INDENTURE
SECTION 9.01. TERMINATION OF COMPANY'S OBLIGATIONS.
The Company may terminate its obligations under the Securities of
any Series and this Indenture with respect to such Series, except those
obligations referred to in the immediately succeeding paragraph, (a) if all
Securities of such Series previously authenticated and delivered (other than
destroyed, lost or stolen Securities of such Series which have been replaced
or paid or Securities of such Series for whose payment money or securities
have theretofore been held in trust and thereafter repaid to the Company, as
provided in Section 9.03) have been delivered to the Trustee for cancellation
and the Company has paid all sums payable by it hereunder, or (b) if,
following the date on which the Company shall have given notice to the
Trustee of its intention to defease all of the Securities of such Series, the
Company has irrevocably deposited or caused to be deposited with the Trustee
or a Paying Agent (other than the Company or a Subsidiary), under the terms
of an irrevocable trust agreement in form and substance satisfactory to the
Trustee and any such Paying Agent, as trust funds in trust solely for the
benefit of the Holders for that purpose (i) in the case of any Securities of
any Series denominated in United States dollars, an amount of cash sufficient
to pay principal of and interest on such outstanding Securities at their
respective Stated Maturities, or direct non-callable obligations of, or
non-callable obligations guaranteed by, the United States of America for the
payment of which guarantee or obligation the full faith and credit of the
United States is pledged, including but not limited to depository receipts
issued by a bank as custodian with respect to any such security held by the
custodian for the benefit of the holder of such depository receipt ("U.S.
Government Obligations"), maturing as to principal and interest in such
amounts and at such times as are sufficient without consideration of any
reinvestment of such interest, to pay principal of and interest on such
outstanding Securities at their respective Stated Maturities and (ii) in the
case of any Securities of any Series denominated in any currency other than
United States dollars, an amount of the Required Currency sufficient to pay
principal of and interest on such outstanding Securities at their respective
Stated maturities; PROVIDED that the Trustee or such Paying Agent shall have
been irrevocably instructed to apply such cash, the proceeds of such U.S.
Government Obligations or the Required
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Currency, as the case may be, to the payment of said principal and interest
with respect to the Securities of such Series; and PROVIDED, FURTHER, that if
such irrevocable deposit in trust with the Trustee of cash, U.S. Government
Obligations or the Required Currency, as the case may be, is made on or prior
to one year from the Stated Maturity for payment of principal of the
Securities of the applicable Series, the Company shall have delivered to the
Trustee either an Opinion of Counsel with no material qualifications in form
and substance satisfactory to the Trustee to the effect that Holders of such
Securities (i) will not recognize income, gain or loss for Federal income tax
purposes as a result of such deposit (and the defeasance contemplated in
connection therewith) and (ii) will be subject to Federal income tax on the
same amounts and in the same manner and at the same times as would have been
the case if such deposit and defeasance had not occurred, or an applicable
favorable ruling to that effect received from or published by the Internal
Revenue Service.
Notwithstanding the foregoing paragraph, the Company's
obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 5.01, 5.02, 8.07, 8.08,
9.03 and 9.04, and except as otherwise provided in the Authorizing Resolution
and/or the supplemental indenture (if any) in respect of any Series, shall
survive until the Securities are no longer outstanding. Thereafter, the
Company's obligations in Sections 8.07, 9.03 and 9.04 shall survive.
After any such irrevocable deposit the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of the applicable Series and this Indenture with respect to such
Series except for those surviving obligations specified above.
SECTION 9.02. APPLICATION OF TRUST MONEY.
The Trustee or Paying Agent shall hold in trust cash, U.S.
Government Obligations or the Required Currency, as the case may be,
deposited with it pursuant to Section 9.01, and shall apply the deposited
cash, the money from U.S. Government Obligations or the Required Currency, as
the case may be, in accordance with this Indenture to the payment of
principal of and interest on the Securities.
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SECTION 9.03. REPAYMENT TO COMPANY.
Subject to Section 9.01, the Trustee and the Paying Agent shall
promptly pay to the Company upon request any excess money held by them at
any time. Subject to the provisions of applicable law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them
for the payment of principal or interest that remains unclaimed for two
years, PROVIDED, HOWEVER, the Trustee or such Paying Agent before being
required to make any payment may at the expense of the Company cause to be
published once in a newspaper of general circulation in The City of New
York or mail to each Holder entitled to such money notice that such money
remains unclaimed and that, after a date specified therein which shall be
at least 30 days from the date of such publication or mailing, any
unclaimed balance of such money then remaining will be repaid to the
Company. After payment to the Company, the Trustee shall be released from
all further liability with respect to such money and Securityholders
entitled to money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another person.
SECTION 9.04. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any cash,
U.S. Government Obligations or the Required Currency, as the case may be,
in accordance with Section 9.01 by reason of any legal proceeding or by
reason of any order or judgment of any court or governmental authority
enjoining, restraining or otherwise prohibiting such application, the
Company's obligations under this Indenture (with respect to the applicable
Series) and the Securities of the applicable Series shall be revived and
reinstated as though no deposit had occurred pursuant to Section 9.01 until
such time as the Trustee or Paying Agent is permitted to apply all such
cash, U.S. Government Obligations and Required Currency, as the case may
be, in accordance with Section 9.01; PROVIDED, HOWEVER, that if the Company
has made any payment of interest on or principal of any Securities of any
Series 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 cash, U.S. Government Obligations or the Required
Currency, as the case may be, held by the Trustee or Paying Agent.
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SECTION 9.05. INDEMNITY FOR U.S.
GOVERNMENT OBLIGATIONS.
The Company shall pay, and shall indemnify the Trustee against,
any tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Section 9.01 or the principal and interest
received on such U.S. Government Obligations.
ARTICLE 10
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. WITHOUT CONSENT OF HOLDERS.
The Company, when authorized by a Board Resolution, and the
Trustee may amend or supplement this Indenture or the Securities of any
Series without notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 6;
(3) to provide for uncertificated Securities in addition to
certificated Securities;
(4) to secure the Securities in connection with Section 5.11;
(5) to make any change that does not adversely affect the
rights of any Securityholder of such Series;
(6) to provide for the issuance and the terms of any
particular Series of Securities, the rights and obligations of the
Company and the Holders of Securities of such Series, the form or
forms of the Securities of such Series and such other matters in
connection therewith as the Board of Directors of the Company shall
consider appropriate, including, without limitation, provisions for
(a) additional or different covenants, restrictions or conditions
applicable to such Series, (b) additional or different Events of
Default in respect of such Series, (c) a longer or shorter period of
grace and/or notice in respect of any provision applicable to such
Series than is provided in Section 7.01, (d) immediate enforcement of
any Event of Default in respect of such Series or (e) limita-
<PAGE>
-49-
tions upon the remedies available in respect of any Events of Default in
respect of such Series or upon the rights of the holders of
Securities of such Series to waive any such Event of Default;
PROVIDED, that this paragraph (6) shall not be deemed to require the
execution of a supplemental indenture to provide for the issuance of
any Series of Securities unless the same shall be provided for in the
Authorizing Resolution relating thereto; or
(7) to provide for a separate Trustee for one or more Series.
SECTION 10.02. WITH CONSENT OF HOLDERS.
Subject to Section 7.07, with the written consent of the
Holders of at least a majority in principal amount of the outstanding
Securities of all Series affected thereby (voting as a single class), the
Company, when authorized by a Board Resolution, and the Trustee may amend
or supplement this Indenture or such Securities without notice to any
Securityholder. Subject to Section 7.07, the Holders of a majority in
principal amount of the outstanding Securities of all Series affected
thereby (voting as a single class) may waive compliance by the Company with
any provision of this Indenture or such Securities without notice to any
Securityholder; PROVIDED, that, only the holders of a majority in principal
amount of Securities of a particular Series may waive compliance with a
provision of this Indenture or the Securities of such Series having
applicability solely to such Series. However, without the consent of each
Securityholder affected, an amendment, supplement or waiver, including a
waiver pursuant to Section 7.04, may not:
(1) reduce the amount of Securities of such Series or all
Series (voting as a single class), as the case may be, whose Holders
must consent to an amendment, supplement or waiver;
(2) reduce the rate or change the Stated Maturity for payment
of interest on any Security;
(3) reduce the principal or any premium payable upon the
redemption of or change the Stated Maturity of any Security;
(4) waive a default in the payment of the principal of or
interest on any Security;
<PAGE>
-50-
(5) make any changes in Section 7.04, 7.07 or the third
sentence of this Section 10.02; or
(6) make any Security payable in money other than that stated
in the Security.
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 the Indenture of the Holders of Securities of any other
Series.
It shall not be necessary for the consent of the Holders under
this Section to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure
of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such supplemental
indenture.
SECTION 10.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 10.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent to it
by a Holder is a continuing consent by the Holder and every subsequent
Holder of such Security or portion of such Security that evidences the same
debt as the consenting Holder's Security, even if notation of the consent
is not made on any Security. However, any such Holder or subsequent Holder
may revoke in writing the consent as to his Security or portion of a
Security. Such revocation shall be effective only if the Trustee receives
the written notice of revocation before the date the amendment, supplement
or waiver becomes effective.
<PAGE>
-51-
The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Holders entitled to consent to any
amendment, supplement or waiver which shall be at least 30 days prior to
the first solicitation of such consent. If a record date is fixed, then
notwithstanding the last two sentences of the immediately preceding
paragraph, those persons who were Holders at such record date (or their
duly designated proxies), and only those persons, shall be entitled to
consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such persons continue to be Holders after
such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
After an amendment, supplement or waiver becomes effective, it
shall bind every Holder of a Security of such Series, unless it makes a
change described in any of clauses (1) through (6) of Section 9.02. In
that case the amendment, supplement or waiver shall bind each Holder of a
Security who has consented to it and every subsequent Holder of a Security
or portion of a Security of the same Series that evidences the same debt as
the consenting Holder's Security.
SECTION 10.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of a
Security, the Trustee may require the Holder of the Security to deliver it
to the Trustee. The Trustee may place an appropriate notation on the
Security about the changed terms and return it to the Holder.
Alternatively, if the Company or the Trustee so determines, the Company in
exchange for the Security shall issue and the Trustee shall authenticate a
new Security of the same Series that reflects the changed terms.
SECTION 10.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that the execution of any amendment, supplement or waiver
authorized pursuant to this Article 10 is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, execute any
such amendment, supplement or waiver which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
<PAGE>
-52-
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be included in this
Indenture by the TIA, the required provision shall control.
SECTION 11.02. NOTICES.
Any notice or communication shall be sufficiently given if in
writing and delivered in person or mailed by first-class mail addressed as
follows:
if to the Company:
Forest Oil Corporation
1600 Broadway
Suite 2200
Denver, Colorado 80202
Attention:
if to the Trustee:
Attention: Corporate Trust Department
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed to a Securityholder shall be
mailed to him at his address as it appears on the Security Register and
shall be sufficiently given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given
only when
<PAGE>
-53-
received, if a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 11.03. COMMUNICATIONS BY
HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b)
with other Securityholders with respect to their rights under this Indenture
or the Securities of an applicable Series. The Company, the Trustee, the
Registrar and any other person shall have the protection of TIA Section 312(c).
SECTION 11.04. CERTIFICATE AND OPINION
AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee
to take any action under this Indenture, the Company shall furnish to the
Trustee:
(1) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with;
and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 11.05. STATEMENTS REQUIRED IN
CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture, other than the
Officers' Certificate required by Section 5.08, shall include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has
made such examination or investigation as is
<PAGE>
-54-
necessary to enable him to express an informed opinion as to whether
or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with; PROVIDED,
HOWEVER, that with respect to matters of fact an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public
officials.
SECTION 11.06. RULES BY TRUSTEE,
PAYING AGENT, REGISTRAR.
The Trustee may make reasonable rules for action by or at a
meeting of Securityholders. The Paying Agent or Registrar may make
reasonable rules for its functions.
SECTION 11.07. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday or a day on which
banking institutions in New York, New York are not required to be open. If
a payment date is a Legal Holiday at a place of payment, payment may be
made at the place on the next succeeding day that is not a Legal Holiday,
and no interest shall accrue for the intervening period.
SECTION 11.08. GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS INDENTURE
AND THE SECURITIES WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
SECTION 11.09. NO ADVERSE INTERPRETATION
OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of the Company or any of its Subsidiaries. Any such
indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 11.10. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect
of or by reason of such
<PAGE>
-55-
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability.
SECTION 11.11. SUCCESSORS.
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
SECTION 11.12. DUPLICATE ORIGINALS.
The parties may sign any number of copies of the Indenture.
Each signed copy shall be an original, but all of them together represent
the same agreement.
SECTION 11.13. SEPARABILITY.
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, and a Holder shall have no claim therefor against any
party hereto.
SECTION 11.14. ACTION OF HOLDERS WHEN SECURITIES ARE
DENOMINATED IN DIFFERENT CURRENCIES.
Whenever any action is to be taken hereunder by the Holders of
two or more Series of Securities denominated in different currencies, then,
for the purposes of determining the principal amount of Securities held by
such Holders, the aggregate principal amount of the Securities denominated
in a currency other than United States dollars shall be deemed to be that
amount of United States dollars that could be obtained for such principal
amount on the basis of the spot rate of exchange for such currency as
determined by the Company or by an authorized exchange rate agent and
evidenced to the Trustee by an Officers' Certificate as of the date the
taking of such action by the Holders of the requisite percentage in
principal amount of the Securities is evidenced to the Trustee. An
exchange rate agent may be authorized in advance or from time to time by
the Company, and may be the Trustee or its Affiliate. Any such
determination by the Company or by any such exchange rate agent shall be
conclusive and binding on all Holders and the Trustee, and neither the
Company nor such exchange rate agent shall be liable therefor in the
absence of bad faith.
<PAGE>
-56-
SECTION 11.15. MONIES OF DIFFERENT
CURRENCIES TO BE SEGREGATED.
The Trustee shall segregate monies, funds, and accounts held by
the Trustee hereunder in one currency from any monies, funds or accounts in
any other currencies, notwithstanding any provision herein which would
otherwise permit the Trustee to commingle such amounts.
SECTION 11.16. PAYMENT TO BE IN PROPER CURRENCY.
Each reference in any Security, or in the Authorizing
Resolution and/or supplemental indenture, if any, relating thereto, to any
currency shall be of the essence. In the case of any Security denominated
in any currency (the "Required Currency") other than United States dollars,
except as otherwise provided therein or in the related Authorizing
Resolution and/or supplemental indenture, if any, the obligation of the
Company to make any payment of principal of or interest thereon shall not
be discharged or satisfied by any tender by the Company, or recovery by the
Trustee, in any currency other than the Required Currency, except to the
extent that such tender or recovery shall result in the Trustee timely
holding the full amount of the Required Currency. The costs and risks of
any such exchange, including without limitations, the risks of delay and
exchange rate fluctuation, shall be borne by the Company; the Company shall
remain fully liable for any shortfall or delinquency in the full amount of
Required Currency then due and payable, and in no circumstances shall the
Trustee be liable therefor. The Company hereby waives any defense of
payment based upon any such tender or recovery which is not in the Required
Currency, or which, when exchanged for the Required Currency by the
Trustee, is less than the full amount of Required Currency then due and
payable.
<PAGE>
-57-
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the date first written above.
FOREST OIL CORPORATION
[SEAL]
Attest: By:
--------------------------- ---------------------------
as Trustee
[SEAL]
Attest: By:
--------------------------- ---------------------------
<PAGE>
EXHIBIT A
[FORM OF FACE OF SECURITY]
[If the Holder of this Security (as indicated below) is The
Depository Trust Company ("DTC") or a nominee of DTC, this Security is a
Global Security and the following two legends apply:
Unless this Security is presented by an authorized representative
of The Depository Trust Company ("DTC"), 55 Water Street, New York, New York
to the issuer or its agent for registration of transfer, exchange or
payment,l and such Security issued is registered in the name of CEDE & CO.,
or such other name as requested by an authorized representative of DTC, ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL, since the registered owner hereof, CEDE & CO., has an
interest herein.
Unless it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred except as
a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC or by DTC or any such nominee to a successor of DTC or a
nominee of such successor.]
[The following is to be included if the Security is an Original
Issue Discount Security:]
[FOR PURPOSES OF SECTION 1373 AND 1375 OF THE UNITED STATES
INTERNAL REVENUE CODE OF 1986, AS AMENDED: (I) THE ISSUE DATE OF THIS
SECURITY IS ____________; (II) THE YIELD TO MATURITY IS ___%; (III) THE
ORIGINAL ISSUE DISCOUNT PER $______ FACE AMOUNT AT WHICH THE SECURITY IS
ISSUED IS $______; AND (IV) THE [EXACT] [APPROXIMATE] METHOD HAS BEEN USED
TO DETERMINE YIELD FOR THE ACCRUAL PERIOD BEGINNING ____________ AND ENDING
____________ AND THE AMOUNT OF THE ORIGINAL ISSUE DISCOUNT PER $______ FACE
AMOUNT ALLOCABLE TO THE ACCRUAL PERIOD BEGINNING ____________ AND ENDING
____________ IS $______].
<PAGE>
-2-
FOREST OIL CORPORATION
[Title of Security]
Rate of Interest Maturity Date Original Issue Date
- ---------------- ------------- -------------------
No.____________ $____________
Forest Oil Corporation, a corporation duly organized and
existing under the laws of the State of New York (herein called the
"Company"), for value received, hereby promises to pay to
or registered assigns, the principal sum of on the Maturity Date
shown above, and to pay interest thereon, at the annual rate of interest
shown above, from the Original Issue Date shown above or from the most
recent Interest Payment Date (as hereinafter defined) to which interest has
been paid or duly provided for, payable semi-annually on and
of each year and at maturity (an "Interest Payment Date"),
commencing on the first such date after the Original Issue Date, except
that if the Original Issue Date is on or after a Regular Record Date but
before the next Interest Payment Date, interest payments will commence on
the second Interest Payment Date following the Original Issue Date.
[reference to currency[ies] of payment and currency exchange
arrangements, if applicable.]
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be
paid to the person in whose name this [name of Security] is registered at
the close of business on the Regular Record Date for any such Interest
Payment Date, which shall be the fifteenth calendar day (whether or not a
Business Day) preceding the applicable Interest Payment Date. Any such
interest not so punctually paid or duly provided for, and any interest
payable on such defaulted interest (to the extent lawful), will forthwith
cease to be payable to the Holder on such Regular Record Date and shall be
paid to the person in whose name this [name of Security] is registered at
the close of business on a special record date for the payment of such
defaulted interest to be fixed by the Company, notice of which shall be
given to Holders of [name of Series] not less than 15 days prior to such
special record date. Payment of the
<PAGE>
-3-
principal of and interest on this [name of Security] will be made at the
agency of the Company maintained for that purpose in
[New York, New York or other place of payment] and at any other office or
agency maintained by the Company for such purpose, in
[reference to United States dollars or other currency of payment]; PROVIDED,
HOWEVER, that at the option of the Company payment of interest, other than
interest due on the Maturity Date, may be made by check mailed to the address
of the person entitled thereto as such address shall appear in the Security
Register. [Include the following, if applicable:] Payments on the Maturity
Date will be made in immediately available funds against presentment of this
[name of Security].
Reference is hereby made to the further provisions of this
[name of Security] set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
[name of Security] shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the FOREST OIL CORPORATION has caused this
instrument to be executed in its corporate name by the facsimile signature of
its duly authorized officers and has caused a facsimile of its corporate seal
to be affixed hereunto or imprinted hereon.
FOREST OIL CORPORATION
ATTEST: By:
-------------------------- -------------------------------
[Assistant] Secretary [Title of Officer]
<PAGE>
-4-
DATED:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the [name of Series] referred to in the
within-mentioned Indenture.
By:
-------------------------------
Authorized Signatory
[REVERSE SIDE]
FOREST OIL CORPORATION
[Name of Security]
This [name of Security] is one of a duly authorized issue of
[name of Securities] of the Company (which term includes any successor
corporation under the Indenture hereinafter referred to) designated as its
[title of Series] (the "[name of Series]"), issued or to be
issued pursuant to an Indenture, dated as of , 199_ (the
"Indenture"), between the Company and _________________ as Trustee (the
"Trustee," which term includes any successor trustee under the Indenture);
and under [reference to Authorizing Resolution and/or supplemental
indenture (if any) relating to the Series]. The terms of this [name of
Security] include those stated in the Indenture and [reference to
Authorizing Resolution and/or supplemental indenture (if any) relating to
the Series] and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as in effect on the date of the Indenture.
Reference is hereby made to the Indenture and all [further] supplemental
indentures thereto for a statement of the respective rights, limitation of
rights, duties and immunities thereunder of the Company, the Trustee and
the Holders and of the terms upon which the [name of Security] are, and are
to be, authenticated and delivered.
This [name of Series] is a Series of Securities issued or to be
issued by the Company under the Indenture, and this Series is limited in
aggregate principal amount to $ . The Indenture provides that the
Securities of the
<PAGE>
-5-
Company referred to therein ("Securities"), including the [name of Series],
may be issued in one or more Series, which different Series may be issued in
such aggregate principal amounts and on such terms (including, but not
limited to, terms relating to interest rate or rates, provisions for
determining such interest rate or rates and adjustments thereto, maturity,
redemption (optional and mandatory), sinking fund, covenants and Events of
Default) as may be provided in or pursuant to the Authorizing Resolutions
and/or supplemental indenture (if any) relating to the several Series.
The [name of Series] are subordinated in right of payment, in
the manner and to the extent set forth in the Indenture, to the prior
payment in full of all Senior Indebtedness (as defined in the Indenture).
Each Holder by accepting a Security agrees to such subordination and
authorizes the Trustee to give it effect.
[The following to be included if the Securities are not
redeemable prior to maturity.]
This [name of Security] may not be redeemed prior to its
Maturity Date.
[The following paragraph, or other appropriate redemption
provisions, to be included if the Securities are Redeemable Securities:]
The [name of Series] are subject to redemption upon not less
than 30 nor more than 60 days' notice by mail, [the following clause to be
included if there is a Sinking Fund:] [(1) on [annual Sinking Fund
Redemption Date] in each year commencing with the year [year of first
Sinking Fund payment] through operation of the Sinking Fund at a Redemption
Price equal to their principal amount and (2)] [at any time or from time to
time] in whole or in part, at the election of the Company at a Redemption
Price equal to the percentage set forth below of the principal amount to be
redeemed for the respective twelve-month periods beginning
[ ] of the years indicated:
[Schedule of Redemption Prices]
<PAGE>
-6-
and thereafter at 100% of the principal amount thereof, together in each
case with accrued interest to the Redemption Date.
[The following paragraph, or other appropriate Sinking Fund
provision, to be included if there is a Sinking Fund for the Series:]
The Sinking Fund provides for the redemption on [first Sinking
Fund Redemption Date] and on [annual Sinking Fund Redemption Date] in each
year thereafter through [year of final Sinking Fund date] of not less than
[minimum required Sinking Fund redemption amount] principal amount not more
than [maximum permitted Sinking Fund redemption amount] principal amount of
[name of Series], [name of Series] purchased, acquired or redeemed by the
Company otherwise than by redemption through the Sinking Fund may be credited
against Sinking Fund requirements to the extent not previously so credited.
[The following paragraph to be included if the Securities are
Redeemable Securities or Sinking Fund Securities:]
If an event of redemption of this [name of Security] in part
only, a new [name of Security] or [name of Series] for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
surrender hereof.
[The following paragraph to be included if the Securities are
not Original Issue Discount Securities:]
If an Event of Default, as defined in the Indenture and in the
Authorizing Resolution and/or supplemental indenture (if any) relating to
the [name of Series] (if there shall be any additional Events of Default
specified in respect of the [name of Series]), shall occur and be
continuing, the principal of all the [name of Series] may be declared due
and payable in the manner and with the effect provided in the Indenture.
[If the Securities are Original Issue Discount Securities,
insert schedule as to amounts which are payable on acceleration under
Section 7.02 and provable in bankruptcy under Section 7.09 from time to
time.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the [name of
Series] under the Indenture at any time
<PAGE>
-7-
by the Company and the Trustee with the consent of the Holders of a majority
in aggregate principal amount of the Securities affected thereby, voting as a
single class (which may include the [name of Series]), at the time
outstanding. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate principal amount of the Securities at
the time outstanding to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this
[name of Security] shall be conclusive and binding upon such Holder and upon
all future Holders of this [name of Security] and of any [name of Security]
issued upon the registration of transfer hereof or in exchange herefor in
lieu hereof, whether or not notation of such consent or waiver is made upon
this [name of Security].
The Indenture provides that no Holder may pursue any remedy under
the Indenture unless the Trustee shall have failed to act after notice of an
Event of Default and written request by Holders of at least 25% in principal
amount of the [name of Securities]of the applicable Series and the offer to
the Trustee of indemnity satisfactory to it; however, such provision does not
affect the right to sue for enforcement of any overdue payment on any
Security.
No reference herein to the Indenture and no provision of this
[name of Security] or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the principal
of and interest on this [name of Security] at the times, places and rates,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this [name of Security] is registrable
in the Security Register upon surrender of this [name of Security] for
registration of transfer at the agency of the Company provided for that
purpose duly endorsed by, or accompanied by a written instrument of
transfer in substantially the form accompanying this [name of Security]
duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new [name of Series], of authorized
denominations and for the same aggregate principal amount, will be issued
to the designated transferee or transferees.
The [name of Series] are issuable only in registered form
without coupons in denominations of [currency and minimum
<PAGE>
-8-
denomination] and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the
[name of Series] are exchangeable for a like aggregate principal amount of
[name of Series] of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges pursuant to Section 2.11, 3.08
or 10.05 in which case such transfer taxes or similar governmental charges
shall be paid by the Company).
Prior to due presentment of this [name of 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 this [name of
Security] is registered as the owner hereof for all purposes, whether or
not this [name of Security] be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
[Reference to Foreign Currencies]
All terms used in this [name of Security] which are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
Customary abbreviations may be used in the name of a [name of
Security] holder or any assignee, such as: TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right
of survivorship and not as tenants in common), CUST (= Custodian) and
U/G/M/A (= Uniform Gifts to Minors Act).
The Company will furnish to any [name of Security] holder of
record, upon written request, without charge, a copy of the Indenture.
Requests may be made to: Forest Oil Corporation, 1600 Broadway, Suite
2200, Denver, Colorado 80202, Attention: Corporate Secretary.
<PAGE>
-9-
ASSIGNMENT FORM
If you the holder want to assign this [name of Security], fill
in the form below and have your signature guaranteed:
I or we assign and transfer this [name of Security] to:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignees)
and irrevocably appoint, ______________________________________ agent to
transfer this [name of Security] on the books of the Company. The agent
may substitute another to act for him.
Dated: Signed:
------------------ -------------------------------
--------------------------------------
(Sign exactly as name appears
on other side of this [name of
Security])
Signature Guarantee:
----------------------------------------------
NOTICE: Signature(s) must be guaranteed by a member firm of the New York
Stock Exchange or a commercial bank or trust company.
<PAGE>
- ---------------------------------------------------------------
- ---------------------------------------------------------------
FOREST OIL CORPORATION
and
-------------------, as Trustee
--------------------
SUBORDINATED INDENTURE
Dated as of ---------------
--------------------
Subordinated Debt Securities
- ---------------------------------------------------------------
- ---------------------------------------------------------------
<PAGE>
CROSS-REFERENCE TABLE
Indenture
TIA Section Section
---------
SECTION 310 (a)(1) ............................. 8.10
(a)(2) ............................. 8.10
(a)(3) ............................. N.A.
(a)(4) ............................. N.A.
(a)(5) ............................. 8.08
(b) ................................ 8.08; 8.10; 11.02
(c) ................................ N.A.
SECTION 311 (a) ................................ 8.11
(b) ................................ 8.11
(c) ................................ N.A.
SECTION 312 (a) ................................ 2.06
(b) ................................ 11.03
(c) ................................ 11.03
SECTION 313 (a) ................................ 8.06
(b)(1) ............................. N.A.
(b)(2) ............................. 8.06
(c) ................................ 8.06; 11.02
(d) ................................ 8.06
SECTION 314 (a) ................................ 5.05; 11.02
(b) ................................ N.A.
(c)(1) ............................. 11.04
(c)(2) ............................. 11.04
(c)(3) ............................. N.A.
(d) ................................ N.A.
(e) ................................ 11.05
(f) ................................ N.A.
SECTION 315 (a) ................................ 8.01(b)
(b) ................................ 8.05; 11.02
(c) ................................ 8.01(a)
(d) ................................ 8.01(c)
(e) ................................ 7.11
SECTION 316 (a)(last sentence) ................. 2.10
(a)(1)(A) .......................... 7.05
(a)(1)(B) .......................... 7.04
(a)(2) ............................. N.A.
(b) ................................ 7.07
(c) ................................ 10.04
SECTION 317 (a)(1) ............................. 7.08
(a)(2) ............................. 7.09
(b) ................................ 2.05
SECTION 318 (a) ................................ 11.01
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N.A. means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to
be a part of this Indenture.
<PAGE>
TABLE OF CONTENTS
Page
----
RECITALS OF THE COMPANY ............................................. 1
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions .................................... 1
SECTION 1.02. Incorporation by Reference of Trust
Indenture Act ................................ 8
SECTION 1.03. Rules of Construction .......................... 9
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form of Securities ............................. 9
SECTION 2.02. Title and Terms ................................ 10
SECTION 2.03. Execution and Authentication ................... 14
SECTION 2.04. Registrar, Paying Agent and Conversion
Agent ........................................ 17
SECTION 2.05. Paying Agent to Hold Money in Trust............. 17
SECTION 2.06. Securityholder Lists ........................... 18
SECTION 2.07. Transfer and Exchange .......................... 18
SECTION 2.08. Replacement Securities ......................... 21
SECTION 2.09. Outstanding Securities ......................... 22
SECTION 2.10. Treasury Securities ............................ 22
SECTION 2.11. Temporary Securities ........................... 22
SECTION 2.12. Cancellation ................................... 22
SECTION 2.13. Defaulted Interest ............................. 22
SECTION 2.14. Persons Deemed Owners .......................... 23
ARTICLE 3
REDEMPTION
SECTION 3.01. Right of Redemption ............................ 23
SECTION 3.02. Applicability of Article ....................... 24
SECTION 3.03. Election to Redeem; Notice to Trustee........... 24
SECTION 3.04. Selection by Trustee of Securities to be
Redeemed ..................................... 24
SECTION 3.05. Notice of Redemption ........................... 25
SECTION 3.06. Deposit of Redemption Price .................... 26
SECTION 3.07. Securities Payable on Redemption Date .......... 26
SECTION 3.08. Securities Redeemed in Part .................... 27
-i-
<PAGE>
Page
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ARTICLE 4
SINKING FUND
SECTION 4.01. Sinking Fund Payments .......................... 28
SECTION 4.02. Satisfaction of Sinking Fund Payments with
Securities ................................... 28
SECTION 4.03. Redemption of Securities for Sinking Fund ...... 29
ARTICLE 5
COVENANTS
SECTION 5.01. Payment of Securities .......................... 29
SECTION 5.02. Maintenance of Office or Agency ................ 30
SECTION 5.03. Corporate Existence ............................ 30
SECTION 5.04. Compliance Certificate ......................... 31
SECTION 5.05. SEC Reports .................................... 31
SECTION 5.06. Waiver of Stay, Extension or Usury Laws ........ 32
ARTICLE 6
SUCCESSOR CORPORATION
SECTION 6.01. When Company May Merge, etc. ................... 32
SECTION 6.02. Successor Corporation Substituted .............. 33
ARTICLE 6
DEFAULT AND REMEDIES
SECTION 7.01. Events of Default .............................. 33
SECTION 7.02. Acceleration ................................... 35
SECTION 7.03. Other Remedies ................................. 36
SECTION 7.04. Waiver of Past Defaults ........................ 36
SECTION 7.05. Control by Majority ............................ 37
SECTION 7.06. Limitation on Suits ............................ 37
SECTION 7.07. Rights of Holders to Receive Payment ........... 38
SECTION 7.08. Collection Suit by Trustee ..................... 38
SECTION 7.09. Trustee May File Proofs of Claim ............... 38
SECTION 7.10. Priorities ..................................... 39
SECTION 7.11. Undertaking for Costs .......................... 39
ARTICLE 8
TRUSTEE
SECTION 8.01. Duties of Trustee .............................. 40
SECTION 8.02. Rights of Trustee .............................. 41
SECTION 8.03. Individual Rights of Trustee ................... 42
-ii-
<PAGE>
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SECTION 8.04. Trustee's Disclaimer ........................... 42
SECTION 8.05. Notice of Defaults ............................. 43
SECTION 8.06. Reports by Trustee to Holders .................. 43
SECTION 8.07. Compensation and Indemnity ..................... 43
SECTION 8.08. Replacement of Trustee ......................... 44
SECTION 8.09. Successor Trustee by Merger, etc. .............. 45
SECTION 8.10. Eligibility; Disqualification .................. 45
SECTION 8.11. Preferential Collection of Claims Against
Company ...................................... 46
ARTICLE 9
DISCHARGE OF INDENTURE
SECTION 9.01. Termination of Company's Obligations ........... 46
SECTION 9.02. Application of Trust Money ..................... 48
SECTION 9.03. Repayment to Company ........................... 48
SECTION 9.04. Reinstatement .................................. 48
SECTION 9.05. Indemnity for U.S. Government Obligations ...... 49
ARTICLE 10
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders ..................... 49
SECTION 10.02. With Consent of Holders ........................ 50
SECTION 10.03. Compliance With Trust Indenture Act............. 51
SECTION 10.04. Revocation and Effect of Consents .............. 51
SECTION 10.05. Notation on or Exchange of Securities .......... 52
SECTION 10.06. Trustee to Sign Amendments, etc. ............... 52
SECTION 10.07 Subordination Unimpaired ....................... 53
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. Trust Indenture Act Controls ................... 53
SECTION 11.02. Notices ........................................ 53
SECTION 11.03. Communications by Holders with Other
Holders ...................................... 54
SECTION 11.04. Certificate and Opinion as to Conditions
Precedent .................................... 54
SECTION 11.05. Statements Required in Certificate or
Opinion ...................................... 54
SECTION 11.06. Rules by Trustee, Paying Agent, Registrar ...... 55
SECTION 11.07. Legal Holidays ................................. 55
SECTION 11.08. Governing Law .................................. 55
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<PAGE>
Page
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SECTION 11.09. No Adverse Interpretation of Other
Agreements ................................... 55
SECTION 11.10. No Recourse Against Others ..................... 56
SECTION 11.11. Successors ..................................... 56
SECTION 11.12. Duplicate Originals ............................ 56
SECTION 11.13. Separability ................................... 56
SECTION 11.14. Action of Holders When Securities Are
Denominated in Different Currencies .......... 56
SECTION 11.15. Monies of Different Currencies to be
Segregated ................................... 57
SECTION 11.16. Payment to be in Proper Currency ............... 57
ARTICLE 12
CONVERSION OF SECURITIES
SECTION 12.01. Applicability of Article ....................... 58
SECTION 12.02. Exercise of Conversion Privilege ............... 58
SECTION 12.03. Fractional Interests ........................... 59
SECTION 12.04. Adjustment of Conversion Price ................. 60
SECTION 12.05. Continuation of Conversion Privilege in
Case of Merger, Consolidation or Sale
of Assets .................................... 64
SECTION 12.06. Notice of Certain Events ....................... 65
SECTION 12.07. Taxes on Conversion ............................ 66
SECTION 12.08. Company to Provide Stock ....................... 67
SECTION 12.09. Disclaimer of Responsibility for Certain
Matters ...................................... 67
SECTION 12.10. Return of Funds Deposited for Redemption
of Converted Securities ...................... 68
ARTICLE 13
SUBORDINATION
SECTION 13.01. Securities Subordinated to Senior
Indebtedness ................................. 68
SECTION 13.02. Reliance on Certificate of Liquidating
Agent; Further Evidence as to Ownership
of Senior Indebtedness ....................... 72
SECTION 13.03. Payment Permitted If No Default ................ 73
SECTION 13.04. Disputes with Holders of Certain Senior
Indebtedness ................................. 73
SECTION 13.05. Trustee Not Charged with Knowledge of
Prohibition .................................. 73
SECTION 13.06. Trustee to Effectuate Subordination............. 74
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<PAGE>
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SECTION 13.07. Rights of Trustee as Holder of Senior
Indebtedness ................................. 74
SECTION 13.08. Article Applicable to Paying Agents............. 75
SECTION 13.09. Subordination Rights Not Impaired by Acts
or Omissions of the Company or Holders
of Senior Indebtedness ....................... 75
SECTION 13.10. Trustee Not Fiduciary for Holders of
Senior Indebtedness .......................... 75
TESTIMONIUM ......................................................... 77
SIGNATURES .......................................................... 77
EXHIBIT A -- Form of Security
- --------------------
NOTE: This Table of Contents shall not, for any purpose, be deemed to be a
part of this Indenture.
-v-
<PAGE>
SUBORDINATED INDENTURE, dated as of ________________, 199_,
between Forest Oil Corporation, a New York corporation (the "Company"), and
_______________________, as Trustee (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of its unsecured
subordinated notes, debentures or other evidences of indebtedness
(collectively, the "Securities"), to be issued from time to time in one or
more series (a "Series") as provided in this Indenture and as shall be
provided, in respect of any Series, in or pursuant to the Authorizing
Resolution hereinafter referred to and/or in the indenture supplemental
hereto (if any) relating to such Series.
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"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 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" means any Registrar, Paying Agent, co-Registrar or
Conversion Agent.
"Authorizing Resolution" means a Board Resolution providing for
the issuance of a Series of Securities.
"Bankruptcy Law" shall have the meaning provided in Section
7.01.
"Blockage Period" shall have the meaning provided in
Section 13.01.
"Board of Directors" means the Board of Directors of the
Company or any duly authorized committee of the Board.
<PAGE>
-2-
"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 (except as provided in
Section 2.03).
"Business Day" means a day that is not a Legal Holiday.
"Capital Stock" means, with respect to any person, any and all
shares, interests, participations or other equivalents (however designated)
of corporate stock of such person other than Mandatory Redemption Preferred
Stock.
"Capitalized Lease Obligation" means Indebtedness represented
by obligations under a lease that is required to be capitalized for
financial reporting purposes in accordance with generally accepted
accounting principles.
"Common Stock" means the common stock, par value $.10 per
share, of the Company, as the same exists at the date of execution and
delivery of this Indenture, or other Capital Stock of the Company into
which such common stock is reclassified or changed from time to time.
"Company" means the party named as such in this Indenture until
a successor replaces it pursuant to this Indenture and thereafter means the
successor.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by two Officers
of the Company or by an Officer and the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, and delivered to the Trustee in
respect of the Series to which the Company Request or Company Order shall
relate.
"Consolidated Subsidiary" means a Subsidiary which for
financial reporting purposes is accounted for by the Company as a
consolidated subsidiary.
"Conversion Agent" shall have the meaning provided in
Section 2.04.
"Conversion Price" shall have the meaning provided in
Section 12.04.
<PAGE>
-3-
"Corporate Trust Office" or other similar term means the
principal office of the Trustee at which at any particular time its
corporate trust business shall be administered, which office at the date
hereof is located at , ; the Trustee
will notify the Company of any change thereof.
"Custodian" shall have the meaning provided in Section 7.01.
"Date of Conversion" shall have the meaning provided in
Section 12.02.
"Default" means any event which is, or after notice or passage
of time or both would become, an Event of Default.
"Default Notice" shall have the meaning provided in
Section 13.01.
"Depository" means, with respect to the Securities of any
Series issuable or issued in the form of one or more Global Securities, the
Person designated as Depository by the Company pursuant to Section 2.02,
initially The Depository Trust Company, until a successor Depository shall
have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Depository" shall mean or include each person who is then a
Depository hereunder, and, if at any time there is more than one such
person, "Depository" as used with respect to the Securities of any such
Series shall mean the Depository with respect to the Global Securities of
such Series.
"Event of Default" shall have the meaning provided in
Section 7.01.
"Extendible Securities" means Securities of any Series issued
hereunder the final maturity of which is extendible for a stated period of
time, as shall be provided in, or pursuant to, the Authorizing Resolution
and/or supplemental indenture (if any) relating to such Series.
"Global Security" means a Security evidencing all or a part of
a Series of Securities issued to and registered in the name of the
Depository for such Series, or its nominee, in accordance with Section 2.02,
and bearing the legend prescribed in Section 2.03.
<PAGE>
-4-
"Holder" or "Securityholder" means, with respect to any
Security, the person in whose name such Security is registered on the
Security Register.
"Indebtedness" means (i) any liability of any person (a) for
borrowed money, (b) evidenced by a note, debenture or similar instrument
(including a purchase money obligation) given in connection with the
acquisition of any property or assets (other than inventory or similar
property acquired in the ordinary course of business), including securities,
or (c) for the payment of money relating to a Capitalized Lease Obligation;
(ii) any guarantee by any person of any liability of others described in the
preceding clause (i); and (iii) any amendment, renewal, extension or
refunding of any liability of the types referred to in clauses (i) and (ii)
above.
"Indenture" means this Indenture as amended or supplemented
from time to time and shall include the forms and terms of particular
Series of Securities established as contemplated hereunder.
"Interest Payment Date" means, for any Series of Securities
issued and outstanding hereunder, the date or dates in each year on which
any interest on such Series is paid or made available for payment.
"Last Sale Price" shall have the meaning provided in
Section 12.03.
"Legal Holiday" shall have the meaning provided in Section 11.07.
"Maturity" when used with respect to any Security means the
date on which the principal of such Security becomes due and payable as
therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Maturity Date" means the date specified in each Security on
which the principal thereof is due and payable in full.
"Officer" means the Principal Executive Officer, Principal
Financial Officer or Principal Accounting Officer of the Company.
<PAGE>
-5-
"Officers' Certificate" means a certificate signed by two
Officers or by an Officer and the Treasurer or an Assistant Treasurer or
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee. See Sections 11.04 and 11.05.
"Opinion of Counsel" means a written opinion from legal counsel
who is acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company. See Sections 11.04 and 11.05.
"Original Issue Date" means the date on which a Security is
issued to the original purchaser thereof, as specified in such Security.
"Original Issue Discount Securities" means Securities which
provide for an amount less than 100% of the principal amount thereof to be
due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 7.02.
"Paying Agent" shall have the meaning provided in Section 2.04,
except that for the purposes of Article 9 the Paying Agent shall not be the
Company or any Subsidiary.
"person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated
organization or government or other agency or political subdivision
thereof.
"principal" of a debt security means the principal of the
security plus, when appropriate, the premium, if any, on the security.
"Redeemable Securities" means Securities of any Series which
may be redeemed, at the option of the Company, prior to the Stated Maturity
thereof, on the terms specified in or pursuant to the Authorizing
Resolution and/or supplemental indenture relating to such Series and in
accordance with Article 3 herein.
"Redemption Date" when used with respect to any Security of any
Series to be redeemed means the date fixed for such redemption by or
pursuant to the provisions of such Security, this Indenture and the
Authorizing Resolution and/or supplemental indenture relating to such
Security.
<PAGE>
-6-
"Redemption Price" when used with respect to any Security of
any Series to be redeemed means the price at which it is to be redeemed
pursuant to the provisions of such Security, this Indenture and the
Authorizing Resolution and/or supplemental indenture relating to such
Security.
"Registrar" shall have the meaning provided in Section 2.04.
"Regular Record Date" means, for the interest payable on any
Interest Payment Date in respect of any Series of Securities, except as
provided in, or pursuant to, the Authorizing Resolution and/or supplemental
indenture (if any) relating thereto, the day (whether or not a Business
Day) that is fifteen days preceding the applicable Interest Payment Date.
"Representative" shall have the meaning provided in
Section 13.01.
"Required Currency" shall have the meaning provided in Section
11.16.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Securities, as amended or supplemented
from time to time pursuant to the terms of this Indenture, of the Company of
any Series that are issued under this Indenture.
"Security Register" shall have the meaning provided in
Section 2.04.
"Senior Indebtedness" means Indebtedness of the Company, whether
outstanding on the date of issue of any Securities or thereafter created,
incurred, assumed or guaranteed by the Company, other than the following:
(i) any Indebtedness as to which, by the terms of the instrument creating or
evidencing such Indebtedness, it is expressly provided that such Indebtedness
is subordinated in right of payment to all Indebtedness of the Company not
expressly subordinated to such Indebtedness, (ii) any Indebtedness which, by
its terms, expressly refers to the Securities and states that such
Indebtedness shall not be senior, shall be PARI PASSU or shall be
subordinated in right of payment to the Securities and (iii) Securities of
the same or another Series.
<PAGE>
-7-
"Series" means, with respect to Securities issued hereunder,
the Securities issued pursuant to any particular Authorizing Resolution
and/or supplemental indenture (if any), subject to the right of the Board
of Directors to specify in such Authorizing Resolution and/or supplemental
indenture (if any) that such Securities shall constitute more than one
Series.
"Sinking Fund" means, with respect to any Sinking Fund
Securities, a sinking fund provided for in Article 3B.
"Sinking Fund Securities" means Securities of any Series which
are required to be redeemed from time to time prior to the Stated Maturity
thereof in whole or in part under a Sinking Fund, on the terms specified in
the Authorizing Resolution and/or supplemental indenture (if any) relating
to such Series and in accordance with Article 4 herein.
"Special Record Date" shall have the meaning provided in
Section 2.13.
"Stated Maturity" when used with respect to any Security or any
installment of interest thereon means the date specified in such Security
as the fixed date on which the principal of such Security or such
installment of interest is due and payable.
"Subsidiary" means (i) a corporation a majority of whose Capital
Stock with voting power, under ordinary circumstances, to elect directors is
at the time, directly or indirectly, owned by the Company, by the Company and
a Subsidiary (or Subsidiaries) of the Company or by a Subsidiary (or
Subsidiaries) of the Company or (ii) any other person (other than a
corporation) in which the Company, a Subsidiary (or Subsidiaries) of the
Company or the Company and a Subsidiary (or Subsidiaries) of the Company,
directly or indirectly, at the date of determination thereof has at least
majority ownership interest; PROVIDED, that no corporation shall be deemed a
Subsidiary until the Company, a Subsidiary (or Subsidiaries) of the Company
or the Company and a Subsidiary (or Subsidiaries) of the Company acquires
more than 50% of the outstanding voting stock thereof and has elected a
majority of its board of directors.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
Sections 77aaa-77bbbb) as in effect on the date of this Indenture except as
provided in Sections 10.03 and 12.05.
<PAGE>
-8-
"Trading Day" shall have the meaning provided in Section 12.03.
"Trustee" means the party named as such in this Indenture until
a successor replaces it in accordance with the provisions of this Indenture
and thereafter means and includes the person or 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 Officer" means any officer or assistant officer of the
Trustee assigned by the Trustee to administer its corporate trust matters.
"U.S. Government Obligations" shall have the meaning provided
in Section 9.01.
"Yield to Maturity" means, with respect to any Series of
Securities, the yield to maturity thereof, calculated at the time of
issuance thereof, or, if applicable, at the most recent redetermination of
interest thereon, and calculated in accordance with accepted financial
practice.
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have the
following meanings:
"Commission" means the SEC;
"indenture securities" means the Securities;
"indenture security holder" means a Securityholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or any
other obligor on the Securities.
<PAGE>
-9-
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule
and not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles in effect in the United States on the date hereof, and any
other reference in this Indenture to "generally accepted accounting
principles" refers to generally accepted accounting principles in
effect in the United States on the date hereof;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the
plural include the singular;
(5) provisions apply to successive events and transactions;
(6) "herein," "hereof," "hereunder" and other words of similar
import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision; and
(7) "include," "included" and "including" as used herein shall
be deemed in each case to be followed by the phrase "without
limitation."
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM OF SECURITIES.
The Securities of each Series and the certificate of
authentication thereon shall be in substantially the forms set forth in
Exhibit A or in such other forms as shall be specified in, or pursuant to,
the Authorizing Resolution and/or in the indenture supplemental hereto (if
any) relating to such Series,
<PAGE>
-10-
with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or the said
Authorizing Resolution and/or supplemental indenture (if any).
The definitive Securities of each Series shall be printed,
lithographed or engraved or produced by any combination of these methods on
steel engraved borders or may be produced in any other manner permitted by
the rules of any securities exchange on which the Securities may be listed,
or, if they shall not be listed on any securities exchange, in any other
manner consistent herewith, all as shall be determined by the officers
executing such Securities, as evidenced by their execution of such
Securities. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage. The Company shall approve the
form of the Securities and any notation, legend or endorsement on them.
The terms and provisions contained in the Securities, annexed
hereto as Exhibit A or such other forms as specified in the Authorizing
Resolution and/or supplemental indenture (if any) relating thereto, shall
constitute, and are hereby expressly made, a part of this Indenture.
SECTION 2.02. TITLE AND TERMS.
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. All
Securities issued hereunder shall be subordinate and junior in right of
payment, to the extent and in the manner set forth in Article 13, to all
Senior Indebtedness of the Company. The terms of each Series shall be as
provided in an Authorizing Resolution and/or supplemental indenture (if any)
or shall be determined in the manner specified therein. The terms to be
specified in respect of each Series in the Authorizing Resolution and/or
supplemental indenture (if any), or by such person and/or procedures as shall
be provided therein, shall include the following:
(1) the title of the Securities of such Series, which shall
distinguish such Series from all other Series;
(2) Whether the Securities will be convertible into Common
Stock and, if so, the terms and conditions upon
<PAGE>
-11-
which such conversion will be effected including the initial Conversion
Price and any adjustments thereto in addition to or different from those
set forth in Section 11, the conversion period and other provisions in
addition to or in lieu of those set forth herein;
(3) any limit upon the aggregate principal amount of the
Securities of such Series which may be authenticated and delivered
under this Indenture (except for Securities of such Series
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to
Section 2.07, 2.08, 2.11, 3.08, 10.05 or 12.02);
(4) the date or dates on which the principal of the Securities
of such Series is payable, and, if the Series shall be Extendible
Securities, the terms on which the Company or any other person shall
have the option to extend the Maturity of such Securities and the
rights, if any, of the Holders to require payment of the Securities;
(5) the rate or rates at which the Securities of such Series
shall bear interest, if any (whether floating or fixed), the
provisions, if any, for determining such interest rate or rates and
adjustments thereto, the date or dates from which such interest shall
accrue, the provisions, if any, for determining such date or dates,
the Interest Payment Dates therefor, the Regular Record Dates (if
different from those provided in the form of Security herein set
forth) for the determination of Holders of the Securities of such
Series to whom interest is payable and the basis upon which interest,
if any, shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(6) the place or places where the principal of and interest on
Securities of such Series shall be payable (if other than as provided
in Section 5.02), where Securities of such Series may be surrendered
for registration of transfer or exchange and where notices or demands
to or upon the Company in respect of Securities of such Series and
this Indenture may be served;
(7) the price or prices at which, the period or periods within
which and the terms and conditions upon which the Securities of such
Series may be redeemed, in
<PAGE>
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whole or in part, at the option of the Company, pursuant to a Sinking Fund
or otherwise;
(8) the obligation, if any, of the Company to redeem, purchase
or repay Securities of such Series, in whole or in part, pursuant to
a Sinking Fund or otherwise or at the option of a Holder thereof, and
the price or prices at which, the period or periods within which and
the terms and conditions upon which such redemption, purchase or
repayment shall be made;
(9) any deletions from, modifications of or additions to the
Events of Default provided for herein with respect to the Securities
of such Series, and any additions to the covenants or obligations
provided for herein of the Company to the Holders of the Securities
of such Series;
(10) if less than 100% of the principal amount of the
Securities of such Series is payable on acceleration under
Section 7.02 or in bankruptcy under Section 7.09 at any time, a
schedule of or the manner of computing the amounts which are so
payable from time to time;
(11) the form of the Securities of such Series (which may be,
but which need not be, consistent with the form set forth in
Exhibit A attached hereto), including whether the Securities of such
Series shall be issued in whole or in part in the form of one or more
Global Securities and, in such case, the Depository with respect to
such Global Security or Securities and the circumstances under which
any Global Security may be registered for transfer or exchange, or
authenticated and delivered, in the name of a Person other than such
Depository or its nominee, if other than as set forth in Section
2.07;
(12) if other than United States dollars, the currency(ies) in
which payment of the principal of or interest, if any, on the
Securities of such Series shall be payable;
(13) if the principal of or interest, if any, on the
Securities of such Series is to be payable, at the election of the
Company or a Holder thereof, in a currency or currencies other than
that in which the Securities are stated to be payable, the period or
periods within which,
<PAGE>
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and the terms and conditions upon which, such election may be made;
(14) if the amount of payments of principal of or interest, if
any, on such Securities of the Series may be determined with
reference to an index based on a currency or currencies other than
that in which the Securities are stated to be payable, the manner in
which such amounts shall be determined;
(15) whether and under what circumstances the Company will pay
any additional amounts on the Securities of such Series in respect of
any tax, assessment or governmental charge and, if so, whether the
Company will have the option to redeem the Securities of such Series
in lieu of making such payment;
(16) any provisions relating to the issuance of the Securities
of any Series as Original Issue Discount Securities (including,
without limitation, the issue price thereof, the rate or rates at
which such original issue discount shall accrue, if any, and the date
or dates from or to which, or period or periods during which, such
original issue discount shall accrue at such rate or rates);
(17) if other than denominations of $1,000 and integral
multiples thereof, the denominations in which Securities of any such
Series shall be issued; and
(18) any other terms of the Securities of such Series;
PROVIDED, that such other terms shall not be inconsistent with any
express terms of this Indenture or in conflict with any express terms
of any other Series of Securities which shall be issued and
outstanding.
All Securities of any one Series shall be substantially
identical in form except as to denomination and except as may be otherwise
provided in and pursuant to the Authorizing Resolutions and/or supplemental
indenture (if any) relating thereto.
All Securities of any one Series need not be issued at the same
time and may be issued from time to time, consistent with this Indenture,
if so provided by or pursuant to such Authorizing Resolution and/or
supplemental indenture (if any) relating thereto.
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Any such Authorizing Resolution with respect to the Securities of
any Series filed with the Trustee on or before the initial issuance of the
Securities of such Series shall be incorporated herein by reference with
respect to Securities of such Series and shall thereafter be deemed to be a
part of this Indenture for all purposes relating to the Securities of such
Series as if such Authorizing Resolution were set forth herein in full.
SECTION 2.03. EXECUTION AND AUTHENTICATION.
Two Officers or an Officer and the Secretary of the Company shall
sign the Securities for the Company by manual or facsimile signature. The
Company's seal shall be reproduced on the Securities and may be in facsimile
form.
If an Officer or a Secretary whose signature is on a Security no
longer holds that office at the time the Trustee authenticates the Security,
the Security shall be valid nevertheless.
A Security shall not be valid until the Trustee manually signs
the certificate of authentication on the Security. The signature shall be
conclusive evidence that the Security has been authenticated under this
Indenture.
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, together with a Company Order for the
authentication and delivery of such Securities. The Company Order may
provide that the Securities which are the subject thereof shall be
authenticated and delivered by the Trustee upon the telephonic, written or
other order of persons designated in the Company Order, and that such persons
are authorized to specify the terms and conditions of such Securities, to the
extent permitted by the Authorizing Resolution and/or supplemental indenture
(if any) relating thereto. The Trustee shall execute and deliver the
supplemental indenture (if any) relating to said Securities and the Trustee
shall authenticate and deliver said Securities as specified in such Company
Order; PROVIDED that, prior to authentication and delivery of the first
Securities of any Series, the Trustee shall have received:
(1) a copy of the Authorizing Resolution, with a copy of the
form of Security approved thereby attached
<PAGE>
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thereto, or a supplemental indenture in respect of the issuance of the
Series, executed on behalf of the Company;
(2) an Officers' Certificate to the effect that the Securities
of such Series comply or will comply with the requirements of this
Indenture and the said Authorizing Resolution and/or supplemental
indenture (if any);
(3) an Opinion of Counsel (a) to the effect that (i) the
Securities of such Series, the Authorizing Resolution and/or the
supplemental indenture (if any) relating thereto comply or will
comply with the requirements of this Indenture, and (ii) the
Securities of such Series, when authenticated and delivered by the
Trustee in accordance with the said Company Order, will constitute
valid and binding obligations of the Company enforceable in
accordance with their terms, subject to (A) bankruptcy and other laws
affecting creditors' rights generally as in effect from time to time,
(B) limitations of generally applicable equitable principles and
(C) other exceptions acceptable to the Trustee and its counsel; and
(b) relating to such other matters as may reasonably be requested by
the Trustee or its counsel; and
(4) if the Securities to be issued are Original Issue Discount
Securities, an Officers' Certificate setting forth the Yield to
Maturity for the Securities or other information sufficient to
compute amounts due on acceleration, or specifying the manner in
which such amounts are to be determined, provided that such Yield to
Maturity and other facts are not specified in the form of the
Securities.
Subject to Section 8.01 hereof, the Trustee shall be fully
protected in relying upon the documents delivered to it as provided above in
connection with the issuance of any Series of Securities.
The Trustee shall have the right to decline to authenticate and
deliver any Securities under this Section 2.03 if the Trustee, being advised
by counsel, determines that such action may not lawfully be taken or if the
Trustee in good faith by a committee of its Trust Officers shall determine
that such action would expose the Trustee to liability to Holders of
previously issued and outstanding Securities.
<PAGE>
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Each Security shall be dated the date of its authentication
unless otherwise specified in the Authorizing Resolution and/or
supplemental indenture relating thereto.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate Securities. An authenticating
agent may authenticate Securities whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights
as an Agent to deal with the Company or an Affiliate of the Company.
The Securities of each Series shall be issuable only in
registered form without coupons and only in denominations of $1,000 and any
integral multiple thereof, or in such other currencies or denominations as
may be specified in, or pursuant to, the Authorizing Resolution and/or
supplemental indenture (if any) relating to the Series.
If Securities of any Series are to be issued in the form of one
or more Global Securities, then the Company shall deliver such Global
Security or Securities executed by the Company to the Trustee, together with
a Company Order for the authentication and delivery of such Global Security
or Securities, and the Trustee shall, in accordance with this Section 2.03
and such Company Order, authenticate and deliver such Global Security or
Securities that (i) shall represent and shall be denominated in an amount
equal to the aggregate principal amount of all of the Securities of such
Series to be issued in the form of such Global Security or Securities and not
yet cancelled, (ii) shall be registered in the name of the Depository for
such Global Security or Securities or the nominee of such Depository, (iii)
shall be delivered by the Trustee to such Depository or pursuant to such
Depository's instructions and (iv) shall bear a legend substantially to the
following effect: "Unless and until this Security is exchanged in whole or
in part for Securities in certificated form, this Security may not be
transferred except as a whole by the Depository to a nominee of the
Depository or by a nominee of the Depository to the Depository or another
nominee of the Depository or by the Depository or its nominee to a successor
Depository or its nominee."
Each Depository designated must, at the time of its designation
and at all times while it serves as Depository, be a clearing agency
registered under the Securities Exchange Act
<PAGE>
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of 1934, as amended, and any other applicable statute or regulation.
SECTION 2.04. REGISTRAR, PAYING AGENT AND CONVERSION AGENT.
The Company shall cause to be kept a register (the "Security
Register") at an office or agency where Securities may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency
where Securities may be presented for payment ("Paying Agent"), and, if
applicable, an office or agency where Securities may be presented for
conversion ("Conversion Agent"). The Company may have one or more
co-Registrars and one or more additional paying agents. The term "Paying
Agent" includes any additional paying agent.
The Company shall enter into an appropriate agency agreement
with any Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall give prompt written notice to the Trustee of the name and
address of any such Agent and the Trustee shall have the right to inspect
the Security Register at all reasonable times and to obtain copies thereof.
If the Registrar shall not be the Trustee in respect of any Series, the
Company shall promptly notify the Registrar as to the amounts and terms of
each Security of such Series which shall be authenticated and delivered
hereunder, and as to the names in which such Securities shall be
registered. If the Company fails to maintain a Registrar, Paying Agent or
Conversion Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.07.
The Company initially appoints the Trustee as Registrar, Paying
Agent and Conversion Agent.
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST.
Each Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of or interest on the Securities (whether such money
has been paid to it by the Company or any other obligor on the Securities),
and shall notify the Trustee of any default by the Company (or any other
obligor on the Securities) in making any such payment. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate the money and hold it
as a separate trust fund. The Company at any time
<PAGE>
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may require a Paying Agent to pay all money held by it to the Trustee
and account for any funds disbursed and the Trustee may at any time
during the continuance of any payment default, upon written request to
a Paying Agent, require such Paying Agent to pay all money held by it
to the Trustee and to account for any funds disbursed. Upon doing so
the Paying Agent shall have no further liability for the money.
SECTION 2.06. SECURITYHOLDER LISTS.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list furnished to it of the names
and addresses of Securityholders. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee ten days before each Interest Payment
Date and at such other times as the Trustee may request in writing a list
in such form and as of such date as the Trustee may reasonably require of
the names and addresses of Holders of Securities of any Series and the
Company shall otherwise comply with Section 312(a) of the TIA.
The Trustee shall be entitled to rely upon a certificate of the
Registrar, the Company or such other Paying Agent, as the case may be, as
to the names and addresses of the Holders of Securities of any Series and
the principal amounts and serial numbers of such Securities.
SECTION 2.07. TRANSFER AND EXCHANGE.
When Securities are presented to the Registrar or a co-Registrar
with a request to register the transfer or to exchange them for an equal
principal amount of Securities of the same Series and Stated Maturity of
other authorized denominations, the Registrar shall register the transfer or
make the exchange as requested if its requirements for such transactions are
met. To permit registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Securities at the Registrar's
request. No service charge shall be made to any Holder for any registration
of transfer or exchange, but the Company or the Trustee may require payment
of a sum sufficient to cover any transfer tax or similar governmental charge
payable in connection therewith (other than any such transfer taxes or
similar governmental charge payable upon exchanges pursuant to Section 2.11,
3.08 or 10.05 in which case such transfer taxes or similar governmental
charges shall be paid by the Company).
<PAGE>
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The Company shall not be required (i) to issue, register the
transfer of or exchange any Security of any Series during a period beginning
at the opening of the day which is 15 Business Days before the day of the
mailing of a notice of redemption of Securities of such Series selected for
redemption under Section 3.04 or 4.01 and ending at the close of business on
the day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except, in the case
of any Security to be redeemed in part, the portion thereof not to be
redeemed.
Notwithstanding any other provision of this Section 2.07, unless
and until it is exchanged in whole or in part for Securities in definitive
registered form, a Global Security representing all or part of the Securities
of a Series may not be transferred except as a whole by the Depository for
such Series to a nominee of such Depository or by a nominee of such
Depository to such Depository or another nominee of such Depository or by
such Depository or any such nominee to a successor Depository for such Series
or a nominee of such successor Depository.
If at any time the Depository for any Securities of a Series
represented by one or more Global Securities notifies the Company that it is
unwilling or unable to continue as Depository for such Series or if at any
time the Depository for such Series shall no longer be eligible under Section
2.03, the Company shall appoint a successor Depository with respect to such
Series. If a successor Depository for such Series is not appointed by the
Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, the Company's election that the Securities be
represented by one or more Global Securities pursuant to Section 2.02 shall
no longer be effective and the Company shall deliver Securities of such
Series executed by the Company to the Trustee, together with a Company Order
for the authentication and delivery of such Securities, and the Trustee
shall, in accordance with Section 2.03 and such Company Order, authenticate
and deliver Securities of such Series, in any authorized denominations, in an
aggregate principal amount equal to the principal amount of the Global
Security or Securities representing such Series in exchange for such Global
Security or Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any Series issued in the form of one or
more Global Securities shall no longer be represented by a Global Security
or Securities. In such event the
<PAGE>
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Company shall deliver Securities of such Series executed by the Company to
the Trustee, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee shall, in accordance with
Section 2.03 and such Company Order, authenticate and deliver Securities of
such Series, in any authorized denominations, in an aggregate principal
amount equal to the principal amount of the Global Security or Securities
representing such Series, in exchange for such Global Security or Securities.
If specified by the Company in the Authorizing Resolution and/or
supplemental indenture (if any) relating to the Securities of a Series
represented by a Global Security, the Depository for such Series may
surrender such Global Security in exchange in whole or in part for Securities
of the same Series on such terms as are acceptable to the Company and the
Depository. Thereupon, the Company shall deliver Securities of such Series
executed by the Company to the Trustee, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee shall, in
accordance with Section 2.03 and such Company Order, authenticate and
deliver, without charge,
(1) to the person specified by such Depository, a new Security
or Securities of the same Series, in any authorized denominations as
requested by such person, in an aggregate principal amount equal to
and in exchange for such person's beneficial interest in the Global
Security; and
(2) to such Depository a new Global Security in a denomination
equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of
Securities authenticated and delivered pursuant to clause (1) above.
Upon the exchange of a Global Security for the Securities of a
Series represented thereby, in authorized denominations, such Global
Security shall be cancelled by the Trustee or an Agent of the Company or
the Trustee. Securities of a Series issued in exchange for a Global
Security pursuant to this Section 2.07 shall be registered in such names
and in such authorized denominations as the Depository for such Global
Security, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee or an Agent of the Company or the
Trustee. The Trustee or such Agent shall deliver at its office such
Securities to or as directed
<PAGE>
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by the persons in whose names such Securities are so registered.
SECTION 2.08. REPLACEMENT SECURITIES.
If a mutilated Security is surrendered to the Trustee or if the
Holder of a Security claims that the Security has been lost, destroyed or
wrongfully taken, the Company shall issue and the Trustee shall authenticate
a replacement Security of like tenor, Series and principal amount, bearing a
number not assigned to any Security of the same Series then outstanding, if
the Trustee's requirements are met. If required by the Trustee or the
Company, an indemnity bond must be sufficient in the judgment of the Trustee
to protect the Company, the Trustee or any Agent from any loss which any of
them may suffer if a Security is replaced. The Company may charge such
Holder for its expenses in replacing a Security.
Every replacement Security is an additional obligations of the
Company.
SECTION 2.09. OUTSTANDING SECURITIES.
Securities, or Securities of any particular Series, outstanding
at any time are all such Securities that have been authenticated and
delivered by the Trustee except for those cancelled by it, those delivered to
it for cancellation and those described in this Section as not outstanding.
A Security does not cease to be outstanding because the Company or one of its
Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.08, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Trustee or Paying Agent (other than the Company or a
Subsidiary) holds on the Maturity Date or Redemption Date money sufficient to
pay Securities payable on such date, then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue;
PROVIDED that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provisions
therefor satisfactory to the Trustee have been made.
<PAGE>
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If a Security is converted into Common Stock pursuant to
Article 12 hereof, then such Security shall cease to be outstanding.
SECTION 2.10. TREASURY SECURITIES.
In determining whether the Holders of the required principal
amount of Securities of any Series have concurred in any direction, waiver or
consent (a) the principal amount of an Original Issue Discount Security, if
any, of such Series that shall be deemed to be outstanding for such purposes
shall be the amount that would be due and payable as of the date of
determination upon a declaration of acceleration thereof pursuant to Section
7.02 and (b) Securities of such Series owned by the Company or an Affiliate
of the Company shall be disregarded, except that for the purposes of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Securities of such Series which the
Trustee actually knows are so owned shall be so disregarded. Upon the
request of the Trustee, the Company shall furnish to the Trustee an Officers'
Certificate identifying all Securities of such Series, if any, known by the
Company to be owned by it or any of its Affiliates.
SECTION 2.11. TEMPORARY SECURITIES.
Until definitive Securities of any Series are ready for delivery,
the Company may prepare and execute and, upon compliance with the
requirements of Section 2.03, the Trustee shall authenticate temporary
Securities of such Series. Temporary Securities of any Series shall be
substantially in the form of definitive Securities of such Series but may
have variations that the Company considers appropriate for temporary
Securities. In the case of Securities of any Series, such temporary
Securities may be in global form. Except in the case of temporary Global
Securities (which shall be exchanged as otherwise provided herein or as
otherwise provided in or pursuant to the Authorizing Resolution and/or
supplemental indenture (if any) relating thereto, without unreasonable delay,
the Company shall prepare and the Trustee shall authenticate definitive
Securities for such Series in exchange for temporary Securities of such
Series in an exchange pursuant to Section 2.07.
SECTION 2.12. CANCELLATION.
The Company at any time may deliver Securities to the Trustee
for cancellation. The Registrar and the Paying Agent
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shall forward to the Trustee any Securities surrendered to them for transfer,
exchange or payment. The Trustee and no one else shall cancel all Securities
surrendered for transfer, exchange, payment or cancellation or for credit
against any Sinking Fund Payment in respect of such Series pursuant to
Section 4.02. The Company may not issue new Securities to replace Securities
it has paid or delivered to the Trustee for cancellation.
SECTION 2.13. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the
Securities of any Series, it shall pay the defaulted interest, plus any
interest payable on the defaulted interest, to the persons who are Holders of
such Securities on a subsequent special record date ("Special Record Date")
and such term, as used in this Section 2.13 with respect to the payment of
any defaulted interest, shall mean the fifteenth day next preceding the date
fixed by the Company for the payment of defaulted interest, whether or not
such day is a Business Day. At least 15 days before the Special Record Date,
the Company shall mail to each holder of such Securities a notice that states
the Special Record Date, the payment date and the amount of defaulted
interest to be paid.
SECTION 2.14. PERSONS DEEMED OWNERS.
The Company, the Trustee and any agent may treat the persons in
whose name any Security is registered as the owners of such Security for the
purpose of receiving payment of principal of and (subject to Section 2.13)
interest on such Security and for all other purposes whatsoever, whether or
not such Security shall have matured, and neither the Company, the Trustee
nor any Agent shall be affected by any notice to the contrary.
ARTICLE 3
REDEMPTION
SECTION 3.01. RIGHT OF REDEMPTION.
Redeemable Securities may be redeemed otherwise than through
the operation of the Sinking Fund provided for in Article 4 at the election
of the Company at the times, on the conditions and at the Redemption Prices
specified therein, in (or pursuant to) the Authorizing Resolution relating
thereto or in the supplemental indenture (if any) executed in connection
<PAGE>
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with the issuance of such Securities to the extent provided therein, any
Redemption Price to be accompanied by accrued interest to the Redemption
Date.
SECTION 3.02. APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision referred to in
Section 3.01, shall be made in accordance with such provision and this
Article.
SECTION 3.03. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The Election of the Company to redeem any Securities of any
Series shall be evidenced by a Board Resolution or set forth in an Officers'
Certificate which states that such election has been duly authorized by all
requisite corporate action on the part of the Company. In case of any
redemption at the election of the Company of less than all of the Securities
of such Series the Company shall, at least 60 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory to
the Trustee), notify the Trustee of such Redemption Date and of the principal
amount of Securities of the Series or the several Series, as the case may be,
to be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 3.04. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any Series are to be redeemed,
the particular Securities of such Series to be redeemed shall be selected not
more than 90 days prior to the Redemption Date by the Trustee, from the
outstanding Securities of such Series not previously called for redemption,
in compliance with the requirements of the principal national securities
exchange, if any, on which such Securities are listed or, if the Securities
are not listed on a national securities exchange, on a PRO RATA basis or by
lot, as the Trustee deems appropriate in its sole discretion. The Trustee may
select for redemption portions (equal to the minimum authorized denomination
of the Series or any integral multiple thereof) of the principal amount of
such Securities of a denomination larger
<PAGE>
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than such minimum denomination. If the Company shall so specify, Securities
held by the Company or any of its Subsidiaries or Affiliates shall not be
included in the Securities selected for redemption.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be
redeemed.
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 Security which has
been or is to be redeemed.
If any Security selected for partial redemption is surrendered
for conversion after such selection, the converted portion of such Security
shall be deemed (so far as may be) to be the portion selected for redemption.
Upon any redemption of less than all the Securities of a Series, for
purposes of selection for redemption the Company and the Trustee may treat
outstanding Securities surrendered for conversion during the period of 15
days next preceding the mailing of a notice of redemption, and need not treat
as outstanding any Security authenticated and delivered during such period in
exchange for the unconverted portion of any Security converted in part during
such period.
SECTION 3.05. NOTICE OF REDEMPTION.
Notice of redemption shall be given by first class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all outstanding Securities of the Series are
to be redeemed, the identification (and, in the
<PAGE>
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case of partial redemption, the principal amount) 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, and that interest
thereon shall cease to accrue on and after said date;
(5) that the redemption is for a Sinking Fund, if such is the
case;
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price; and
(7) if applicable, the Conversion Price then in effect and the
date on which the right to convert such Securities or the portions
thereof to be redeemed will expire.
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 of and at the expense of the Company.
SECTION 3.06. DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its
own Paying Agent, segregate and hold in trust as provided in Section 2.05) an
amount of money sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) any accrued interest on,
all the Securities or portions thereof which are to be redeemed on that date
(other than Securities or portions thereof surrendered for conversion into
Common Stock). If any Security called for redemption is converted into
Common Stock pursuant hereto, any monies deposited with the Trustee or a
Paying Agent or so segregated and held in trust for the redemption of such
Security shall be paid to the Company upon the Company's request, or, if then
held by the Company, shall be discharged from such trust.
SECTION 3.07. SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date,
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become due and payable at the Redemption Price thereof 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 and
from and after such date (unless an earlier date shall be specified in the
Authorizing Resolution or supplemental indenture (if any) pursuant to which
the terms of the Securities of such Series were established) such Securities
shall cease to be convertible into Common Stock. Upon surrender of any such
Security for redemption in accordance with said notice such Security shall be
paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; PROVIDED, HOWEVER, that installments of interest
whose Stated Maturity is on or prior to the Redemption Date shall be payable
to the Holders of such Securities registered as such on the relevant Regular
or Special Record Date according to their terms and the provisions of such
Security and Section 2.13.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the Redemption Date at the rate borne by
the Security or, in the case of Original Issue Discount Securities, at a
rate equal to the Yield to Maturity thereof, and such Security shall remain
convertible into Common Stock until the Redemption Price of such Security
(together with such interest thereon) shall have been paid or duly provided
for.
SECTION 3.08. SECURITIES REDEEMED IN PART.
Any Security which is to be redeemed only in part shall be
surrendered at the office or agency of the Company maintained for that
purpose pursuant to Section 5.02 (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, 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.
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ARTICLE 4
SINKING FUND
SECTION 4.01. SINKING FUND PAYMENTS.
As and for a Sinking Fund for the retirement of Sinking Fund
Securities, the Company will, until all such Securities are paid or payment
thereof is duly provided for, deposit in accordance with Section 3.06, at
such times and subject to such terms and conditions as shall be specified in
the provisions of such Securities and the Authorizing Resolution and/or
supplemental indenture (if any) relating thereto, such amounts in cash or
such other Required Currency as shall be required or permitted under such
provisions in order to redeem Securities on the specified Redemption Dates at
a Redemption Price equal to their principal amounts, less in each such case
the amount of any credit against such payment received by the Company under
Section 4.02. Each such Sinking Fund payment shall be applied to the
redemption of Securities on the specified Redemption Date as herein provided.
SECTION 4.02. SATISFACTION OF SINKING FUND
PAYMENTS WITH SECURITIES.
The Company (1) may deliver Securities of the same Series (other
than any Securities of such Series previously called for redemption pursuant
to the Sinking Fund or theretofore applied as a credit against a Sinking Fund
payment), (2) may apply as a credit Securities of the same Series redeemed at
the election of the Company pursuant to Section 3.01 or through the operation
of the Sinking Fund in any period in excess of the minimum amount required
for such period under Section 4.01 and not theretofore applied as a credit
against a Sinking Fund payment, or (3) may apply as credit Securities of the
same Series (not previously so credited) converted into Common Stock and so
delivered to the Trustee for cancellation, in each case in satisfaction of
all or any part of any Sinking Fund payment required to be made pursuant to
Section 4.01. Each such Security so delivered or applied shall be credited
for such purpose by the Trustee at a Redemption Price equal to its principal
amount or, in the case of an Original Issue Discount Security, its then
accreted value, and the required amount of such Sinking Fund payment in
respect of such Series shall be reduced accordingly.
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SECTION 4.03. REDEMPTION OF SECURITIES FOR
SINKING FUND.
If in any year the Company shall elect to redeem in excess of the
minimum principal amount of Securities of any Series required to be redeemed
pursuant to Section 4.01 or to satisfy all or any part of any Sinking Fund
payment by delivering or crediting Securities of the same Series pursuant to
Section 4.02, then at least 45 days prior to the date on which the Sinking
Fund payment in question shall be due, the Company shall deliver to the
Trustee an Officers' Certificate specifying the amount of the Sinking Fund
payment and the portions thereof which are to be satisfied by payment of cash
or such other Required Currency, by delivery of Securities of such Series or
by crediting Securities of such Series (including Securities of such Series
previously converted into Common Stock), and, at least 45 days prior to the
Sinking Fund payment date (or such shorter period as shall be approved by the
Trustee), will also deliver to the Trustee the Securities of such Series to
be so delivered. Such Officers' Certificate shall also state that the
Securities forming the basis of any such credit do not include any Securities
which have been redeemed through the operation of the Sinking Fund in the
minimum amount required under Section 4.01 or previously credited against any
Sinking Fund payment. The Trustee shall, upon the receipt of such Officers'
Certificate (or, if it shall not have received such an Officers' Certificate
at least 45 days prior to the Sinking Fund payment date, then following such
45th day), select the Securities of such Series to be redeemed upon the next
Sinking Fund payment date, in the manner specified in Section 3.04, and cause
notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 3.05. Such notice
having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 3.06, 3.07 and 3.08.
ARTICLE 5
COVENANTS
SECTION 5.01. PAYMENT OF SECURITIES.
The Company shall pay the principal of and interest on the
Securities of each Series on the dates and in the manner provided in the
Securities and in this Indenture. An installment of principal or interest
shall be considered paid on the date due if the Trustee or Paying Agent
(other than the Company
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or a Subsidiary) holds on that date money designated for and sufficient to
pay the installment.
The Company shall pay interest on overdue principal at the
respective rates borne by such Securities or, in the case of Original Issue
Discount Securities, at rates equal to the respective Yields to Maturity
thereof; it shall pay interest on overdue installments of interest at the
respective rates borne by such Securities to the extent lawful.
SECTION 5.02. MAINTENANCE OF OFFICE OR AGENCY.
Except as otherwise provided in the Authorizing Resolutions
and/or supplemental indenture (if any) relating to any Series, the Company
will maintain in The City of New York, an office or agency where Securities
may be surrendered for registration of transfer or exchange, for presentation
for payment or, if applicable, for conversion, and where notices and demands
to or upon the Company in respect to the Securities 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.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of any Series or a particular
Series may be presented or surrendered for any or all such purposes and may
from time to time rescind such designations; PROVIDED, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York, 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.
The Company hereby initially designates the Trustee in The City
of New York, as an agency of the Company in accordance with Section 2.04.
SECTION 5.03. CORPORATE EXISTENCE.
Subject to Article 6, the Company will do or cause to be done
all things necessary to preserve and keep in full force and effect its
corporate existence and the rights (charter and
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statutory) and material franchises of the Company; PROVIDED, HOWEVER, that
the Company shall not be required to preserve any such right or franchise if
the Board of Directors or management of the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and its Subsidiaries, taken as a whole, and if the loss thereof
is not, and will not be, adverse in any material respect to the Holders.
SECTION 5.04. COMPLIANCE CERTIFICATE.
The Company shall deliver to the Trustee within 90 days after the
end of each fiscal quarter of the Company an Officers' Certificate stating
whether or not the signers know of the existence of any Default or Event of
Default by the Company and whether all of the conditions and covenants of the
Company are being complied with regardless of any period of grace or
requirement of notice provided under this Indenture. If they do know of such
a Default or Event of Default, the certificate shall describe the Default or
Event of Default, as the case may be, and its status. The first Officers'
Certificate to be delivered pursuant to this Section 5.04 shall be for the
fiscal quarter ending immediately after the Original Issue Date.
SECTION 5.05. SEC REPORTS
(a) The Company shall file with the Trustee within 15 days
after it files them with the SEC 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 SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended. The Company also shall
comply with the other provisions of TIA Section 314(a).
(b) So long as the Securities of any Series remain outstanding,
the Company shall cause its annual report to stockholders and any quarterly
or other financial reports furnished by it to stockholders to be mailed to
the Holders of Securities outstanding at the their addresses appearing in the
Security Register.
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SECTION 5.06. WAIVER OF STAY, EXTENSION
OR USURY LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury law or other law, which would prohibit or forgive the Company from
paying all or any portion of the principal of and/or interest on the
Securities of any Series as contemplated herein, whenever enacted, now or at
any time hereafter in force, or which may affect the covenants or the
performance of this Indenture, and (to the extent that it may lawfully do so)
the Company hereby expressly waives all benefit or advantage of any such law,
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee but will suffer and permit the execution
of every such power as though no law had been enacted.
ARTICLE 6
SUCCESSOR CORPORATION
SECTION 6.01. WHEN COMPANY MAY MERGE, ETC.
The Company shall not consolidate with or merge with or into any
other corporation or transfer all or substantially all of its properties and
assets as an entirety to any person, unless:
(1) either the Company shall be the continuing person, or the
person (if other than the Company) formed by such consolidation or
into which the Company is merged or to which all or substantially all
of the properties and assets of the Company as an entirety are
transferred shall be a corporation organized and existing under the
laws of the United States or any State thereof or the District of
Columbia and shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory
to the Trustee, all the obligations of the Company under the
Securities of each Series and this Indenture and shall expressly
provide for the conversion rights, if any, in accordance with this
Indenture;
(2) immediately before and immediately after giving effect to
such transaction, no Event of Default and no Default shall have
occurred 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 or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transactions have been complied
with.
Notwithstanding the foregoing, any Subsidiary may consolidate
with, merge with or into or transfer all or part of its properties and assets
to the Company or any other Subsidiary or Subsidiaries.
SECTION 6.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any transfer of all or
substantially all of the properties and assets of the Company in accordance
with Section 6.01, the successor corporation formed by such consolidation or
into which the Company is merged or to which such transfer is made shall
succeed to, and be substituted for, and may exercise every right and power
of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein.
ARTICLE 7
DEFAULT AND REMEDIES
SECTION 7.01. EVENTS OF DEFAULT.
An "Event of Default" occurs if, with respect to any Series of
Securities, unless it is either inapplicable to a particular Series or it is
specifically deleted or modified in the Authorizing Resolution and/or
supplemental indenture (if any) in respect of such Series, and upon any other
events which may be specified as Events of Default in the Authorizing
Resolution and/or supplemental indenture (if any) in respect of such Series:
(1) the Company defaults in the payment of interest on any
Securities of such Series when the same becomes due and payable and
the default continues for a period of 30 days;
(2) the Company defaults in the payment of the principal of
any Securities of such Series when the same becomes due and payable
at its Maturity or otherwise or
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defaults in the deposit of any Sinking Fund installment in respect of such
Series, when and as payable by the terms of Section 4.01 hereof;
(3) the Company fails to comply with any of its other
agreements contained in the Securities of such Series or this
Indenture (other than an agreement relating exclusively to another
Series of Securities) and the default continues for the period and
after the notice specified below;
(4) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case or proceeding,
(B) consents to the entry of an order for relief against
it in an involuntary case or proceeding,
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(5) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary
case or proceeding,
(B) appoints a Custodian of the Company for all or
substantially all of its properties, or
(C) orders the liquidation of the Company,
and in each case the order or decree remains unstayed and in effect
for 60 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar Federal or state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
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A Default under clause (3) is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in principal
amount of the outstanding Securities of such Series notify the Company and
the Trustee, of the Default and the Company does not cure the Default within
60 days after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a "Notice of
Default." When a Default is cured, it ceases. Such notice shall be given by
the Trustee if so requested by the Holders of at least 25% in principal
amount of the Securities of such Series then outstanding.
Subject to the provisions of Sections 8.01 and 8.02, the Trustee
shall not be charged with knowledge of any Event of Default unless written
notice thereof shall have been given to a Trust Officer at the corporate
trust office of the Trustee by the Company, the Paying Agent, any Holder or
an agent of any Holder.
SECTION 7.02. ACCELERATION.
If an Event of Default (other than an Event of Default specified
in Section 7.01(4) or (5)) with respect to Securities of any Series occurs
and is continuing, the Trustee may, by notice to the Company, or the Holders
of at least 25% in principal amount of such Securities of such Series then
outstanding may, by notice to the Company and the Trustee, and the Trustee
shall, upon the request of such Holders, declare all unpaid principal (or, if
such Securities are Original Issue Discount Securities, such portion of the
principal amount as may then be payable on acceleration as provided in the
terms thereof) and accrued interest to the date of acceleration on all such
Securities of such Series then outstanding (if not then due and payable) to
be due and payable and, upon any such declaration, the same shall become and
be immediately due and payable. If an Event of Default specified in Section
7.01(4) or (5) occurs, all unpaid principal (or, if any Securities are
Original Issue Discount Securities, such portion of the principal amount as
may then be payable on acceleration as provided in the terms thereof) and
accrued interest on all Securities of every Series then outstanding shall
IPSO FACTO become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Securityholder. Upon payment
of such principal amount and interest, all of the Company's obligations under
such Securities of such Series and this Indenture with respect to such
Securities of such Series, other than obligations under Section 8.07, shall
terminate.
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The Holders of a majority in principal amount of the Securities of such
Series then outstanding by notice to the Trustee may rescind an acceleration
and its consequences if (i) all existing Events of Default, other than the
non-payment of the principal of the Securities of such Series which has
become due solely by such declaration of acceleration, have been cured or
waived, (ii) to the extent the payment of such interest is lawful, interest
on overdue installments of interest and overdue principal, which has become
due otherwise than by such declaration of acceleration, has been paid, (iii)
the rescission would not conflict with any judgment or decree of a court of
competent jurisdiction and (iv) all payments due to the Trustee and any
predecessor Trustee under Section 8.07 have been made. Anything herein
contained to the contrary notwithstanding, in the event of any acceleration
pursuant to this Section 6.02, the Company shall not be obligated to pay any
premium in connection with any repayment arising from an Event of Default.
SECTION 7.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of or interest on the Securities of the Series as to
which the Event of Default shall have occurred or to enforce the performance
of any provision of such Securities or the Indenture.
The Trustee may maintain a proceeding even if it does not possess
any of the Securities of the Series as to which the Event of Default shall
have occurred or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Securityholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. No remedy
is exclusive of any other remedy. All available remedies are cumulative to
the extent permitted by law.
SECTION 7.04. WAIVER OF PAST DEFAULTS.
Subject to Sections 7.07 and 10.02, the Holders of a majority in
principal amount of the outstanding Securities of a Series by written notice
to the Trustee may waive an existing Default or Event of Default and its
consequences, except a Default in the payment of principal of or interest on
any such Security as specified in clauses (1) and (2) of Section 7.01.
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When a Default or Event of Default is waived, it is cured and ceases.
SECTION 7.05. CONTROL BY MAJORITY.
The Holders of a majority in principal amount of the outstanding
Securities of a Series (or, if more than one Series is affected, of all such
Series voting as a single class) may 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 it. However, the Trustee may
refuse to follow any direction that conflicts with any law or this Indenture
that the Trustee determines may be unduly prejudicial to the rights of
another Securityholder, or that may involve the Trustee in personal
liability; PROVIDED that the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction.
SECTION 7.06. LIMITATION ON SUITS.
A Securityholder may not pursue any remedy with respect to this
Indenture or the Securities of the applicable Series unless:
(1) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(2) the Holders of at least 25% in principal amount of the
outstanding Securities of the Series in respect of which the Event of
Default has occurred make a written request to the Trustee to pursue
a remedy;
(3) such Holder or Holders offer to the Trustee indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(5) during such 60-day period the Holders of a majority in
principal amount of the outstanding Securities of such Series do not
give the Trustee a direction which, in the opinion of the Trustee, is
inconsistent with the request.
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A Holder of Securities of any Series may not use this Indenture
to prejudice the rights of any other Holders of Securities of that Series or
to obtain a preference or priority over any other Holders of Securities of
that Series.
SECTION 7.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, but
subject to Article 13, the right of any Holder to receive payment of
principal of and interest on the Security, on or after the respective due
dates expressed in such Security, or to bring suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or
affected without the consent of such Holder.
SECTION 7.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default in payment of interest or principal
specified in Section 7.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against
the Company or any other obligor on the Securities of the Series in respect
of which the Event of Default has occurred for the whole amount of principal
and accrued interest remaining unpaid, together with interest overdue on
principal or, in the case of Original Issue Discount Securities, the then
accreted value, and to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at the rate per
annum borne by such Securities or, in the case of Original Issue Discount
Securities, at a rate equal to the Yield to Maturity thereof, and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
SECTION 7.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee may file such proofs of claim and 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 the
Securityholders allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Securities), its creditors or its property
and shall be entitled and empowered to collect and receive any monies or
other property payable or deliverable on any such claims and to distribute
the same, and any Custodian
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in any such judicial proceedings is hereby authorized by each Securityholder
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 Securityholders, to
pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 8.07. Nothing herein
contained shall be deemed to authorize the Trustee to authorize or consent to
or accept or adopt on behalf of any Securityholder any plan of
reorganization, arrangement, adjustment or composition affecting the
Securities of any Series or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Securityholder in any such
proceeding.
SECTION 7.10. PRIORITIES.
If the Trustee collects any money or property pursuant to this
Article 7 with respect to Securities of a Series, it shall pay out the money
or property in the following order:
First: to the Trustee for amounts due under Section 8.07;
Second: to Holders for amounts due and unpaid on the
Securities of such Series in respect of which monies have been
collected for principal and interest, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a
record date and payment date for any payment to Securityholders pursuant to
this Section 7.10.
SECTION 7.11. UNDERTAKING FOR COSTS.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as Trustee, a court in its discretion may require the filing
by any party litigant in the suit of an undertaking to pay the costs of the
suit, and the court in its discretion may assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the
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claims or defenses made by the party litigant. This Section 7.11 does not
apply to a suit by the Trustee, a suit by a Holder pursuant to Section 7.07,
or a suit by any Holder or a group of Holders of more than 10% in principal
amount of the outstanding Securities of all Series (or, if the matter in
issue does not relate to all Series of Securities, then the Holders of 10% in
principal amount of the outstanding Securities of all Series to which such
issue relates) (treated as a single class).
ARTICLE 8
TRUSTEE
SECTION 8.01. DUTIES OF TRUSTEE.
(a) The Trustee, except during the continuance of an Event of
Default known to it pursuant to Section 7.01, undertakes to perform such
duties and only such duties as are specifically set forth in this Indenture.
If an Event of Default known to the Trustee pursuant to Section 7.01 has
occurred and is continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default known
to the Trustee pursuant to Section 7.01:
(1) the Trustee need perform only those duties as are
specifically set forth in this Indenture and no others and no implied
covenants or obligations shall be read into this Indenture against
the Trustee;
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture, however, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to
the requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
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(1) this paragraph does not limit the effect of paragraphs (a)
and (b) of this Section 8.01;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 7.05.
(d) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder or in the exercise of any of
its rights or powers if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability
is not reasonably assured to it.
(e) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
8.01.
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company in writing.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
SECTION 8.02. RIGHTS OF TRUSTEE.
Subject to Section 8.01:
(a) the Trustee may rely on any document believed by it to be
genuine and to have been signed or presented by the proper person;
the Trustee need not investigate any fact or matter stated in the
document;
(b) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an Opinion of Counsel, which
shall conform to Section 11.05; the Trustee shall not be liable for
any action it takes or omits to take in good faith in reliance on
such certificate or opinion;
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(c) the Trustee may act through its attorneys and agents and
shall not be responsible for the misconduct or negligence of any
agent appointed with due care;
(d) the Trustee shall not be liable for any action it takes
or omits to take in good faith which it reasonably believes to be
authorized or within its rights or powers;
(e) the Trustee may consult with counsel and the advice or
opinion of such counsel as to matters of law shall be full and
complete authorization and protection in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance
with the advice or opinion of such counsel; and
(f) 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 the Holders, including, without limitation, the
duties, rights and powers specified in Section 7.02 hereof, unless
such Holders have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred
by the Trustee in compliance with such request or action.
SECTION 8.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Securities and may otherwise deal with the Company or
its Affiliates with the same rights it would have if it were not Trustee.
Any Agent may do the same with like rights. However, the Trustee is subject
to Sections 8.10 and 8.11.
SECTION 8.04. TRUSTEE'S DISCLAIMER.
The Trustee makes no representation as to the validity or
adequacy of this Indenture or the Securities of any Series, it shall not be
accountable for the recitals contained in this Indenture or for the Company's
use of the proceeds from the Securities of any Series, and it shall not be
responsible for any statement in the Securities of any Series, or in any
prospectus used to sell the Securities of any Series, other than its
certificate of authentication.
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SECTION 8.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing with
respect of any Series of Securities, and if it is actually known to the
Trustee pursuant to Section 7.01 hereof, the Trustee shall mail to each
Holder of the Securities of such Series notice of the Default or Event of
Default within 75 days after it occurs. Except in the case of a Default or
Event of Default in payment of principal of or interest on any Security or in
the payment of any Sinking Fund installment, the Trustee may withhold such
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interest of Securityholders.
SECTION 8.06. REPORTS BY TRUSTEE TO HOLDERS.
The Trustee shall transmit to the Holder such reports concerning,
among other things, the Trustee and its action under this Indenture as may be
required pursuant to the TIA at the time and in compliance with TIA Section
313(a). The Trustee also shall comply with TIA Sections 313(b)(2) and 313(c).
A copy of each such report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock exchange, if any,
on which the Securities of any Series are listed.
The Company shall notify the Trustee if the Securities of any
Series become listed on any stock exchange.
SECTION 8.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed upon in writing by the Company and the
Trustee. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse
the Trustee upon request for all reasonable disbursements, expenses and
advances incurred or made by it. Such expenses shall include the reasonable
compensation, disbursements and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability incurred by it in connection with the
administration of this trust and its duties hereunder, including the
reasonable expenses of defending itself against any claim of liability
arising hereunder. The
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Trustee shall notify the Company promptly of any claim asserted against the
Trustee for which it may seek indemnity. The Company need not pay for any
settlement made without its written consent, which consent shall not be
unreasonably withheld. The Company need not reimburse any expense or
indemnify against any loss or liability incurred by the Trustee through
negligence or bad faith.
To secure the Company's payment obligations in this Section 8.07,
the Trustee shall have a lien prior to the Securities of each Series on all
money or property held or collected by the Trustee, in its capacity as
Trustee, except money or property held in trust to pay principal of or
interest on particular Securities.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 7.01(4) or (5) occurs, the expenses and
the compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 8.08. REPLACEMENT OF TRUSTEE.
The Trustee may resign by so notifying the Company in writing.
The Holders of a majority in principal amount of the outstanding Securities
of all Series (voting as a single class) may remove the Trustee by so
notifying the Trustee in writing and may appoint a successor Trustee with the
Company's consent. Pursuant to a Company Order, the Company may remove the
Trustee if:
(1) the Trustee fails to comply with Section 8.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the
Trustee or its property; or
(4) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office,
the Holders of a majority in principal amount of the Securities of all Series
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(voting as a single class) may appoint a successor Trustee to replace the
successor Trustee appointed by the Company.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after
that, the retiring Trustee shall transfer, after payment of all sums then
owing to the Trustee pursuant to Section 8.07, all property held by it as
Trustee to the successor Trustee, subject to the lien provided in Section
8.07, the resignation or removal of the retiring Trustee shall become
effective, and the successor Trustee shall have all the rights, powers and
duties of the Trustee under this Indenture. A successor Trustee shall mail
notice of its succession to each Securityholder.
If a successor Trustee does not take office within 60 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company
or the Holders of at least 10% in principal amount of the outstanding
Securities of all Series (voting as a single class) may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 8.10, any
Securityholder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee. Any
successor Trustee shall comply with TIA Section 310(a)(5).
Notwithstanding replacement of the Trustee pursuant to this
Section 8.08, the Company's obligations under Section 8.07 shall continue for
the benefit of the retiring Trustee.
SECTION 8.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to,
another corporation, the resulting, surviving or transferee corporation
without any further act shall be the successor Trustee.
SECTION 8.10. ELIGIBILITY; DISQUALIFICATION.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1). The Trustee shall have combined capital
and surplus of at least $50,000,000 as set forth in its most recent
published annual report of
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condition. The Trustee shall comply with TIA Section 310(b), including the
provision permitted by the second sentence of TIA Section 310(b).
SECTION 8.11. PREFERENTIAL COLLECTION OF
CLAIMS AGAINST COMPANY.
The Trustee shall comply with TIA Section 311(a), excluding from the
operation of 311(a) any creditor relationship listed in TIA Section 311(b). A
Trustee who has resigned or been removed shall be subject to TIA Section 311(a)
to the extent indicated.
ARTICLE 9
DISCHARGE OF INDENTURE
SECTION 9.01. TERMINATION OF COMPANY'S OBLIGATIONS.
The Company may terminate its obligations under the Securities of
any Series and this Indenture with respect to such Series, except those
obligations referred to in the immediately succeeding paragraph, (a) if all
Securities of such Series previously authenticated and delivered (other than
destroyed, lost or stolen Securities of such Series which have been replaced
or paid or Securities of such Series for whose payment money or securities
have theretofore been held in trust and thereafter repaid to the Company, as
provided in Section 8.03) have been delivered to the Trustee for cancellation
and the Company has paid all sums payable by it hereunder, or (b) if,
following the date on which the Company shall have given notice to the
Trustee of its intention to defease all of the Securities of such Series, the
Company has irrevocably deposited or caused to be deposited with the Trustee
or a Paying Agent (other than the Company or a Subsidiary), under the terms
of an irrevocable trust agreement in form and substance satisfactory to the
Trustee and any such Paying Agent, as trust funds in trust solely for the
benefit of the Holders for that purpose (i) in the case of any Securities of
any Series denominated in United States dollars, an amount of cash sufficient
to pay principal of and interest on such outstanding Securities at their
respective Stated Maturities, or direct non-callable obligations of, or
non-callable obligations guaranteed by, the United States of America for the
payment of which guarantee or obligation the full faith and credit of the
United States is pledged, including but not limited to depository receipts
issued by a bank as custodian with respect to any such security held by the
custodian for the benefit of the holder of such
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depository receipt ("U.S. Government Obligations"), maturing as to principal
and interest in such amounts and at such times as are sufficient without
consideration of any reinvestment of such interest, to pay principal of and
interest on such outstanding Securities at their respective Stated Maturities
and (ii) in the case of any Securities of any Series denominated in any
currency other than United States dollars, an amount of the Required Currency
sufficient to pay principal of and interest on such outstanding Securities at
their respective Stated maturities; PROVIDED that the Trustee or such Paying
Agent shall have been irrevocably instructed to apply such cash, the proceeds
of such U.S. Government Obligations or the Required Currency, as the case may
be, to the payment of said principal and interest with respect to the
Securities of such Series; and PROVIDED, FURTHER, that if such irrevocable
deposit in trust with the Trustee of cash, U.S. Government Obligations or the
Required Currency, as the case may be, is made on or prior to one year from
the Stated Maturity for payment of principal of the Securities of the
applicable Series, the Company shall have delivered to the Trustee either an
Opinion of Counsel with no material qualifications in form and substance
satisfactory to the Trustee to the effect that Holders of such Securities (i)
will not recognize income, gain or loss for Federal income tax purposes as a
result of such deposit (and the defeasance contemplated in connection
therewith) and (ii) will be subject to Federal income tax on the same amounts
and in the same manner and at the same times as would have been the case if
such deposit and defeasance had not occurred, or an applicable favorable
ruling to that effect received from or published by the Internal Revenue
Service.
Notwithstanding the foregoing paragraph, the Company's
obligations in Sections 2.04, 2.05, 2.06, 2.07, 2.08, 5.01, 5.02, 8.07, 8.08,
9.03, 9.04 and Article 12 and except as otherwise provided in the Authorizing
Resolution and/or the supplemental indenture (if any) in respect of any
Series, shall survive until the Securities are no longer outstanding.
Thereafter, the Company's obligations in Sections 8.07, 9.03 and 9.04 shall
survive.
After any such irrevocable deposit the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities of the applicable Series and this Indenture with respect to such
Series except for those surviving obligations specified above.
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SECTION 9.02. APPLICATION OF TRUST MONEY.
The Trustee or Paying Agent shall hold in trust cash, U.S.
Government Obligations or the Required Currency, as the case may be,
deposited with it pursuant to Section 9.01, and shall apply the deposited
cash, the money from U.S. Government Obligations or the Required Currency, as
the case may be, in accordance with this Indenture to the payment of
principal of and interest on the Securities.
SECTION 9.03. REPAYMENT TO COMPANY.
Subject to Section 9.01, the Trustee and the Paying Agent shall
promptly pay to the Company upon request any excess money held by them at any
time. Subject to the provisions of applicable law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal or interest that remains unclaimed for two years,
PROVIDED, HOWEVER, the Trustee or such Paying Agent before being required to
make any payment may at the expense of the Company cause to be published once
in a newspaper of general circulation in The City of New York or mail to each
Holder entitled to such money notice that such money remains unclaimed and
that, after a date specified therein which shall be at least 30 days from the
date of such publication or mailing, any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the Company, the
Trustee shall be released from all further liability with respect to such
money and Securityholders entitled to money must look to the Company for
payment as general creditors unless an applicable abandoned property law
designates another person.
SECTION 9.04. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any cash, U.S.
Government Obligations or the Required Currency, as the case may be, in
accordance with Section 9.01 by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's
obligations under this Indenture (with respect to the applicable Series) and
the Securities of the applicable Series shall be revived and reinstated as
though no deposit had occurred pursuant to Section 9.01 until such time as
the Trustee or Paying Agent is permitted to apply all such cash, U.S.
Government Obligations and Required Currency, as the case may be, in
accordance with Section 9.01; PROVIDED, HOWEVER, that if the
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Company has made any payment of interest on or principal of any Securities of
any Series 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 cash, U.S. Government Obligations or the Required Currency,
as the case may be, held by the Trustee or Paying Agent.
SECTION 9.05. INDEMNITY FOR U.S.
GOVERNMENT OBLIGATIONS.
The Company shall pay, and shall indemnify the Trustee against,
any tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Section 8.01 or the principal and interest
received on such U.S. Government Obligations.
ARTICLE 10
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. WITHOUT CONSENT OF HOLDERS.
The Company, when authorized by a Board Resolution, and the
Trustee may amend or supplement this Indenture or the Securities of any
Series without notice to or consent of any Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 6;
(3) to provide for uncertificated Securities in addition to
certificated Securities;
(4) to make any change that does not adversely affect the
rights of any Securityholder of such Series;
(5) to provide for the issuance and the terms of any
particular Series of Securities, the rights and obligations of the
Company and the Holders of Securities of such Series, the form or
forms of the Securities of such Series and such other matters in
connection therewith as the Board of Directors of the Company shall
consider appropriate, including, without limitation, provisions for
(a) additional or different covenants, restrictions or conditions
applicable to such Series, (b) additional or different Events of
Default in respect of such Series,
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(c) a longer or shorter period of grace and/or notice in respect
of any provision applicable to such Series than is provided in Section
7.01, (d) immediate enforcement of any Event of Default in respect of
such Series or (e) limitations upon the remedies available in respect
of any Events of Default in respect of such Series or upon the rights
of the holders of Securities of such Series to waive any such Event of
Default; PROVIDED, that this paragraph (5) shall not be deemed to
require the execution of a supplemental indenture to provide for the
issuance of any Series of Securities unless the same shall be provided
for in the Authorizing Resolution relating thereto; or
(6) to provide for a separate Trustee for one or more Series.
SECTION 10.02. WITH CONSENT OF HOLDERS.
Subject to Section 7.07, with the written consent of the
Holders of at least a majority in principal amount of the outstanding
Securities of all Series affected thereby (voting as a single class),
the Company, when authorized by a Board Resolution, and the Trustee
may amend or supplement this Indenture or such Securities without
notice to any Securityholder. Subject to Section 7.07, the Holders of
a majority in principal amount of the outstanding Securities of all
Series affected thereby (voting as a single class) may waive
compliance by the Company with any provision of this Indenture or such
Securities without notice to any Securityholder; PROVIDED, that, only
the holders of a majority in principal amount of Securities of a
particular Series may waive compliance with a provision of this
Indenture or the Securities of such Series having applicability solely
to such Series. However, without the consent of each Securityholder
affected, an amendment, supplement or waiver, including a waiver
pursuant to Section 7.04, may not:
(1) reduce the amount of Securities of such Series or all
Series (voting as a single class), as the case may be, whose Holders
must consent to an amendment, supplement or waiver;
(2) reduce the rate or change the Stated Maturity for payment
of interest on any Security;
(3) reduce the principal or any premium payable upon the
redemption of or change the Stated Maturity of any Security;
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(4) waive a Default in the payment of the principal of or
interest on any Security;
(5) make any changes in Section 7.04, 7.07 or the third
sentence of this Section 10.02;
(6) make any Security payable in money other than that stated
in the Security; or
(7) adversely affect the right to convert the Securities into
Common Stock in accordance herewith.
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 the Indenture of the Holders of
Securities of any other Series.
It shall not be necessary for the consent of the Holders
under this Section to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such
consent approves the substance thereof.
After an amendment, supplement or waiver under this
Section becomes effective, the Company shall mail to the Holders
affected thereby a notice briefly describing the amendment, supplement
or waiver. Any failure of the Company to mail such notice, or any
defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
SECTION 10.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment to or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
SECTION 10.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment or waiver becomes effective, a consent
to it by a Holder is a continuing consent by the Holder and every
subsequent Holder of such Security or portion of such Security that
evidences the same debt as the consenting Holder's Security, even if
notation of the consent is not made on any Security. However, any
such Holder or subsequent Holder
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may revoke in writing the consent as to his Security or portion of a
Security. Such revocation shall be effective only if the Trustee
receives the written notice of revocation before the date the
amendment, supplement or waiver becomes effective.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to
consent to any amendment, supplement or waiver which shall be at least
30 days prior to the first solicitation of such consent. If a record
date is fixed, then notwithstanding the last two sentences of the
immediately preceding paragraph, those persons who were Holders at
such record date (or their duly designated proxies), and only those
persons, shall be entitled to consent to such amendment, supplement or
waiver or to revoke any consent previously given, whether or not such
persons continue to be Holders after such record date. No such
consent shall be valid or effective for more than 90 days after such
record date.
After an amendment, supplement or waiver becomes
effective, it shall bind every Holder of a Security of such Series,
unless it makes a change described in any of clauses (1) through (7)
of Section 10.02. In that case the amendment, supplement or waiver
shall bind each Holder of a Security who has consented to it and every
subsequent Holder of a Security or portion of a Security of the same
Series that evidences the same debt as the consenting Holder's
Security.
SECTION 10.05. NOTATION ON OR EXCHANGE OF SECURITIES.
If an amendment, supplement or waiver changes the terms of
a Security, the Trustee may require the Holder of the Security to
deliver it to the Trustee. The Trustee may place an appropriate
notation on the Security about the changed terms and return it to the
Holder. Alternatively, if the Company or the Trustee so determines,
the Company in exchange for the Security shall issue and the Trustee
shall authenticate a new Security of the same Series that reflects the
changed terms.
SECTION 10.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall be entitled to receive, and shall be
fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that the execution of any amendment,
supplement or waiver authorized pursuant to this Article 10 is
authorized or permitted by this Indenture. The
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Trustee may, but shall not be obligated to, execute any such
amendment, supplement or waiver which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 10.07. SUBORDINATION UNIMPAIRED.
This Indenture may not be amended to alter the
subordination of any Security without the written consent of each
holder of Senior Indebtedness then outstanding that would be adversely
affected thereby.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies, or
conflicts with another provision which is required to be included in
this Indenture by the TIA, the required provision shall control.
SECTION 11.02. NOTICES.
Any notice or communication shall be sufficiently given if
in writing and delivered in person or mailed by first-class mail
addressed as follows:
if to the Company:
Forest Oil Corporation
1600 Broadway
Suite 2200
Denver, Colorado 80202
Attention: Chief Financial Officer
if to the Trustee:
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The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Securityholder
shall be mailed to him at his address as it appears on the Security
Register and shall be sufficiently given to him if so mailed within
the time prescribed.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its sufficiency
with respect to other Securityholders. Except for a notice to the
Trustee, which is deemed given only when received, if a notice or
communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 11.03. COMMUNICATIONS BY HOLDERS
WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b)
with other Securityholders with respect to their rights under this
Indenture or the Securities of an applicable Series. The Company, the
Trustee, the Registrar and any other person shall have the protection
of TIA Section 312(c).
SECTION 11.04. CERTIFICATE AND OPINION
AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the
Trustee to take any action under this Indenture, the Company shall
furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
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SECTION 11.05. STATEMENTS REQUIRED IN
CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
(1) a statement that the person making such certificate or
opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has
made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with; PROVIDED,
HOWEVER, that with respect to matters of fact an Opinion of Counsel
may rely on an Officers' Certificate or certificates of public
officials.
SECTION 11.06. RULES BY TRUSTEE, PAYING AGENT,
REGISTRAR.
The Trustee may make reasonable rules for action by or at
a meeting of Securityholders. The Paying Agent or Registrar may make
reasonable rules for its functions.
SECTION 11.07. LEGAL HOLIDAYS.
A "Legal Holiday" is a Saturday, a Sunday or a day on
which banking institutions in New York, New York are not required to
be open. If a payment date is a Legal Holiday at a place of payment,
payment may be made at the place on the next succeeding day that is
not a Legal Holiday, and no interest shall accrue for the intervening
period.
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SECTION 11.08. GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS
INDENTURE AND THE SECURITIES WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAW.
SECTION 11.09. NO ADVERSE INTERPRETATION
OF OTHER AGREEMENTS.
This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company or any of its
Subsidiaries. Any such indenture, loan or debt agreement may not be
used to interpret this Indenture.
SECTION 11.10. NO RECOURSE AGAINST OTHERS.
A director, officer, employee or stockholder, as such, of
the Company shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based
on, in respect of or by reason of such obligations or their creation.
Each Securityholder by accepting a Security waives and releases all
such liability.
SECTION 11.11. SUCCESSORS.
All agreements of the Company in this Indenture and the
Securities shall bind its successor. All agreements of the Trustee in
this Indenture shall bind its successor.
SECTION 11.12. DUPLICATE ORIGINALS.
The parties may sign any number of copies of the
Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
SECTION 11.13. SEPARABILITY.
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, and a Holder shall have no
claim therefor against any party hereto.
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SECTION 11.14. ACTION OF HOLDERS WHEN SECURITIES ARE
DENOMINATED IN DIFFERENT CURRENCIES.
Whenever any action is to be taken hereunder by the
Holders of two or more Series of Securities denominated in different
currencies, then, for the purposes of determining the principal amount
of Securities held by such Holders, the aggregate principal amount of
the Securities denominated in a currency other than United States
dollars shall be deemed to be that amount of United States dollars
that could be obtained for such principal amount on the basis of the
spot rate of exchange for such currency as determined by the Company
or by an authorized exchange rate agent and evidenced to the Trustee
by an Officers' Certificate as of the date the taking of such action
by the Holders of the requisite percentage in principal amount of the
Securities is evidenced to the Trustee. An exchange rate agent may be
authorized in advance or from time to time by the Company, and may be
the Trustee or its Affiliate. Any such determination by the Company
or by any such exchange rate agent shall be conclusive and binding on
all Holders and the Trustee, and neither the Company nor such exchange
rate agent shall be liable therefor in the absence of bad faith.
SECTION 11.15. MONIES OF DIFFERENT CURRENCIES
TO BE SEGREGATED.
The Trustee shall segregate monies, funds, and accounts
held by the Trustee hereunder in one currency from any monies, funds
or accounts in any other currencies, notwithstanding any provision
herein which would otherwise permit the Trustee to commingle such
amounts.
SECTION 11.16. PAYMENT TO BE IN PROPER CURRENCY.
Each reference in any Security, or in the Authorizing
Resolution and/or supplemental indenture, if any, relating thereto, to
any currency shall be of the essence. In the case of any Security
denominated in any currency (the "Required Currency") other than
United States dollars, except as otherwise provided therein or in the
related Authorizing Resolution and/or supplemental indenture, if any,
the obligation of the Company to make any payment of principal of or
interest thereon shall not be discharged or satisfied by any tender by
the Company, or recovery by the Trustee, in any currency other than
the Required Currency, except to the extent that such tender or
recovery shall result in the Trustee timely holding the full amount of
the Required Currency. The costs and risks of any
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such exchange, including without limitations, the risks of delay and
exchange rate fluctuation, shall be borne by the Company; the Company
shall remain fully liable for any shortfall or delinquency in the full
amount of Required Currency then due and payable, and in no
circumstances shall the Trustee be liable therefor. The Company
hereby waives any defense of payment based upon any such tender or
recovery which is not in the Required Currency, or which, when
exchanged for the Required Currency by the Trustee, is less than the
full amount of Required Currency then due and payable.
ARTICLE 12
CONVERSION OF SECURITIES
SECTION 12.01. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to the
Securities of any Series which are convertible into Common Stock
pursuant to the Authorizing Resolution and/or Supplemental Indenture
(if any) by which the form and terms of the Securities of such Series
were established, as and to the extent provided by the terms of the
Securities of such Series.
SECTION 12.02. EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege, the Holder
of any Security to be converted shall surrender such Security to the
Conversion Agent at any time during usual business hours at its office
or agency maintained for the purpose as provided in this Indenture,
accompanied by a fully executed written notice, in substantially the
form set forth on the reverse of the Security, that the Holder elects
to convert such Security or a stated portion thereof constituting a
multiple of $1,000 in principal amount, and, if such Security is
surrendered for conversion during the period between the close of
business on any Regular Record Date for such Security and the opening
of business on the related Interest Payment Date and has not been
called for redemption on a Redemption Date within such period (or on
such Interest Payment Date), accompanied also by payment of an amount
equal to the interest payable on such Interest Payment Date on the
portion of the principal amount of the Security being surrendered for
conversion. Such notice shall also state the name or names (and
address) in which the certificate or certificates of shares of Common
Stock shall be issued. Securities surrendered for conversion shall
(if so required by the Company or the Conversion Agent) be duly
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endorsed by, or be accompanied by a written instrument or instruments
of transfer in form satisfactory to the Company and the Conversion
Agent duly executed by, the Holder or his attorney duly authorized in
writing. As promptly as practicable after the receipt of such notice
and the surrender of such Security as aforesaid, the Company shall,
subject to the provisions of Section 12.07, issue and deliver at such
office or agency to such Holder, or on his written order, a
certificate or certificates for the number of full shares of Common
Stock issuable on conversion of such Security in accordance with the
provisions of such Security and cash, as provided in Section 12.03, in
respect of any fraction of a share of Common Stock otherwise issuable
upon such conversion. Such conversion shall be at the Conversion
Price in effect, and shall be deemed to have been effected,
immediately prior to the close of business on the date (herein called
the "Date of Conversion") on which such notice in proper form shall
have been received by the Conversion Agent and such Security shall
have been surrendered as aforesaid, and the person or persons in whose
name or names any certificate or certificates for shares of Common
Stock shall be issuable upon such conversion shall be deemed to have
become on the Date of Conversion the holder or holders of record of
the shares represented thereby; PROVIDED, HOWEVER, that any such
surrender on any date when the stock transfer books of the Company
shall be closed shall constitute the person or persons in whose name
or names the certificate or certificates for such shares are to be
issued as the record holder or holders thereof for all purposes at the
opening of business on the next succeeding day on which such stock
transfer books are open but such conversion shall nevertheless be at
the Conversion Price in effect at the close of business on the date
when such Security shall have been so surrendered with the conversion
notice in proper form. In the case of conversion of a portion, but
less than all, of a Security, the Company shall execute, and the
Trustee shall authenticate and deliver to the Holder thereof, at the
expense of the Company, a Security or Securities in the aggregate
principal amount of the unconverted portion of the Security
surrendered. Except as otherwise expressly provided in this
Indenture, no payment or adjustment shall be made for interest accrued
on any Security (or portion thereof) converted or for dividends or
distributions on any Common Stock issued upon conversion of any
Security. The right, if any, of a Holder of any Security to cause the
Company to redeem, purchase or repay such Security shall terminate
upon receipt by the Company of any notice of conversion of such
Security.
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SECTION 12.03. FRACTIONAL INTERESTS.
No fractions of shares or scrip representing fractions of shares
shall be issued upon conversion of Securities. If more than one Security
shall be surrendered for conversion at one time by the same Holder, the
number of full shares which shall be issuable upon conversion thereof shall
be computed on the basis of the aggregate principal amount of the Securities
so surrendered. If any fraction of a share of Common Stock would, except for
the provisions of this Section 12.03, be issuable on the conversion of any
Security or Securities, the Company shall make payment in lieu thereof in
cash equal to the value of such fraction computed on the basis of the Last
Sale Price of one share of Common Stock on the most recent Trading Day prior
to the Date of Conversion. "Last Sale Price" on any Trading Day shall mean
(i) the closing price regular way (or, if no closing price is reported, the
average of the bid and asked prices) as reported on the New York Stock
Exchange Composite Tape, or (ii) if on such Trading Day the Common Stock is
not listed or admitted to trading on such exchange, the closing price regular
way (or, if no closing price is reported, the average of the bid and asked
prices) on the principal national securities exchange on which the Common
stock is listed or admitted to trading, or (iii) if not listed or admitted to
trading on any national securities exchange on such Trading Day, then the
average of the closing bid and asked prices as reported through the National
Association of Securities Dealers, Inc. on its Nasdaq National Market System
or Nasdaq System or a similar organization if Nasdaq is no longer reporting
information, or (iv) if the Common Stock is not listed or admitted to trading
on any national securities exchange or quoted on the Nasdaq National Market
System or Nasdaq System on such Trading Day, then the average of the closing
bid and asked prices in the over-the-counter market as furnished by any New
York Stock Exchange member firm selected from time to time by the Company for
that purpose or (v) if not quoted by any such organization on such Trading
Day, the fair value of such Common Stock on such Trading Day, as determined
by the Board of Directors. The term "Trading Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday, other than any day on which
securities are not traded on any of the above mentioned exchanges or in such
markets.
SECTION 12.04. ADJUSTMENT OF CONVERSION PRICE.
The conversion price or rate (herein called the "Conversion
Price") for the Securities of any Series shall be as
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set forth in the Authorizing Resolution and/or supplemental indenture (if
any) pursuant to which the form and terms of the Securities of such Series
were established, and, except as otherwise provided therein, shall be subject
to adjustment from time to time as follows:
(a) In case the Company shall (1) pay a dividend or make a
distribution in shares of Common Stock on the Common Stock, (2)
subdivide its outstanding shares of Common Stock into a greater
number of shares, (3) combine its outstanding shares of Common Stock
into a smaller number of shares or (4) issue by reclassification of
its Common Stock any shares of Capital Stock of the Company, the
Conversion Price in effect immediately prior to such action shall be
adjusted so that the Holder of any Security thereafter surrendered
for conversion shall be entitled to receive the number of shares of
Common Stock or other Capital Stock of the Company which such Holder
would have owned immediately following such action had such Security
been converted immediately prior thereto. An adjustment made
pursuant to this subsection (a) shall become effective immediately,
except as provided in subsection (e) below, after the record date in
the case of a dividend or distribution and shall become effective
immediately after the effective date in the case of a subdivision,
combination or reclassification. If, as a result of an adjustment
made pursuant to this subsection (a), the Holder of any Security
thereafter surrendered for conversion shall become entitled to
receive shares of two or more classes of Capital Stock (including
shares of Common Stock and other Capital Stock) of the Company,
the Board of Directors (whose determination shall be conclusive and
shall be described in a statement filed with the Trustee) shall
determine the allocation of the adjusted Conversion Price between
or among shares of such classes of Capital Stock or shares of
Common Stock and other Capital Stock.
(b) In case the Company shall issue rights or warrants to all
holders of Common Stock entitling them (for a period not exceeding 45
days from the date of such issuance) to subscribe for or purchase
shares of Common Stock at a price per share less than the current
market price per share (as determined pursuant to subsection (d)
below) of the Common Stock on the record date mentioned below, the
Conversion Price shall be adjusted to a price, computed to the
nearest cent, so that the same shall equal the price determined by
multiplying:
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(1) the Conversion Price in effect immediately prior to
the date of issuance of such rights or warrants by a fraction,
of which
(2) the numerator shall be (A) the number of shares of
Common Stock outstanding on the date of issuance of such rights
or warrants, immediately prior to such issuance, plus (B) the
number of shares which the aggregate offering price of the
total number of shares so offered for subscription or purchase
would purchase at such current market price (determined by
multiplying such total number of shares by the exercise price
of such rights or warrants and dividing the product so obtained
by such current market price), and of which
(3) the denominator shall be (A) the number of shares of
Common Stock outstanding on the date of issuance of such rights
or warrants, immediately prior to such issuance, plus (B) the
number of additional shares of Common Stock which are so
offered for subscription or purchase.
Such adjustment shall become effective immediately, except as
provided in subsection (e) below, after the record date for the
determination of holders entitled to receive such rights or warrants.
(c) In case the Company shall distribute to substantially all
holders of Common Stock, evidences of indebtedness, equity securities
(including equity interests in the Company's Subsidiaries) other than
Common Stock, or other assets (other than cash dividends paid out
of surplus of the Company), or shall distribute to substantially all
holders of Common Stock rights or warrants to subscribe for
securities (other than those referred to in subsection (b) above)
then in each such case the Conversion Price shall be adjusted so that
the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the date of such
distribution by a fraction of which the numerator shall be the
current market price per share (determined as provided in subsection
(d) below) of the Common Stock on the record date mentioned below
less the then fair market value as determined by the Board of
Directors (whose determination shall, if made in good faith, be
conclusive evidence of such fair market value) of the portion of the
assets so distributed
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or of such subscription rights or warrants applicable to one share
of Common Stock, and of which the denominator shall be such current
market price per share of the Common Stock. Such adjustment shall
become effective immediately, except as provided in subsection (e)
below, after the record date for the determination of stockholders
entitled to receive such distribution.
(d) For the purpose of any computation under subsections (b)
and (c) above, the current market price per share of Common Stock on
any date shall be deemed to be the average of the Last Sale Prices
for the 30 consecutive Trading Days commencing 45 Trading Days before
the date in question.
(e) In any case in which this Section 12.04 shall require
that an adjustment be made immediately following a record date, the
Company may elect to defer the effectiveness of such adjustment (but
in no event until a date later than the effective time of the event
giving rise to such adjustment), in which case the Company shall,
with respect to any Security converted after such record date and
before such adjustment shall have become effective, (i) defer paying
any cash payment pursuant to Section 12.03 or issuing to the Holder
of such Security the number of shares of Common Stock and other
Capital Stock of the Company issuable upon such conversion in excess
of the number of shares of Common Stock and other Capital Stock of
the Company issuable thereupon only on the basis of the Conversion
Price prior to adjustment, and (ii) not later than five Business Days
after such adjustment shall have become effective, pay to such Holder
the appropriate cash payment pursuant to Section 12.03 and issue to
such Holder the additional shares of Common Stock and other Capital
Stock of the Company issuable on such conversion.
(f) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% of the Conversion Price; PROVIDED that any adjustments which
by reason of this subsection (f) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment;
PROVIDED, FURTHER, that adjustment shall be required and made in
accordance with the provisions of this Article 11 (other than this
subsection (f)) not later than such time as may be required in order
to preserve the tax-free nature of a distribution to the holders of
Securities or
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Common Stock. All calculations under this Article 11 shall be made
to the nearest cent or to the nearest one-hundredth of a share, as
the case may be.
(g) Whenever the Conversion Price is adjusted as herein
provided, the Company shall promptly (i) file with the Trustee and
each Conversion Agent an Officer's Certificate setting forth the
Conversion Price after such adjustment and setting forth a brief
statement of the facts requiring such adjustment, which certificate
shall be conclusive evidence of the correctness of such adjustment,
and (ii) mail or cause to be mailed a notice of such adjustment to
each Holder of Securities in the manner provided in Section 11.02.
Anything in this Section 12.04 to the contrary notwithstanding, the Company
shall be entitled to make such reductions in the Conversion Price, in
addition to those required by this Section 12.04, as it in its discretion
shall determine to be advisable in order that any stock dividend,
subdivision of shares, distribution of rights or warrants to purchase stock
or securities, or distribution of other assets (other than cash dividends)
hereafter made by the Company to its stockholders shall not be taxable.
SECTION 12.05. CONTINUATION OF CONVERSION PRIVILEGE
IN CASE OF MERGER, CONSOLIDATION OR
SALE OF ASSETS.
If any of the following shall occur, namely: (a) any
consolidation or merger of the Company as a result of which the holders of
Common Stock shall be entitled to receive stock, other securities or other
assets (including cash) with respect to or in exchange for Common Stock; or
(b) any sale, lease, exchange or other disposition of all or substantially
all of the property and assets of the Company as an entirety, then the
Company, or such successor or purchasing corporation, as the case may be,
shall, as a condition precedent to such consolidation, merger, sale, lease,
exchange or other disposition, execute and deliver to the Trustee a
supplemental indenture (which shall conform to the TIA as in force at the
date of the execution thereof) providing that the Holder of each convertible
Security then outstanding shall have the right to convert such Security into
the kind and amount of shares of stock and other securities and property
(including cash) receivable upon or in connection with such consolidation,
merger, sale, lease, exchange or other disposition by a holder of the number
of
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shares of Common Stock issuable upon conversion of such Security immediately
prior to such consolidation, merger, sale, lease, exchange or other
disposition. Such supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article 12. If, in the case of any such consolidation,
merger, sale, lease, exchange or other disposition, the stock or other
securities and property (including cash) receivable thereupon or in
connection therewith by a holder of shares of Common Stock includes shares of
stock or other securities and property (including cash) of a corporation
other than the successor or purchasing corporation, as the case may be, in
such consolidation, merger, sale, lease, exchange or other disposition, then
such supplemental indenture shall also be executed by such other corporation
and shall contain such additional provisions to protect the interests of the
Holders of the Securities as the Board of Directors shall reasonably consider
necessary by reason of the foregoing. The provisions of this Section 12.05
shall similarly apply to successive consolidations, mergers, sales, leases,
exchanges or other dispositions.
Notice of the execution of each such supplemental indenture
shall be mailed to each Holder of Securities in the manner provided in
Section 11.02.
Neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in
any such supplemental indenture relating either to the kind or amount of
shares of stock or securities or property (including cash) receivable by
Holders of Securities upon the conversion of their Securities after any
such consolidation, merger, sale, lease, exchange or other disposition or
to any adjustment to be made with respect thereto, but, subject to the
provisions of Sections 8.01 and 8.02, may accept as conclusive evidence of
the correctness of any such provisions, and shall be protected in relying
upon, the Officer's Certificate (which the Company shall be obligated to
file with the Trustee prior to the execution of any such supplemental
indenture) with respect thereto.
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SECTION 12.06. NOTICE OF CERTAIN EVENTS.
If:
(a) the Company shall declare a dividend (or any other
distribution) payable to the holders of Common Stock otherwise than
in cash; or
(b) the Company shall authorize the granting to all holders
of Common Stock of rights to subscribe for or purchase any shares of
stock of any class or of any other rights; or
(c) the Company shall authorize any reclassification or
change of the Common Stock (other than a subdivision or combination
of its outstanding shares of Common Stock), or any consolidation or
merger to which the Company is a party and for which approval of any
stockholders of the Company is required, or the sale, lease, exchange
or other disposition of all or substantially all the property and
assets of the Company; or
(d) there shall be authorized or ordered any voluntary or
involuntary dissolution, liquidation or winding-up of the Company;
then, the Company shall cause to be filed at the office or agency
maintained for the purpose of conversion of the Securities as provided in
Section 5.02, and shall cause to be mailed to each Holder of Securities, in
the manner provided in Section 11.02, at least 20 days before the date
hereinafter specified (or the earlier of the dates hereinafter specified,
in the event that more than one date is specified), a notice stating the
date on which (1) a record is expected to be taken for the purpose of such
dividend, distribution or rights, or if a record is not to be taken, the
date as of which the holders of Common Stock of record to be entitled to
such dividend, distribution or rights are to be determined, or (2) such
reclassification, change, consolidation, merger, sale, lease, exchange or
other disposition, dissolution, liquidation or winding-up is expected to
become effective and the date, if any is to be fixed, as of which it is
expected that holders of Common Stock of record shall be entitled to
exchange their shares of Common Stock for securities or other property
deliverable upon such reclassification, change, consolidation, merger,
sale, lease, exchange or other disposition, dissolution, liquidation or
winding-up.
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SECTION 12.07. TAXES ON CONVERSION.
The Company will pay any and all documentary, stamp or similar
taxes payable to the United States of America or any political subdivision or
taxing authority thereof or therein in respect of the issue or delivery of
shares of Common Stock on conversion of Securities pursuant thereto;
PROVIDED, HOWEVER, that the Company shall not be required to pay any tax
which may be payable in respect of any transfer involved in the issue or
delivery of shares of Common Stock in a name other than that of the Holder of
the Securities to be converted (or payment of cash in lieu thereof to a
person other than such Holder) and no such issue or delivery (or payment)
shall be made unless and until the person requesting such issue or delivery
(or payment) has paid to the Company the amount of any such tax or has
established, to the satisfaction of the Company, that such tax has been paid.
The Company extends no protection with respect to any other taxes imposed in
connection with conversion of Securities.
SECTION 12.08. COMPANY TO PROVIDE STOCK.
The Company shall reserve, free from preemptive rights, out of
its authorized but unissued shares, sufficient shares to provide for the
conversion of convertible Securities from time to time as such Securities
are presented for conversion; PROVIDED, HOWEVER, that nothing contained
herein shall be construed to preclude the Company from satisfying its
obligations in respect of the conversion of Securities by delivery of
repurchased shares of Common Stock which are held in the treasury of the
Company.
If any shares of Common Stock to be reserved for the purpose of
conversion of Securities hereunder require registration with or approval of
any governmental authority under any Federal or state law before such
shares may be validly issued or delivered upon conversion, then the Company
covenants that it will in good faith and as expeditiously as possible
endeavor to secure such registration or approval, as the case may be;
PROVIDED, HOWEVER, that nothing in this Section 12.08 shall be deemed to
affect in any way the obligations of the Company to convert Securities into
Common Stock as provided in this Article 12.
Before taking any action which would cause an adjustment
reducing the Conversion Price below the then par value, if any, of the
Common Stock, the Company will take all corporate
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action which may, in the opinion of counsel, be necessary in order that the
Company may validly and legally issue fully paid and non-assessable shares of
Common Stock at such adjusted Conversion Price.
The Company covenants that all shares of Common Stock which may
be issued upon conversion of Securities will upon issue be fully paid and
non-assessable by the Company and free of preemptive rights.
SECTION 12.09. DISCLAIMER OF RESPONSIBILITY
FOR CERTAIN MATTERS.
Neither the Trustee, any Conversion Agent nor any agent of
either shall at any time be under any duty or responsibility to any Holder
of Securities to determine whether any facts exist which may require any
adjustment of the Conversion Price or with respect to the Officer's
Certificate referred to in Section 12.04(g), or with respect to the nature
or extent of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee, any Conversion Agent
nor any agent of either shall be accountable with respect to the validity
or value (or the kind or amount) of any shares of Common Stock, or of any
securities or property (including cash), which may at any time be issued or
delivered upon the conversion of any Security; and neither the Trustee, any
Conversion Agent nor any agent of either makes any representation with
respect thereto. Neither the Trustee, any Conversion Agent nor any agent
of either shall be responsible for any failure of the Company to issue,
register the transfer of or deliver any shares of Common Stock or stock
certificates or other securities or property (including cash) upon the
surrender of any Security for the purpose of conversion or, subject to
Section 8.01 and 8.02, to comply with any of the covenants of the Company
contained in this Article 12.
Section 12.10. RETURN OF FUNDS DEPOSITED FOR
REDEMPTION OF CONVERTED SECURITIES.
Any funds which at any time shall have been deposited by the
Company or on its behalf with the Trustee or any Paying Agent for the
purpose of paying the principal of and interest, if any, on any of the
Securities and which shall not be required for such purposes because of the
conversion of such Securities, as provided in this Indenture, shall
forthwith
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after such conversion be repaid to the Company by the Trustee or such Paying
Agent.
ARTICLE 13
SUBORDINATION
SECTION 13.01. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company covenants and agrees that anything in this Indenture
or the Securities of any Series to the contrary notwithstanding, the
indebtedness evidenced by the Securities of each Series is subordinate and
junior in right of payment to all Senior Indebtedness to the extent provided
herein, and each Holder of Securities of each Series, by such Holder's
acceptance thereof, likewise covenants and agrees to the subordination herein
provided and shall be bound by the provisions hereof.
If any default occurs and is continuing in the payment when due,
whether at maturity, upon any redemption, by declaration or otherwise, of any
principal of, interest on, unpaid drawings for letters of credit issued in
respect of, or regularly accruing fees with respect to, any Senior
Indebtedness (a "Payment Default"), no payment of any kind or character shall
be made by or on behalf of the Company or any other person on its or their
behalf with respect to any principal of, interest on or other amounts owing
in respect of the Securities or to acquire any of the Securities for cash,
property or otherwise. Upon the happening of any default or event of default
(other than a Payment Default) (including any event which with the giving of
notice or the lapse of time or both would become an event of default and
including any default or event of default which would result upon any payment
with respect to the Securities) with respect to any Senior Indebtedness, as
such default or event of default is defined therein or in the instrument or
agreement or other document under which it is outstanding, then upon written
notice thereof given to the Company and the Trustee by a holder or holders of
any Senior Indebtedness or their Representative ("Payment Notice"), no
payment shall be made by or on behalf of the Company with respect to the
principal of, premium, if any, or interest on the Securities, during the period
(the "Payment Blockage Period") commencing on the date of such receipt of
such Payment Notice and ending on the earlier of (x) the date, if any, on
which such default is cured or waived or ceases to exist or the Senior
Indebtedness to which such default relates is discharged and (y) the 120th
day after the date of receipt of such Payment Notice. The Company may resume
payments on the Securities after such Payment Blockage Period. Not more than
one Payment Notice may be given in any consecutive 360-day period with
respect to any Senior Indebtedness, irrespective of the number of defaults
with respect to Senior Indebtedness during such period, and the giving of a
Payment Notice will not prevent the payment of an installment of principal of
or interest on the Securities for more 120 days, except that the commencement
of a Payment Blockage Period by any holders of or the trustee for Senior
Indebtedness other than Indebtedness under the Company's revolving loan and
letter of credit facility with The Chase Manhattan Bank, N.A. and a group of
other lenders (the "Bank Credit Facility") (the "Initial Payment Blockage
Period") will not prevent the commencement of a subsequent Payment Blockage
Period (the "Subsequent Payment Blockage Period") by the Agent under the Bank
Credit Facility, PROVIDED, HOWEVER, that in no event may the Subsequent
Payment Blockage Period end later than the 179th day after the date of
receipt of the Payment Notice with respect to the Initial Payment Blockage
Period. Notwithstanding the foregoing, (i) no event of default which existed
or was continuing on the date of any Payment Notice shall be made the basis
for the giving of a subsequent Payment Notice unless all such events of
default shall have been cured or waived for a period of at least 90
consecutive days after such date, and (ii) if the Company or the Trustee
receives any Payment Notice, a similar notice relating to or arising out of
the same default or facts giving rise to such default (whether or not such
default is on the same issue of Senior Indebtedness), unless cured or waived
for such period of at least 90 consecutive days, shall not be effective for
purposes of this paragraph (c).
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Upon any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to
creditors upon any total or partial liquidation, dissolution, winding up,
reorganization, assignment for the benefit of creditors or marshaling of
assets of the Company or in a bankruptcy, reorganization, insolvency,
receivership or other similar proceeding relating to the Company or its
property, whether voluntary or involuntary, all principal of, interest on
and all other amounts due or to become due upon all Senior Indebtedness
shall first be paid in full in cash, or such payment duly provided for to
the satisfaction of the holders of Senior Indebtedness, before any payment
or distribution of any kind or character is made on account of any
principal of, interest on or other amounts owing in respect of the
Securities, or for the acquisition of any of the Securities for cash,
property or otherwise. In the event of any such proceeding, after payment
in full of all sums owing with respect to Senior Indebtedness, the Holders
of the Securities, together with the holders of any obligations of the
Company ranking on a parity with the Securities, shall be entitled to be
paid from the remaining assets of the Company the amounts at the time due
and owing on account of unpaid principal of and interest, if any, on the
Securities and such other obligations before any payment or other
distribution, whether in cash, property or otherwise, shall be made on
account of any Capital Stock or any
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obligations of the Company ranking junior to the Securities and such other
obligations.
If, notwithstanding the foregoing, any payment or distribution
of any character, whether in cash, securities or other property, shall be
received by the Trustee or any Holder in contravention of any of the terms
hereof, such payment or distribution shall be received in trust for the
benefit of, and shall be paid over or delivered and transferred to, the
holders of the Senior Indebtedness then outstanding in accordance with the
priorities then existing among such holders for application to the payment
of all Senior Indebtedness remaining unpaid, to the extent necessary to pay
all such Senior Indebtedness in full. In the event of the failure of the
Trustee or any Holder to endorse or assign any such payment, distribution
or security, each holder of Senior Indebtedness is hereby irrevocably
authorized to endorse or assign the same.
No present or future holder of any Senior Indebtedness shall be
prejudiced in the right to enforce subordination of the indebtedness
evidenced by the Securities by any act or failure to act on the part of the
Company. Nothing contained herein shall impair, as between the Company and
the Holders of Securities of each Series, the obligation of the Company to
pay to such Holders the principal of and interest, if any, on such Securities
or prevent the Trustee or the Holder from exercising all rights, powers and
remedies otherwise permitted by applicable law or hereunder upon a Default or
Event of Default hereunder, all subject to the rights of the holders of the
Senior Indebtedness to receive cash, securities or other property otherwise
payable or deliverable to the Holders.
Senior Indebtedness shall not be deemed to have been paid in
full unless the holders thereof shall have received cash equal to the
amount of such Senior Indebtedness then outstanding. Upon the payment in
full of all Senior Indebtedness, the Holders of Securities of each Series
shall be subrogated to all rights of any holders of Senior Indebtedness to
receive any further payments or distributions applicable to the Senior
Indebtedness until the indebtedness evidenced by the Securities of such
Series shall have been paid in full, and such payments or distributions
received by such Holders, by reason of such subrogation, of cash,
securities or other property which otherwise would be paid or distributed
to the holders of Senior Indebtedness, shall, as between the Company and
its creditors other than the holders of Senior Indebtedness, on the one
hand, and such Holders, on the other hand, be deemed to be a payment
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by the Company on account of Senior Indebtedness, and not on account of the
Securities of such Series.
The provisions of this Section 13.01 shall not impair any
rights, interests, remedies or powers of any secured creditor of the
Company in respect of any security the creation of which is not prohibited
by the provisions of this Indenture.
The securing of any obligations of the Company, otherwise
ranking on a parity with the Securities or ranking junior to the
Securities, shall not be deemed to prevent such obligations from
constituting, respectively, obligations ranking on a parity with the
Securities or ranking junior to the Securities.
SECTION 13.02. RELIANCE ON CERTIFICATE OF LIQUI-
DATING AGENT; FURTHER EVIDENCE AS
TO OWNERSHIP OF SENIOR INDEBTEDNESS.
Upon any payment or distribution of assets of the Company, the
Trustee and the Holders shall be entitled to rely upon an order or decree
issued by any court of competent jurisdiction in which such dissolution or
winding up or liquidation or reorganization or arrangement proceedings are
pending or upon a certificate of the trustee in bankruptcy, receiver,
assignee for the benefit of creditors or other person making such payment
or distribution, delivered to the Trustee or to the 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 13. In the absence of any such bankruptcy
trustee, receiver, assignee or other person, the Trustee shall be entitled
to rely upon a written notice by a person representing himself to be a
holder of Senior Indebtedness (or a trustee or representative on behalf of
such holder) as evidence that such person is a holder of Senior
Indebtedness (or is such a trustee or representative). If the Trustee
determines, in good faith, that further evidence is required with respect
to the right of any person as a holder of Senior Indebtedness to
participate in any payment or distributions pursuant to this Article 13,
the Trustee may request such person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Indebtedness held by
such person, as to the extent to which such person is entitled to
participate in such payment or distribution, and as to other facts
pertinent to the
<PAGE>
-73-
rights of such persons under this Article 13, and if such evidence is not
furnished, the Trustee may defer any payment to such person pending judicial
determination as to the right of such person to receive such payment.
SECTION 13.03. PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article 13 or elsewhere in this
Indenture, or in any of the Securities, shall prevent (a) the Company at
any time, except during the pendency of any of the events described in the
second and third paragraphs of Section 13.01, from making payments of the
principal of or interest, if any, on the Securities, or (b) the application
by the Trustee or any Paying Agent of any moneys deposited with it
hereunder to payments of the principal of or interest, if any, on the
Securities, unless and until the Trustee or such Paying Agent, as the case
may be, shall have timely received the Officer's Certificate or written
notice provided for in Section 13.05.
SECTION 13.04. DISPUTES WITH HOLDERS OF CERTAIN
SENIOR INDEBTEDNESS.
Any failure by the Company to make any payment on or under any
Senior Indebtedness, other than any Senior Indebtedness as to which the
provisions of this Section 13.04 shall have been waived by the Company in the
instrument or instruments by which the Company incurred, assumed, guaranteed
or otherwise created such Senior Indebtedness, shall not be deemed a default
under Section 13.01 if (i) the Company shall be disputing its obligation to
make such payment or perform such obligation, and (ii) either (A) no final
judgment relating to such dispute shall have been issued against the Company
which is in full force and effect and is not subject to further review,
including a judgment that has become final by reason of the expiration of the
time within which a party may seek further appeal or review, or (B) in the
event of a judgment that is subject to further review or appeal has been
issued, the Company shall in good faith be prosecuting an appeal or other
proceeding for review, and a stay of execution shall have been obtained
pending such appeal or review.
SECTION 13.05. TRUSTEE NOT CHARGED WITH KNOWLEDGE
OF PROHIBITION.
Anything in this Article 13 or elsewhere in this Indenture
contained to the contrary notwithstanding, the
<PAGE>
-74-
Trustee shall not at any time be charged with knowledge of the existence of
any facts which would prohibit the making of any payment of moneys to or by
the Trustee and shall be entitled to assume conclusively that no such facts
exist and that no event specified in the third paragraph of Section 13.01 has
happened, unless and until the Trustee shall have received an Officer's
Certificate to that effect or notice in writing to that effect signed by or
on behalf of the holder or holders, or their representatives, of Senior
Indebtedness who shall have been certified by the Company or otherwise
established to the reasonable satisfaction of the Trustee to be such holder
or holders or representatives or from any trustee under any indenture
pursuant to which such Senior Indebtedness shall be outstanding; PROVIDED,
HOWEVER, that, if the Trustee shall not have received the Officer's
Certificate or notice provided for in this Section 13.05 at least three
Business Days preceding the date upon which by the terms hereof any such
moneys may become payable for any purpose (including, without limitation, the
payment of either the principal of or interest, if any, on any Security),
then, anything herein contained to the contrary notwithstanding, the Trustee
shall have full power and authority to receive such moneys and apply the same
to the purpose for which they were received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
preceding such date. The Company shall give prompt written notice to the
Trustee and to each Paying Agent of any facts which would prohibit any
payment of moneys to or by the Trustee or any Paying Agent, and the Trustee
shall not be charged with knowledge of the curing of any default or the
elimination of any other fact or condition preventing such payment or
distribution unless and until the Trustee shall have received an Officer's
Certificate to such effect.
SECTION 13.06. TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of Securities by such Holder's acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may
be necessary or appropriate to effectuate the subordination as between such
Holder and holders of Senior Indebtedness as provided in this Article 13
and appoints the Trustee its attorney-in-fact for any and all such
purposes.
SECTION 13.07. RIGHTS OF TRUSTEE AS HOLDER OF
SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all the rights set forth in
this Article 13 with respect to any Senior
<PAGE>
-75-
Indebtedness which may at the time be held by it, to the same extent as any
other holder of Senior Indebtedness and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder. Nothing in this
Article 13 shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 8.07.
SECTION 13.08. ARTICLE APPLICABLE TO PAYING AGENTS.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the
term "Trustee" as used in this Article 13 shall in such case (unless the
context shall otherwise require) be construed as extending to and including
such Paying Agent within its meaning as fully for all intents and purposes
as if the Paying Agent were named in this Article 13 in addition to or in
place of the Trustee; PROVIDED, HOWEVER, that Sections 13.05 and 13.07
shall not apply to the Company if it acts as Paying Agent.
SECTION 13.09. 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 as herein provided shall at any time
in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof which any such holder may have or be otherwise charged with. The
holders of Senior Indebtedness may, at any time or from time to time and in
their absolute discretion, change the manner, place or terms of payment,
change or extend the time of payment of, or renew or alter, any such Senior
Indebtedness, or amend or supplement any instrument pursuant to which any
such Senior Indebtedness is issued or by which it may be secured, or
release any security therefor, or exercise or refrain from exercising any
other of their rights under the Senior Indebtedness, including, without
limitation, the waiver of default thereunder, all without notice to or
assent from the Holders of the Securities or the Trustee and without
affecting the obligations of the Company, the Trustee or the Holders of
Securities under this Article 13.
<PAGE>
-76-
SECTION 13.10. TRUSTEE NOT FIDUCIARY FOR HOLDERS
OF SENIOR INDEBTEDNESS.
The Trustee shall not be deemed to owe any fiduciary duty to
the holder of the Senior Indebtedness, and shall not be liable to any such
holders if it shall mistakenly pay over or distribute money or assets to
Securityholders or the Company.
<PAGE>
-77-
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the date first written above.
FOREST OIL CORPORATION
[SEAL]
Attest: By:
----------------------------
[SEAL]
Attest: By:
----------------------------- ----------------------------
<PAGE>
EXHIBIT A
[FORM OF FACE OF SECURITY]
[If the Holder of this Security (as indicated below) is The
Depository Trust Company ("DTC") or a nominee of DTC, this Security is a
Global Security and the following two legends apply:
Unless this Security is presented by an authorized
representative of The Depository Trust Company ("DTC"), 55 Water Street,
New York, New York to the issuer or its agent for registration of transfer,
exchange or payment,l and such Security issued is registered in the name of
CEDE & CO., or such other name as requested by an authorized representative
of DTC, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY
OR TO ANY PERSON IS WRONGFUL, since the registered owner hereof, CEDE &
CO., has an interest herein.
Unless it is exchanged in whole or in part for Securities in
definitive registered form, this Security may not be transferred except as
a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC or by DTC or any such nominee to a successor of DTC or a
nominee of such successor.]
[The following is to be included if the Security is an Original
Issue Discount Security:]
[FOR PURPOSES OF SECTION 1373 AND 1375 OF THE UNITED STATES
INTERNAL REVENUE CODE OF 1986, AS AMENDED: (I) THE ISSUE DATE OF THIS
SECURITY IS ____________; (II) THE YIELD TO MATURITY IS ___%; (III) THE
ORIGINAL ISSUE DISCOUNT PER $______ FACE AMOUNT AT WHICH THE SECURITY IS
ISSUED IS $______; AND (IV) THE [EXACT] [APPROXIMATE] METHOD HAS BEEN USED
TO DETERMINE YIELD FOR THE ACCRUAL PERIOD BEGINNING ____________ AND ENDING
____________ AND THE AMOUNT OF THE ORIGINAL ISSUE DISCOUNT PER $______ FACE
AMOUNT ALLOCABLE TO THE ACCRUAL PERIOD BEGINNING ____________ AND ENDING
____________ IS $______].
<PAGE>
-2-
FOREST OIL CORPORATION
[Title of Security]
Rate of Interest Maturity Date Original Issue Date
---------------- ------------- -------------------
No. $
------------------------- ----------------------
Forest Oil Corporation, a corporation duly organized and
existing under the laws of the State of New York (herein called the
"Company"), for value received, hereby promises to pay to
or registered assigns, the principal sum of on the Maturity Date
shown above, and to pay interest thereon, at the annual rate of interest
shown above, from the Original Issue Date shown above or from the most
recent Interest Payment Date (as hereinafter defined) to which interest has
been paid or duly provided for, payable semi-annually on and
of each year and at maturity (an "Interest Payment Date"),
commencing on the first such date after the Original Issue Date, except
that if the Original Issue Date is on or after a Regular Record Date but
before the next Interest Payment Date, interest payments will commence on
the second Interest Payment Date following the Original Issue Date.
[reference to currency[ies] of payment and currency exchange
arrangements, if applicable.]
The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture, be
paid to the person in whose name this [name of Security] is registered at
the close of business on the Regular Record Date for any such Interest
Payment Date, which shall be the fifteenth calendar day (whether or not a
Business Day) preceding the applicable Interest Payment Date. Any such
interest not so punctually paid or duly provided for, and any interest
payable on such defaulted interest (to the extent lawful), will forthwith
cease to be payable to the Holder on such Regular Record Date and shall be
paid to the person in whose name this [name of Security] is registered at
the close of business on a special record date for the payment of such
defaulted interest to be fixed by the Company, notice of which shall be
given to Holders of [name of Series] not less than 15 days prior to such
special record date. Payment of the
<PAGE>
-3-
principal of and interest on this [name of Security] will be made at the
agency of the Company maintained for that purpose in [New York, New York
or other place of payment] and at any other office or agency maintained by
the Company for such purpose, in [reference to United States dollars
or other currency of payment]; PROVIDED, HOWEVER, that at the option of the
Company payment of interest, other than interest due on the Maturity Date,
may be made by check mailed to the address of the person entitled thereto
as such address shall appear in the Security Register. [Include the following,
if applicable:] Payments on the Maturity Date will be made in immediately
available funds against presentment of this [name of Security].
Reference is hereby made to the further provisions of this
[name of Security] set forth on the reverse hereof, which further
provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual
signature, this [name of Security] shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the FOREST OIL CORPORATION has caused this
instrument to be executed in its corporate name by the facsimile signature
of its duly authorized officers and has caused a facsimile of its corporate
seal to be affixed hereunto or imprinted hereon.
FOREST OIL CORPORATION
ATTEST: By:
------------------------ ------------------------
[Assistant] Secretary [Title of Officer]
<PAGE>
-4-
DATED:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the [name of Series] referred to in the
within-mentioned Indenture.
By:
---------------------------
Authorized Signatory
[REVERSE SIDE]
FOREST OIL CORPORATION
[Name of Security]
This [name of Security] is one of a duly authorized issue of
[name of Securities] of the Company (which term includes any successor
corporation under the Indenture hereinafter referred to) designated as its
[title of Series] (the "[name of Series]"), issued or to be
issued pursuant to an Indenture, dated as of , 199_ (the
"Indenture"), between the Company and _________________ as Trustee (the
"Trustee," which term includes any successor trustee under the Indenture);
and under [reference to Authorizing Resolution and/or supplemental
indenture (if any) relating to the Series]. The terms of this [name of
Security] include those stated in the Indenture and [reference to
Authorizing Resolution and/or supplemental indenture (if any) relating to
the Series] and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as in effect on the date of the Indenture.
Reference is hereby made to the Indenture and all [further] supplemental
indentures thereto for a statement of the respective rights, limitation of
rights, duties and immunities thereunder of the Company, the Trustee and
the Holders and of the terms upon which the [name of Security] are, and are
to be, authenticated and delivered.
This [name of Series] is a Series of Securities issued or to be
issued by the Company under the Indenture, and this Series is limited in
aggregate principal amount to $ . The Indenture provides that the
Securities of the
<PAGE>
-5-
Company referred to therein ("Securities"), including the [name of Series],
may be issued in one or more Series, which different Series may be issued in
such aggregate principal amounts and on such terms (including, but not
limited to, terms relating to interest rate or rates, provisions for
determining such interest rate or rates and adjustments thereto, maturity,
redemption (optional and mandatory), sinking fund, covenants and Events of
Default) as may be provided in or pursuant to the Authorizing Resolutions
and/or supplemental indenture (if any) relating to the several Series.
The [name of Series] are subordinated in right of payment, in
the manner and to the extent set forth in the Indenture, to the prior
payment in full of all Senior Indebtedness (as defined in the Indenture).
Each Holder by accepting a Security agrees to such subordination and
authorizes the Trustee to give it effect.
[The following to be included if the Securities are not
redeemable prior to maturity.]
This [name of Security] may not be redeemed prior to its
Maturity Date.
[The following paragraph, or other appropriate redemption
provisions, to be included if the Securities are Redeemable Securities:]
The [name of Series] are subject to redemption upon not less
than 30 nor more than 60 days' notice by mail, [the following clause to be
included if there is a Sinking Fund:] [(1) on [annual Sinking Fund
Redemption Date] in each year commencing with the year [year of first
Sinking Fund payment] through operation of the Sinking Fund at a Redemption
Price equal to their principal amount and (2)] [at any time or from time to
time] in whole or in part, at the election of the Company at a Redemption
Price equal to the percentage set forth below of the principal amount to be
redeemed for the respective twelve-month periods beginning
[ ] of the years indicated:
[Schedule of Redemption Prices]
<PAGE>
-6-
and thereafter at 100% of the principal amount thereof, together in each
case with accrued interest to the Redemption Date.
[The following paragraph, or other appropriate Sinking Fund
provision, to be included if there is a Sinking Fund for the Series:]
The Sinking Fund provides for the redemption on [first Sinking
Fund Redemption Date] and on [annual Sinking Fund Redemption Date] in each
year thereafter through [year of final Sinking Fund date] of not less than
[minimum required Sinking Fund redemption amount] principal amount not
more than [maximum permitted Sinking Fund redemption amount] principal
amount of [name of Series], [name of Series] purchased, acquired or redeemed
by the Company otherwise than by redemption through the Sinking Fund may be
credited against Sinking Fund requirements to the extent not previously so
credited.
[The following paragraph to be included if the Securities are
Redeemable Securities or Sinking Fund Securities:]
If an event of redemption of this [name of Security] in part
only, a new [name of Security] or [name of Series] for the unredeemed
portion hereof shall be issued in the name of the Holder hereof upon the
surrender hereof.
[The following paragraph to be included if the Securities are
not Original Issue Discount Securities:]
If an Event of Default, as defined in the Indenture and in the
Authorizing Resolution and/or supplemental indenture (if any) relating to
the [name of Series] (if there shall be any additional Events of Default
specified in respect of the [name of Series]), shall occur and be
continuing, the principal of all the [name of Series] may be declared due
and payable in the manner and with the effect provided in the Indenture.
[If the Securities are Original Issue Discount Securities,
insert schedule as to amounts which are payable on acceleration under
Section 7.02 and provable in bankruptcy under Section 7.09 from time to
time.]
[If Securities are convertible, add appropriate summary of
conversion terms and form for electing to convert.]
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the [name of
Series] under the Indenture at any time
<PAGE>
-7-
by the Company and the Trustee with the consent of the Holders of a majority
in aggregate principal amount of the Securities affected thereby, voting as a
single class (which may include the [name of Series]), at the time
outstanding. The Indenture also contains provisions permitting the Holders
of specified percentages in aggregate principal amount of the Securities at
the time outstanding to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this
[name of Security] shall be conclusive and binding upon such Holder and upon
all future Holders of this [name of Security] and of any [name of Security]
issued upon the registration of transfer hereof or in exchange herefor in
lieu hereof, whether or not notation of such consent or waiver is made upon
this [name of Security].
The Indenture provides that no Holder may pursue any remedy
under the Indenture unless the Trustee shall have failed to act after
notice of an Event of Default and written request by Holders of at least
25% in principal amount of the [name of Securities] of the applicable
Series and the offer to the Trustee of indemnity satisfactory to it;
however, such provision does not affect the right to sue for enforcement of
any overdue payment on any Security.
No reference herein to the Indenture and no provision of this
[name of Security] or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the principal
of and interest on this [name of Security] at the times, places and rates,
and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this [name of Security] is registrable
in the Security Register upon surrender of this [name of Security] for
registration of transfer at the agency of the Company provided for that
purpose duly endorsed by, or accompanied by a written instrument of
transfer in substantially the form accompanying this [name of Security]
duly executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new [name of Series], of authorized
denominations and for the same aggregate principal amount, will be issued
to the designated transferee or transferees.
The [name of Series] are issuable only in registered form
without coupons in denominations of [currency and minimum
<PAGE>
-8-
denomination] and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the
[name of Series] are exchangeable for a like aggregate principal amount of
[name of Series] of a different authorized denomination, as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchanges pursuant to Section 2.11, 3.08
or 10.05 in which case such transfer taxes or similar governmental charges
shall be paid by the Company).
Prior to due presentment of this [name of 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 this
[name of Security] is registered as the owner hereof for all purposes,
whether or not this [name of Security] be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
[Reference to Foreign Currencies]
All terms used in this [name of Security] which are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
Customary abbreviations may be used in the name of a [name of
Security] holder or any assignee, such as: TEN COM (= tenants in common),
TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right
of survivorship and not as tenants in common), CUST (= Custodian) and
U/G/M/A (= Uniform Gifts to Minors Act).
The Company will furnish to any [name of Security] holder of
record, upon written request, without charge, a copy of the Indenture.
Requests may be made to: Forest Oil Corporation, 1600 Broadway, Suite
2200, Denver, Colorado 80202, Attention: Corporate Secretary.
<PAGE>
-9-
ASSIGNMENT FORM
If you the holder want to assign this [name of Security], fill
in the form below and have your signature guaranteed:
I or we assign and transfer this [name of Security] to:
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
- -----------------------------------------------------------------------------
(Print or type name, address and zip code and
social security or tax ID number of assignees)
and irrevocably appoint, ______________________________________ agent to
transfer this [name of Security] on the books of the Company. The agent
may substitute another to act for him.
Dated: Signed:
------------------------ ----------------------
-------------------------------
(Sign exactly as name appears
on other side of this [name of
Security])
Signature Guarantee:
-----------------------------------------------------
NOTICE: Signature(s) must be guaranteed by a member firm of the New York
Stock Exchange or a commercial bank or trust company.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
Forest Oil Corporation:
We consent to the incorporation by reference in the registration statement
on Form S-3 of Forest Oil Corporation of our report dated February 20, 1996,
relating to the consolidated balance sheets of Forest Oil Corporation and
subsidiaries as of December 31, 1995 and 1994, and the related consolidated
statements of operations, shareholders' equity, and cash flows for each of the
years in the three-year period ended December 31, 1995, which report appears in
the December 31, 1995 Annual Report on Form 10-K of Forest Oil Corporation and
to the reference to our firm under the heading "Experts" in the registration
statement. Our report refers to a change in the method of accounting for oil and
gas sales in 1994, and changes in the method of accounting for income taxes and
postretirement benefits other than pensions in 1993.
KPMG PEAT MARWICK LLP
Denver Colorado
November 12, 1996
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors and Stockholders
Forest Oil Corporation:
We consent to the incorporation by reference in the Registration Statement
on Form S-3 of Forest Oil Corporation of our report dated February 1, 1995
relating to the consolidated balance sheets of ATCOR Resources Ltd. at December
31, 1994 and 1993, and the consolidated statements of earnings and retained
earnings and changes in financial position for each of the years in the three
year period ended December 31, 1994, which report is incorporated by refrence in
the Current Report on Form 8-K/A of Forest Oil Corporation, dated January 31,
1996, from the registration statement, as amended, (No. 33-64949) on Form S-2 of
Forest Oil Corporation.
PRICE WATERHOUSE
Calgary, Alberta
November 12, 1996
